camera hearing in Pennsylvania

2019Generally, where a party seeks to admit evidence implicating Rape Shield protections, the party submits a proffer to the trial court for an in camera hearing so that the trial court may conduct a balancing test, pursuant to Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), of the following three factors: "(l) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive to challenge credibility." Commonwealth v

2019The Rape Shield Law may not be used to exclude relevant evidence showing witness' bias or to attack a witness' credibility, but not all material evidence is necessarily admissible, as explained in Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985): The balancing determination between probative value and unfair prejudice should be made by the trial court at an in camera hearing where the court should determine the following as a matter of record to be preserved for appellate review: (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the

2025The Tender Years exception provides for the admissibility of a hearsay statement “when it has sufficient indicia of reliability as determined from the time, content, and circumstances of its making.” Commonwealth v. O'Drain, 829 A.2d 316, 320 (Pa.Super. 2003) (citation omitted).

2005Commonwealth v. O’Drain, 829 A.2d 316, 320 (Pa.Super.2003). ¶ 11 In the case sub judice, the trial court conducted an in camera hearing immediately preceding the commencement of trial.

2014Ch. 31 (relating to sexual offenses) - 12 - J-S27040-14 performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. 42 Pa.C.S.A. § 5985.1(a) As we have held in Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa. Super. 200

2003Ch. 31 (relating to sexual offenses) performed with or on the child by another, not otherwise ad *320 missible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. (b) Notice required.—A statement otherwise admissible under subsection (a) shall not be received into evidence unl

2019Factors the court may consider when determining reliability include, but are not limited to, “the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age and the lack of a motive to fabricate.” Commonwealth v. Delbridge, 578 Pa. 641, 675 , 855 A.2d 27, 47 (2003); Lyons, supra. -7- J-S20031-19 “The Tender Years Statute [also] requires that an in camera hearing take place to determine whether a child witness is unavailable to testify.” Id. at 254 (citing 42 Pa.C.S.A § 5985(a)).

2019Factors the court may consider when determining reliability include, but are not limited to, “the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age and the lack of a motive to fabricate.” Commonwealth v. Delbridge, 578 Pa. 641, 675 , 855 A.2d 27, 47 (2003); Lyons, supra. -7- J-S20031-19 “The Tender Years Statute [also] requires that an in camera hearing take place to determine whether a child witness is unavailable to testify.” Id. at 254 (citing 42 Pa.C.S.A § 5985(a)).

2019Regarding consent, “evidence cannot be used to bolster a consent defense when the admitted purpose of the evidence is to prove that the victim acted in conformity with past behavior on the date in question.” Commonwealth v. Guy, 686 A.2d 397, 401 (Pa. Super. 1996).

2018K.S.F., 102 A.3d at 483-484 .12 Stated more concisely, evidence of a victim’s sexual history may be admissible if “the evidence is relevant to exculpate the accused, more probative than prejudicial, and non-cumulative in nature.” Commonwealth v. Guy, 686 A.2d 397, 401 (Pa. Super. 1996), appeal denied, 695 A.2d 784 (Pa. 1997).13 Here, in his Rape Shield Motion, Raubenstine’s proffered evidence of the victim’s subsequent sexual encounter with R.B. was a challenge to the victim’s ____________________________________________ 12 “Evidence is relevant if it has any tendency to make a fact more or le

1994At the trial level, the court must conduct an in camera hearing at which they must determine: 1) whether the proffered evidence is relevant to the defense at trial; 2) whether the proffered evidence is cumulative of evidence otherwise admissible at trial; and 3) whether the proffered evidence is more probative than prejudicial.” Commonwealth v. Wall, 413 Pa.Super. 599, 615 , 606 A.2d 449, 457 (1992) (citations omitted), appeal denied, 532 Pa. 645 , 614 A.2d 1142 (1992).

1994At the trial level, the court must conduct an in camera hearing at which they must determine: 1) whether the proffered evidence is relevant to the defense at trial; 2) whether the proffered evidence is cumulative of evidence otherwise admissible at trial; and 3) whether the proffered evidence is more probative than prejudicial.” Commonwealth v. Wall, 413 Pa.Super. 599, 615 , 606 A.2d 449, 457 (1992) (citations omitted), appeal denied, 532 Pa. 645 , 614 A.2d 1142 (1992).

2023See Interest of D.C., 263 A.3d 326, 333 (Pa. Super. 2021) (as an exception to the general rule against hearsay, Tender Years Hearsay Act provides: “a court may admit a child-victim’s out-of-court statement for the truth of the matter asserted when (1) ‘the court finds, in an in camera hearing, that the evidence is relevant and that the time, content[,] and circumstances of the statement provide sufficient indicia of reliability;’ and (2) the child ‘is unavailable as a witness’”). 3 This motion in limine, along with other filings, were not included in the original certified record.

2023“The statute requires ‘indicia of reliability’ which ‘include, inter alia, the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age, and the lack of a motive to fabricate.’” Interest of D.C., 263 A.3d 326, 335 (Pa. Super. 2021) (quoting Commonwealth v. Strafford, 194 A.3d 168, 173 (Pa. Super. 2018)).

2019Generally, where a party seeks to admit evidence implicating Rape Shield protections, the party submits a proffer to the trial court for an in camera hearing so that the trial court may conduct a balancing test, pursuant to Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), of the following three factors: "(l) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive to challenge credibility." Commonwealth v

2016When determining the admissibility of evidence that the Rape Shield Law may bar, trial courts hold an in camera hearing and conduct a balancing test consisting of the following factors: “(1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; - 23 - J-S33010-16 (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility.” Commonwealth v. K.S.F., 102 A.3d 480 , 483–84 (Pa. Super. 2014) (citations omitted).

2023See Commonwealth v. Lyons, 833 A.2d 245, 254 (Pa. Super. 2003) (“Tender Years Statute requires that an in camera hearing take place to determine whether a child witness is unavailable to testify”).

2019Factors the court may consider when determining reliability include, but are not limited to, “the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age and the lack of a motive to fabricate.” Commonwealth v. Delbridge, 578 Pa. 641, 675 , 855 A.2d 27, 47 (2003); Lyons, supra. -7- J-S20031-19 “The Tender Years Statute [also] requires that an in camera hearing take place to determine whether a child witness is unavailable to testify.” Id. at 254 (citing 42 Pa.C.S.A § 5985(a)).

2020When determining the admissibility of evidence that the Rape Shield Law may bar, trial courts hold an in camera hearing and conduct a balancing test consisting of the following factors: “(1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility.” Id.

2020When determining the admissibility of evidence that the Rape Shield Law may bar, trial courts hold an in camera hearing and conduct a balancing test consisting of the following factors: “(1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility.” Id.

2023Thus, to secure an in camera hearing, a defendant must show that the proposed evidence is “relevant to exculpate the accused, more probative than prejudicial, and non-cumulative in nature.” Largaespada, 184 A.3d at 1007 (citation omitted). -5- J-S29010-23 Here, the trial court found Appellant had not met the threshold for an in camera hearing.

2023Once a defendant meets this threshold requirement, the court is then required to hold an in camera hearing to determine whether the evidence is “relevant to exculpate the accused, more probative than prejudicial, and non-cumulative in nature.” Id.; Largaespada, 184 A.3d at 1007 (citation omitted).

2019Generally, where a party seeks to admit evidence implicating Rape Shield protections, the party submits a proffer to the trial court for an in camera hearing so that the trial court may conduct a balancing test, pursuant to Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), of the following three factors: "(l) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive to challenge credibility." Commonwealth v

1992Commonwealth v. Smith, supra, 410 Pa.Superior Ct. at 371, 599 A.2d at 1344 ; Commonwealth v. Nieves, supra, 399 Pa.Superior Ct. at 290, 582 A.2d at 347 ; Commonwealth v. Black, 337 Pa.Super. 548, 557-58 , 487 A.2d 396, 401 (1985) ( en banc ).

2025Factors to consider when determining whether an indicia of reliability exists include “the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age, and the lack of a motive to fabricate.” Commonwealth v. Strafford, 194 A.3d 168, 173 (Pa.Super. 2018) (brackets and citation omitted).

2023“The statute requires ‘indicia of reliability’ which ‘include, inter alia, the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age, and the lack of a motive to fabricate.’” Interest of D.C., 263 A.3d 326, 335 (Pa. Super. 2021) (quoting Commonwealth v. Strafford, 194 A.3d 168, 173 (Pa. Super. 2018)).

2023Cf. Fidler v. Cunningham-Small, 871 A.2d 231, 238 (Pa. Super. 2005) (“the PFA Act does not mandate the type of evidence upon which the court must rely, [but] it does require that some concrete evidence of serious emotional distress be presented . . . [however,] in the absence of expert witnesses, the trial court’s in camera examination of the child is the better practice in order to insure that the determination of unavailab[ility] is well-founded) (emphasis added).

2020In making this determination, the court may do all of the following: (1) Observe and question the child, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting. 42 Pa.C.S. § 5985.1. - 15 - J-S37028-20 “Even though the Act does not mandate the type of evidence upon which the court must rely, it does require that some concrete evidence of serious emotional distress be presented.” Fidler v. Cunningham-Small, 871 A.2d 231, 238 (Pa. Super. 2005). “[I]n the absence of e

2020Additionally, we have previously recognized a constitutional exception to this rule for evidence of the victim’s bias or motive for fabrication because “the Rape Shield Law may not be used to exclude relevant evidence showing witness bias or attacking a witness’ credibility.” Commonwealth v. Palmore, 195 A.3d 291, 295 (Pa. Super. 2018) (quoting Commonwealth v. Holder, 815 A.2d 1115 , 1119 n.1 (Pa. Super. 2003)) (brackets omitted).

2019If the proffered evidence is not speculation or conjecture, the trial court must conduct an in camera hearing.” Commonwealth v. Palmore, 195 A.3d 291, 295 (Pa. Super. 2018) (citations omitted).

2016“The tender years exception allows for the admission of a child’s out-of-court statement because of the fragile nature of young victims of sexual abuse.” Commonwealth v. Lukowich, 875 A.2d 1169, 1172 (Pa.Super.2005), appeal denied, 885 A.2d 41 (Pa.2005).

2006Admissibility of certain statements (a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in [18 Pa.C.S.A., chapter 31, relating to sexual offenses], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and th

2016The Rape Shield Law “prevent[s] a trial from shifting its focus from the culpability of the accused toward the virtue and chastity of the victim [and] exclude[s] irrelevant and abusive inquiries regarding prior sexual conduct of sexual assault complainants.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citations and footnote omitted).

2015See id. “[A] defendant who desires to introduce evidence of the victim’s prior sexual conduct must file a written motion and make a specific offer of proof prior to trial.” Burns, supra, at 690 (emphasis added) (citations omitted).

2016The Payne Court specifically referenced Commonwealth v. Pritchett, 312 A.2d 434 (Pa. Super. 1973) as supporting authority, yet Pritchett held that "disclosure should be denied or special precautions ordered if the Commonwealth makes an affirmative and convincing showing of exceptional circumstances or compelling reasons." Pritchett, 312 A.2d at 439 (emphasis added).

2016The Payne Court specifically referenced Commonwealth v. Pritchett, 312 A.2d 434 (Pa. Super. 1973) as supporting authority, yet Pritchett held that "disclosure should be denied or special precautions ordered if the Commonwealth makes an affirmative and convincing showing of exceptional circumstances or compelling reasons." Pritchett, 312 A.2d at 439 (emphasis added).

2016See Kriner, 915 A.2d at 656 .

2014Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), -7- J-S29022-14 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii

1991These areas need to be explored, and I would therefore remand for an in camera hearing similarly ordered in Commonwealth v. Black, 337 Pa.Super. 548 , 487 A.2d 396 (1985), and Commonwealth v. Johnson, 389 Pa.Super. 184 , 566 A.2d 1197 (1989).

1991These areas need to be explored, and I would therefore remand for an in camera hearing similarly ordered in Commonwealth v. Black, 337 Pa.Super. 548 , 487 A.2d 396 (1985), and Commonwealth v. Johnson, 389 Pa.Super. 184 , 566 A.2d 1197 (1989).

2023Id. at 446 .

2014Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), -7- J-S29022-14 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii

1986The problem resolved was one of semantics, and the proposed evidence regarding the victim’s past sexual conduct became subject to protection by our Rape Shield Law. 6 The Supreme Court in Commonwealth v. Majorana, 503 Pa. 602 , 470 A.2d 80 (1983), charged all Pennsylvania courts with balancing the probative value of relevant evidence *206 against its prejudicial value in rape cases. 7 In keeping with our opinion in Commonwealth v. Black, 337 Pa.Super. 548 , 487 A.2d 396 (1985), the trial court conducted an in camera hearing for the purpose of determining whether the proposed evidence of the vi

1986The problem resolved was one of semantics, and the proposed evidence regarding the victim’s past sexual conduct became subject to protection by our Rape Shield Law. 6 The Supreme Court in Commonwealth v. Majorana, 503 Pa. 602 , 470 A.2d 80 (1983), charged all Pennsylvania courts with balancing the probative value of relevant evidence *206 against its prejudicial value in rape cases. 7 In keeping with our opinion in Commonwealth v. Black, 337 Pa.Super. 548 , 487 A.2d 396 (1985), the trial court conducted an in camera hearing for the purpose of determining whether the proposed evidence of the vi

2014Scott contends that where, as here, the witnesses are under the Brief at 7, quoting Rosche v. McCoy, 156 A.2d 307, 311 (Pa. 1959). statements should have been considered in an in camera hearing pursuant to the tender years statute, 42 Pa.C.S. § 5985.1.17 ____________________________________________ 17 The Tender Years statute provides, in pertinent part: (a) General rule.--An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses [relating to sexual assault] not otherwise admissible by stat

2014Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa. Super. 1999)(quoting Rosche v. McCoy, 156 A.2d 307, 310 (Pa. 1959)).