                                 [J-87-2014]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              WESTERN DISTRICT

   CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


IN THE INTEREST OF: N.C., A MINOR          :   No. 5 WAP 2014
                                           :
                                           :   Appeal from the Order of the Superior
APPEAL OF: COMMONWEALTH OF                 :   Court entered August 8, 2013 at No. 1258
PENNSYLVANIA                               :   WDA 2012, vacating the Order of the Court
                                           :   of Common Pleas of Clearfield County
                                           :   entered July 27, 2012 at
                                           :   CP-17-JV-0000071-2012 and remanding.
                                           :
                                           :   ARGUED: October 7, 2014


                                       OPINION

MR. JUSTICE STEVENS                              DECIDED: DECEMBER 15, 2014

      In this fact-specific appeal by the Commonwealth, we consider whether the

Superior Court erred in holding the right of a juvenile accused to be confronted with a

witness against him conferred by the Confrontation Clause of the Sixth Amendment to the

United States Constitution was violated where the juvenile court admitted into evidence

an out-of-court, video-taped, forensic interview of a child complainant under the Tender

Years Hearsay Act (“TYHA”), even though defense counsel did not cross-examine the

child complainant who had taken the witness stand at the juvenile’s contested

adjudication hearing. In light of the unique circumstances of the instant matter wherein

the Commonwealth conceded continued questioning of the unconversable child

complainant on direct examination would have been futile, and the juvenile court

suggested she be removed from the witness stand, we hold the admission of the
recorded forensic interview of the child complainant violated the juvenile accused’s right

to confrontation under the Sixth Amendment.      Accordingly, we affirm.

      On November 5, 2011, the mother (hereinafter “Mother”) of the three-year-old child

complainant (hereinafter “A.D.”)1 entrusted A.D. and her other minor child, S.D., to the

care of A.D.’s paternal grandmother (hereinafter “Grandmother”) at the latter’s home at

approximately 8:30 a.m.2 Later that afternoon, Grandmother called Mother and informed

her A.D. was upset and wanted to go home. Mother brought A.D. home and noticed she

was lethargic. Without any provocation, A.D. told Mother “my pee pee hurts,” and that

Appellee N.C. (hereinafter “N.C.”) had touched her there. 3        Mother checked A.D’s

pudendum and noticed it appeared red and irritated. Thinking the redness was a rash,

Mother applied Vaseline to the affected area and called N.C.’s father who also was

Grandmother’s boyfriend. N.C.’s father told Mother that N.C. had not been at the home

all day, and she, thus, believed his absence meant it was not possible for N.C. to have

touched A.D. inappropriately.

      Mother did not take any further action on November 5, 2011; however, several

days later, N.C.’s father admitted to Mother that N.C., in fact, had been present at the

home on November 5th. Upon receiving this new information, Mother took A.D. to the

Brockway Police Department where she informed the Chief of Police of A.D.’s allegations.

An investigation ensued pursuant to which A.D. was questioned by a forensic interviewer

at Western Pennsylvania Cares for Kids Child Advocacy Center (hereinafter “Western

1 A.D. is now six years old, as her date of birth is March 21, 2008; she was four years old
at the time of the adjudicatory hearing on May 10, 2012.
2 A.D. and S.D. often visited with Grandmother for periods of time which periodically

included overnight stays to accommodate Mother’s work schedule.
3 N.C.’s date of birth is June 28, 1997.




                                     [J-87-2014] - 2
Pennsylvania Cares”), a facility wherein trained individuals interview children who have

been abused or who are suspected of having been abused. A.D. disclosed to the

forensic interviewer that N.C. had touched her pudendum, and she demonstrated digital

penetration on an anatomical doll after making this revelation. Following November 5,

2011, and the interview at Western Pennsylvania Cares, A.D. told Mother at least two or

three additional times that N.C. “touched her pee pee.”

          The Commonwealth filed a juvenile petition wherein it alleged N.C. had

committed various delinquent acts against A.D. and charged him with three counts each

of aggravated indecent assault4 and indecent assault.5 The Commonwealth also filed

an omnibus pre-trial motion wherein it requested that the juvenile court admit into

evidence A.D.’s statements to both Mother and the forensic interviewer regarding the

alleged assault pursuant to the TYHA6 and that due to A.D’s tender age, the juvenile

court permit certain special procedures during the presentation of her testimony.



4   18 Pa.C.S. §§ 3125(a)(1), (a)(7), (b).
5   18 Pa.C.S. §§ 3126 (a)(1), (a)(7), (a)(8).
6   The TYHA provides, in relevant 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 enumerated in 18 Pa.C.S. Chs. 25
         (relating to criminal homicide), 27 (relating to assault), 29 (relating to
         kidnapping), 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:
(continuedJ)

                                        [J-87-2014] - 3
      Following the April 13, 2012, hearing held on N.C.’s motion, the juvenile court

entered an Opinion and Order on April 17, 2012, wherein it stated that as the

Commonwealth had indicated it intended to place A.D. on the witness stand and question

her on direct examination, she would be made available for cross-examination and

confrontation by N.C.; therefore, the juvenile court refrained from considering A.D.

unavailable and explained it would look to the TYHA for the purpose of deciding whether

A.D.’s hearsay statements would be admissible. The juvenile court further noted it was


(Jcontinued)

      (i) testifies at the proceeding; or

      (ii) is unavailable as a witness.

      (a.1) Emotional distress.—In order to make a finding under subsection
      (a)(2)(ii) that the child is unavailable as a witness, the court must determine,
      based on evidence presented to it, that testimony by the child as a witness
      will result in the child suffering serious emotional distress that would
      substantially impair the child's ability to reasonably communicate. In 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 of any other person, such as a
      person who has dealt with the child in a medical or therapeutic setting.


                                             ***
42 Pa.C.S.A. §§ 5985.1(a), (a.1). In addition, Rule 802 of the Pennsylvania Rules of
Evidence states: “Hearsay is not admissible except as provided by these rules, by other
rules prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802. The
issue of whether or not the Commonwealth met its statutory burden under the TYHA is not
before us.




                                       [J-87-2014] - 4
uncontested that A.D.’s out-of-court statements were relevant to the charges brought

against N.C., but it found that certain statements she had made to Mother would be

inadmissible at the adjudicatory hearing because they lacked sufficient indicia of reliability

in that the specific time at which they were made and the circumstances surrounding

those spontaneous statements were not clear. Notwithstanding, the juvenile court did

determine that as the time and date of A.D.’s initial assertions to Mother and of those she

made during the forensic interview were known, the Commonwealth would be allowed to

introduce at the adjudicatory hearing the declarations A.D. made to her Mother on

November 5, 2011, as well as the complete videotaped interview made at Western

Pennsylvania Cares on November 23, 2011, provided that A.D. would testify at that

hearing. See Trial Court Opinion, 4/17/12 at 4-6 and Order of Court, 4/17/12.

       The adjudicatory hearing was held on May 10, 2012, and it commenced with the

competency portion of questioning. At that time, the prosecutor and defense counsel

questioned A.D. generally regarding her name, age, family, caregivers and her ability to

discern the truth from a lie. N.T. Hearing, 5/10/12, at 8-24.7 A.D. both verbalized her

responses to such queries and nodded or shook her head, despite the efforts of counsel

and of the juvenile court to encourage her to articulate all responses. Ultimately, the

juvenile court determined A.D. was not incompetent to testify under Rule 601 of the



7 As A.D. was a child under the age of 14 who had been called to testify as a witness, the
juvenile court was required to make an independent determination of competency, which
necessitated a finding that A.D. possessed: a capacity to communicate, including both an
ability to understand questions and to frame and express intelligent answers; the mental
capacity to observe the actual occurrence and the capacity of remembering what it is that
he is or she is called to testify about; and a consciousness of the duty to speak the truth.
See Commonwealth v. Walter, ___ Pa. ____, ____, 93 A.3d 442, 451 (2014).



                                       [J-87-2014] - 5
Pennsylvania Rules of Evidence and directed the prosecutor to commence direct

examination. Id.8

        The prosecutor asked A.D. whether she knew N.C. and whether he was present

in the courtroom, and A.D. nodded yes and pointed to N.C. Id. at 25-26. When the

prosecutor inquired if she wished to discuss N.C., A.D. shook her head in the negative.

She reacted the same way when asked whether talking about him made her happy and

whether she liked him, had ever played games with him, had been at the same house with

him, or had ever had fun with him.        Id. at 26-27.   At this juncture, the prosecutor

addressed A.D. as follows:

               Okay. [A.D.], I need to ask you this again. And I don’t want you to
       have to be here any longer, but I have to ask you these things. And I have
       to ask you to actually talk, because [the juvenile court] can’t hear you if you
       don’t talk. And he has really good ears. So I know he’ll hear you if you do
       talk. Okay?

Id. at 27.

       Despite the prosecutor’s instruction, A.D., once again, shook her head when

asked if she ever had had fun with N.C. and was unresponsive when the prosecutor

inquired whether there was a time when she did not have fun with N.C. Id. at 28. A.D.

shook her head when asked if anything bad had ever happened to her around N.C. and

failed to react at all when the prosecutor queried if anything had happened to her while


8 Under Pa.R.E. 601(b), a court may deem an individual to be incompetent to testify if the
court determines that due to a mental condition or immaturity the individual:
       (1) is, or was, at any relevant time, incapable of perceiving accurately;
       (2) is unable to express himself or herself so as to be understood either
       directly or through an interpreter;
       (3) has an impaired memory; or
       (4) does not sufficiently understand the duty to tell the truth.
Pa.R.E. 601(b).



                                      [J-87-2014] - 6
she was with N.C. that she did not like, at which time A.D.’s father requested that he be

permitted to encourage A.D. to speak. Id. Defense counsel objected, and a short

recess was taken so that A.D. could be removed from the courtroom. Defense counsel

then expounded that the basis for his objection was the concern that any participation in

the questioning by A.D.’s father would affect her responses. Id. at 29-31. At this early

stage of the proceeding, the prosecutor stated “[A.D.] clearly does not want to talk about

this. That’s obviously, for the [c]ourt to decide, but I would submit that she does not want

to talk about N.C.” Id. at 30. Following further discussion among the juvenile court and

counsel, it was agreed that when A.D. returned to the courtroom, she would be permitted

to sit on her father’s lap so that she might feel more comfortable. Id. at 31-32.

       A.D. initially smiled when she realized she would be testifying from a new vantage

point, and after assuring her she was safe and encouraging her to tell the truth, the

prosecutor resumed questioning. A.D. responded to the prosecutor’s questions about

her comfort level, whether she knew she was safe and whether she could remember the

prosecutor’s name with head gestures and nods.            She replied “Yeah” when the

prosecutor inquired:    “Can you --- Show me that you can talk. Can you say yes? . . .

Can you prove to [the trial court] that you can talk? You can say yes to him. Can you

say yes? . . . Now, let’s keep talking instead of just nodding your head, okay? Can we

keep talking?” Id. at 33-34.    However, A.D. nodded positively when asked if she knew

and liked N.C.    She shook her head in the negative when the prosecutor inquired

whether he ever played games with her, pretended that he was a shark, ever touched her,

or if she wished to talk about whether N.C. ever had touched her. Id. at 34-35. A.D.

then hugged her father, and while the prosecutor assured her it was acceptable for her to




                                      [J-87-2014] - 7
do so, he reminded her it was important for her to be truthful so that she could avoid being

placed on a time out. Id. at 36.9

        Though A.D. smiled when asked if she wished to tell the truth, she was reticent

when next asked if N.C. had ever touched her and began to play with her father’s hands

by twisting his fingers.   Id. at 36. A.D. continued to shake her head or respond “Uh-uh”

to additional queries concerning whether N.C. ever touched her as is evident in the

following excerpt from her direct examination:

              [The prosecutor]: [A.D.], tell me, can you tell me the truth on this, do
       you want to talk about [N.C.]?
              [A.D.]: Uh-uh.
              [The prosecutor]: Why don’t you want to talk to me about [N.C.]?
       You have to answer that, honey. Okay. Why don’t you want to talk to me
       about [N.C.]? Can you tell me nice and loud with your voice?
              [A.D.]: Uh-uh.
              [The prosecutor]: You won’t tell me?
              [A.D.]: (Witness shakes head).
              [The prosecutor]: Why won’t you tell me?
              [A.D.]: (Witness is twisting dad’s fingers).
              [The prosecutor]: [A.D.], did you ever tell anybody else--
              [A.D.]: (Witness shakes head).
              [The prosecutor]:-- about [N.C.]? Did you ever tell anyone else about
       [N.C.]?
              [A.D.]: (No response). (Witness is fidgety).
              [The prosecutor]: Can you look at me, honey?
              [A.D.]: (Witness shakes head).
              [The prosecutor]: She shook her head no. [A.D.], look at me.
              [A.D.]: (No response).
              [The prosecutor]: Let the record reflect she won’t even look at me.
              [The prosecutor]: [A.D.], honey, I’m not your daddy, but would you
       please answer my questions?
              [A.D.]: (Witness shakes head).
              [The prosecutor]: And you’re saying no. Why won’t we talk about
       [N.C.]? Why can’t we talk about [N.C.]? Can you just tell me that out loud?
              [A.D.]: (Witness shakes head).
              THE COURT: Can you tell me why, [A.D.]?

9A.D. had indicated that she would be put on a time-out if she told a lie or did something
wrong during the competency portion of the hearing. N.T. Hearing, 5/10/12, at 18-19.



                                      [J-87-2014] - 8
               [A.D.]: I want to go home.
               [The prosecutor]: She said, “I want to go home.” For the record, I
       think [the court reporter] caught it.
               THE COURT: [A.D.], [A.D.], I can let you go home it you tell me
       why.
               [A.D.]: (No response).
               [The prosecutor]: Honey, we have to know why?
               [A.D.]: I want to go home.
               [The prosecutor]: I know you want to go home, honey, but we have
       to ask you. We’re not trying to be mean. We’re not trying to be mean,
       okay. Can you tell us why you don’t want to talk about [N.C.]?
               [A.D.]: I want to go home.
               [The prosecutor]: I know you want to go home. You’ve told me
       that, but I have to ask you and you need to answer me[.]
               [A.D.]: Uh-uh.
               [The prosecutor]: Yeah, you do. Yeah, you do.
               [A.D.]: Uh-uh.
               [The prosecutor]: I know you don’t want to answer me. You need
       to tell me why. Why don’t you want to talk about [N.C.]?
               [A.D.]: (Witness is twirling her hair). I want to go home.
               [The prosecutor]: I know you want to go home, honey. You told
       me that. I know that. Okay. But I’m not going to say you can go home. I
       want to know why you won’t talk about [N.C.]. Have you ever been in the
       same house with [N.C.]?
               [A.D.]: Uh-uh.
               [The prosecutor]: I don’t know if we should take a break, Your
       Honor, and give her a break from this and come back.

Id. at 37-39.

       Following this line of questioning, the juvenile court indicated a ten minute break

should ensue to allow A.D. a chance to take a brief walk outside. A.D. left the courtroom

for the second time, at which time defense counsel objected to any further questioning of

the child, and the prosecutor responded as follows:

             [Defense counsel]: Just for the record, Your Honor, I would like to
       note our objection to continuing the questioning in [the] face of the child’s
       obvious assertions that she doesn’t want to participate. She wants to go
       home. She’s not responsive to [the prosecutor’s] questioning to any
       degree that’s being helpful to the relevant facts of this particular case. It’s
       our position that to continue to cajole her or otherwise to force her into
       answering questions is rapidly approaching a coercive situation with this
       young child. And unless there’s some particular reason why we should



                                      [J-87-2014] - 9
       continue this, we would simply have to object to any continued type of
       coercion into forcing her into answering questions.

                [The prosecutor]: Your Honor, she’s a witness on the witness
       stand. She’s four years old. Everyone who has had children knows that
       children will try to manipulate you, and they will try to be obstinate, and they
       will try to do anything they can to be difficult sometimes to get out of dealing
       with an unpleasant duty. And she does not want to talk right now. I
       think we all can agree on that. She doesn’t want to talk. So I wanted
       to take a short break, a short break to see if that will help her decide, you
       know, that she’s not as weary of this process. Because she’s been up
       there for quite a while. I didn’t take note of the time when we first started
       for the record, but she’s been up there for a while now. And I’m hoping that
       one final chance of talking to her, maybe she will be willing to talk. But at
       the end, she didn’t want to answer anything. I mean, I think the
       record--I think the Court, obviously, can make these observations of
       his own accord, but she was extremely not wanting to talk.

 Id. at 40-41. (Emphasis added).

       The juvenile court overruled defense counsel’s objection at that juncture and in

support of its decision declared:

              THE COURT: I’ll say this much for the record, not considering that
       she’s a four-year-old, but had she been a 14-year-old, I would consider
       whether officers should be charging her with false statements. Now, I
       know that’s not a situation to get into with a four-year-old, but I intend to let
       the record reflect, hey, you have to say something here.
              Now, if she comes back and she says nothing, we have to cross the
       next hurdle on what’s going to happen with this. But I just don’t want to let
       the prosecution that’s been going on since last November go with the first
       sign.
              Certainly, I think anyone would be nonhuman if we don’t feel a little
       discomfort with a four-year-old on the stand. So we’ll see what happens
       when we come back.
              Objection is noted but overruled at this point.

Id. at 41-42.

       Before A.D. resumed testifying, the prosecutor informed the juvenile court she

wanted to sit with her maternal grandmother, and she was permitted to do so. Though

she answered “Nowhere” when questioned about where she had gone during the recess,




                                      [J-87-2014] - 10
she nodded or shook her head in response to other questions concerning her activity at

that time.   She was totally unresponsive when asked about N.C., and the record

indicates A.D. also began fidgeting and playing with her grandmother’s hands when his

name was mentioned. The following exchange ensued:

               [The prosecutor]: Okay, honey, I just want to ask you a few more
          things, okay. I have to ask you these things. It’s my job, okay, honey?
               [A.D.]: (Witness nodded head).
               [The prosecutor]: Now, [N.C.], do you want to talk about him?
               [A.D.]: (Witness shakes head).
               [The prosecutor]: You don’t. Can you tell us why you don’t want
          to talk about him? Why?
               [A.D.]: (No response).
               [The prosecutor]: Do you like [N.C.]?
               [A.D.] (No response).
               [The prosecutor]: Can you hear me, honey?
               [A.D.]: Uh-uh.
               [The prosecutor]: You can’t hear me? Honey, you answered my
          questions really good first thing this morning. You were doing really
          good. Do you remember the apple? Do you remember talking about
          the apple?[10]
               [A.D.]: (No response).
               [The prosecutor]: Honey, let me ask you this, okay. Can you tell
          me what do you think of [N.C]? Is he nice?
               [A.D.]: Uh.
               [The prosecutor]: Is that no? What is that?
               [The prosecutor]: Your Honor, let the record reflect that [A.D.]’s
          curling up in a fetal position into a ball[.]
              THE COURT: The record will reflect that.
              [The prosecutor]: Honey, is [N.C.] nice?
              [A.D.]: (No response).
              [The prosecutor]: She’s further curling up in a ball.
              THE COURT: The record will reflect that.
              [The prosecutor]: Your Honor, I don’t know if the [c]ourt wants to
      inquire at all. I don’t think I’m going to get anywhere.




10 A.D. had been shown a photograph of an apple as part of a line of questioning
designed to ascertain her ability to discern the truth from a lie. See N.T. Hearing,
5/10/12, at 12-14.




                                     [J-87-2014] - 11
                THE COURT: [A.D.]. [A.D.], can you look at me? [A.D.]. [A.D.] is
       not acknowledging me so, [A.D.’s father] why don’t you go ahead and take
       her.[11]
                . . . [defense counsel], do you want to ask her any questions?[12]
                [Defense counsel]: No.
                THE COURT: Okay. Just wanted to get that clear before I
       entertain--okay. Go ahead. I think I will, for the record, I mean, my position
       in calling her was to see if she would testify so we don’t have to inquiry [sic]
       what went on in the break, but she’s not going to testify.

Id. at 44-46 (Emphasis added).

       Later in the hearing, following the testimony of the forensic interviewer and over

defense counsel’s objection on the grounds that it constituted testimonial evidence and its

admission would be violative of N.C.’s right to confrontation under the Sixth Amendment,

the juvenile court admitted the digital video disc (hereinafter “DVD”) of the forensic

interview into evidence. Id. at 77, 87.    In support of its ruling, the juvenile court stated

the following:

               [THE COURT]: I thought we pushed her as far as any person
       should reasonably be pushed, and she didn’t testify on the issue that
       we’re here for, but-- I have my evidence book back open because I found
       her to be competent because she sufficiently, in my mind, under certain
       duties told the truth. And she was able to express herself so that she could
       be understood.
               Now, the fact of the matter is she either refused to express herself or
       -- and for that matter, I mean, I guess to the extent she expressed herself on
       this issue, because after I swore her in, I found her to be competent. She
       expressed that nothing happened so -- or that she didn’t ever play with
       [N.C.]; they were never in the same house, [N.C.] I mean, et cetera, et
       cetera. She nodded her head a few times and you made sure that the
       record reflected that she said no.
               So the question that I was looking for is some definition of what the
       legislature meant by testifying in an proceeding. As I said in the earlier

11 In its Opinion, the Superior Court erroneously indicates the juvenile court was
addressing defense counsel at this juncture. In re N.C., ___ Pa. Super. ____, ____, 74
A.3d 271, 276 (2013) (reargument denied October 1, 2013).
12 The Superior Court misquotes this query as “[D]o you have any questions?” Id. at

____, 74 A.3d. at 276.



                                      [J-87-2014] - 12
         hearing and as it still stands, there’s not a case that defines what that
         means.
                  But I wanted to go back to reiterate I think after the witness
         guidelines, she is competent. She remembers who her teacher is; who the
         people around her are; could respond to questions about truthfulness and
         non[-]truthfulness; indicated that she understood that the oath would put her
         in a timeout. So she certainly was competent. She was here on the
         witness stand and she did testify.
                 So--and I can say as an American citizen, I’ve always had a problem
         with this section of the statute, but I think the statute’s been met.
                 And I’ve already given my reasons for allowing the testimony in my
         written opinion. So I’m going to overrule the objection and allow [forensic
         interviewer] to testify.
                                                 ***

              . . . I can’t force anymore [sic] out of her, nor do I want to. But I’ve
         already found what the legislature tells me the law is. She testified.
         I have to. . . . Now, legislature tells me, because of her age and she
         testified, because cross-examination would have only opened the door to
         her saying no. But then she changed her mind and said, no, I told the truth
         to the police, I’m lying today, here is what happened.
              So the legislature tells me if she testifies and I look back and find those
         earlier statements -- which I already have-- to be reliable, then they come in.
              Now, that doesn’t preclude evidence or testimony or even secure guilt
         beyond a reasonable doubt, but it does gets [sic] us through this point.
              So I do think under the statute, as it stands and under Crawford, we met
         the confrontation burden, and its met the statutory requirements of 42
         Pa.C.S.A. 5985. So your objection is overruled. I’ll let you say your
         objection when the disk comes up, and I’ll overrule it at that time just so you
         have that. Because there may be some other testimony in that regard
         other than just the video.

Id. at 79-80, 82, 83-84 (Emphasis added).

         The juvenile court ultimately adjudicated N.C. delinquent of one count of

aggravated indecent assault, a felony of the second degree,13 and ordered N.C. to be

placed on probation for one year which was to run consecutively to a probation violation

disposition that had been imposed in a separate matter, undergo DNA testing, and pay

costs.

13   18 Pa.C.S. § 3125(a)(7).



                                        [J-87-2014] - 13
       N.C. filed a timely appeal from the dispositional order wherein he argued, inter alia,

that his right to be confronted with the witness against him conferred by the Confrontation

Clauses of the Sixth Amendment to the United States Constitution and Article 1, Section 9

of the Commonwealth of Pennsylvania’s Constitution had been violated when the juvenile

court admitted into evidence the statements A.D. had made to the forensic interviewer

because A.D. was unavailable for cross-examination at his adjudicatory hearing. In its

one-page opinion filed pursuant to Pa.R.A.P. 1925(a), the juvenile court found that A.D.’s

reticence during direct examination and defense counsel’s failure to pose any questions

regarding her statements and actions at the forensic interview on cross-examination did

not render her unavailable for legal or constitutional purposes. In doing so, the juvenile

court reasoned that although A.D. had been “less than forthcoming” when questioned

about N.C. and whether he had hurt or touched her, citing to her responses during the

competency portion of the hearing, it determined she was competent to testify and able to

express herself regarding other subjects and, thus, was available to testify at the

adjudicatory hearing for Sixth Amendment , Article I, Section 9, and TYHA purposes.

Juvenile Court Opinion, filed 10/17/12, at 1 citing N.T. Hearing, 5/10/12 at 8-25. The

juvenile court further surmised defense counsel could have cross-examined A.D. in

regard to her statements and actions both in the courtroom and during the forensic

interview but apparently concluded that it would have been futile to do. Id. at 1 citing N.T.

Hearing, 5/10/12, at 46.

       In a published opinion, the Superior Court vacated the dispositional order and

remanded for a new adjudicatory hearing on the grounds that the juvenile court’s

admission of A.D.’s recorded statements into evidence during the adjudicatory hearing




                                      [J-87-2014] - 14
violated N.C.’s right of confrontation as provided by the Sixth Amendment to the United

States Constitution because A.D. had not been available for cross-examination and the

statements were testimonial in nature. In re N.C., ___ Pa. Super. ____, 74 A.3d 271

(2013) (reargument denied October 1, 2013). The Court summarized the TYHA and

noted that the United States Supreme Court rejected the “indicia of reliability” standard

like that set forth in the TYHA as violating the Sixth Amendment to the United States

Constitution as it pertains to testimonial hearsay.      Id. at ____, 74 A.3d at 274.     It

reiterated that in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980), the High Court had

held that an unavailable witness’s statement against a criminal defendant was admissible

provided that the statement was shrouded in an “adequate indicia of reliability,” which

existed when the testimony at issue fell within a “firmly rooted hearsay exception,” or

contained “particularized guarantees of trustworthiness.” It further stressed that the High

Court’s subsequent decision several decades later in Crawford v. Washington, 541 U.S.

36, 124 S.Ct. 1354 (2004) overruled Roberts in part when it rejected the “indicia of

reliability” standard where a witness is deemed unavailable. Instead, it summarized the

holding of the Crawford Court as requiring a determination of whether statements are

testimonial or non-testimonial in nature before out-of-court-statements by an unavailable

witness may be admissible at trial. In re. N.C., at ____, 74 A.3d at 275, citing Roberts, at

66, 100 S.Ct. at 2531; Crawford, at 68, 124 S.Ct. at 1354. The Superior Court concluded

that under Crawford, where the admission of out-of-court testimonial evidence is at issue,

the Confrontation Clause demands that a witness be unavailable and that a defendant

has had a prior opportunity for cross-examination of that witness. In re N.C., at ____, 74

A.3d at 275 citing Crawford, at 68, 124 S.Ct. at 1354.




                                     [J-87-2014] - 15
       The Superior Court next reviewed the juvenile court’s determination that A.D. had

been available for cross-examination at the adjudicatory hearing and that the recorded

forensic interview, therefore, was properly admitted into evidence. While the Superior

Court acknowledged defense counsel had been able to elicit limited verbal and

non-verbal responses from A.D. during the competency portion of the hearing, it stressed

that during direct examination A.D. provided no testimony concerning the November 5,

2011, incident. Specifically, the Court highlighted that A.D. shook her head when the

prosecutor asked whether she liked N.C. and whether she had ever been in a house or

played games with him, she nonverbally identified N.C. by pointing at him, and she either

shook her head in denial or provided no response at all when the prosecutor inquired

several times whether N.C. ever had touched her before ultimately curling herself into a

fetal position. As such, the Superior Court concluded the juvenile court improperly found

A.D. to have been “available” for Sixth Amendment purposes.

       The Superior Court first found A.D.’s out-of-court statements to the forensic

interviewer were testimonial in nature because they had been procured at an interview

arranged by police for the purpose of eliciting statement to be used to prosecute N.C.14

In support of this finding, it noted the forensic interviewer testified all agencies, including

law enforcement, were able to watch A.D.’s interview at Western Pennsylvania Cares on

a television set located in a separate conference room and that the forensic interviewer

acknowledged she momentarily left the interview to confer with the investigative team,

14 This Court has found that a statement is testimonial when it is uttered during an
interrogation the primary purpose of which was to establish or prove past events relevant
to a later criminal prosecution. Commonwealth v. Allshouse, 614 Pa. 229, 250, 36 A.3d
163, 175 (2012). The parties do not challenge this finding, and upon our review of the
record, we find it was a proper one.



                                      [J-87-2014] - 16
that she obtained assistance from the police department and Children and Youth

Services while conducting the interview, and that she provided the district attorney’s

office and the Chief of Police with a DVD recording of the interview. In re N.C., at ____,

74 A.3d at 278 citing N.T. Hearing, 5/10/12, at 105-107, 135, 137, 151. In light of the fact

that defense counsel had not had an opportunity to cross-examine A.D. during that

interview, the Superior Court concluded that the evidence of record did not support the

juvenile court’s finding A.D. had been available for cross-examination at the adjudicatory

hearing and its admission of her out-of court, recorded statement violated N.C.’s right of

confrontation as provided by the Sixth Amendment to the United States Constitution. Id.

citing Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-2274;

Commonwealth v. Allshouse, 614 Pa. 229, 250, 36 A.3d 163, 175-76.

       The Commonwealth filed a petition for allowance of appeal, and this Court

granted its petition on March 7, 2014, to decide the following issue:

            Whether an alleged delinquent’s Sixth Amendment Confrontation
       Clause rights were violated by the admission of a video-taped forensic
       interview when defense counsel did not attempt to cross-examine the victim
       at the contested hearing. 15

15 Although the Commonwealth has not premised its argument upon Article I, Section 9
of the Pennsylvania Constitution, that provision was amended in 2003 to provide, in
relevant part: “In all criminal prosecutions the accused hath a right to be confronted with
the witnesses against him. . . .” to make it identical to the Confrontation Clause of the
Sixth Amendment to the United States Constitution. Accordingly, our Confrontation
Clause analysis in the present case would be the same under both the United States
Constitution and the Pennsylvania Constitution. See Commonwealth v. Williams, ___ Pa.
____, ____, n. 2, 84 A.3d 680, 682 n. 2. (2014). Notwithstanding, we express no opinion
as to Article I, Section 9 as that constitutional provision is not at issue herein.




(continuedJ)

                                     [J-87-2014] - 17
In re N.C., 86 A.3d 863 (2014) (order).

           An appellate court’s standard of review of a trial court’s evidentiary rulings which

include rulings on the admission of hearsay is abuse of discretion. Commonwealth v.

Walter, ___ Pa. ____,          ____, 93 A.3d 442, 449 (2014) citing Commonwealth v.

Delbridge, 578 Pa. 641, 653 n. 8, 855 A.2d 27, 34 n. 8 (2003). However, whether a

defendant has been denied his right to confront a witness under the Confrontation Clause

of the Sixth Amendment to the United States Constitution, made applicable to the States

via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067

(1965), is a question of law, for which our standard of review is de novo and our scope of

review is plenary. Commonwealth v. Yohe, ___ Pa. ____, ____, 79 A.3d 520, 530-531

(2013) citing Commonwealth v. Cannon, 610 Pa. 494, 22 A.3d 210 (2011).

           The Commonwealth observes that the Sixth Amendment right to confrontation, as

expounded in Crawford, allows for the admission of testimonial hearsay statements at

trial only when the witness is unavailable and there had been a prior opportunity for

cross-examination of that witness or where the witness does testify.                       The

Commonwealth stresses that when the juvenile court asked defense counsel if he wished

to ask A.D. any questions at the adjudicatory hearing, counsel declined the opportunity to

do so and contends that in light of defense counsel’s perhaps strategic decision not to

cross-examine A.D., N.C. cannot claim successfully that A.D. had been unavailable to

testify.     The Commonwealth posits that defense counsel had been able to elicit

responses from A.D. during the competency stage of the hearing and may have been

(Jcontinued)




                                         [J-87-2014] - 18
able to garner the same result had he made a sincere attempt to conduct

cross-examination. Brief of Appellant at 14-15.

       The Commonwealth further contends that N.C.’s claims evince a misapprehension

of the right to confrontation guaranteed by the Sixth Amendment in that the dispositive

concern thereunder is not the manner in which a witness performs during direct

examination but rather whether the defendant was given the opportunity to conduct an

effective cross-examination of that witness. In this regard, the Commonwealth suggests

the High Court’s decisions in Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292 (1985),

and United States v. Owens, 484 U.S. 554, 108 S.Ct. 838 (1988), while not directly on

point factually, stand for the proposition that a witness’s evasiveness, refusal to

cooperate, or lack of memory of certain events does not preclude a finding that a

defendant’s right to cross-examine that witness under the Confrontation Clause has been

satisfied. Brief of Appellant at 16-17.16

       The Commonwealth also cites nonbinding decisions including a published opinion

from our Superior Court and caselaw from various other jurisdictions which it espouses

16  In Delaware v Fensterer, our Supreme Court held that the defendant’s Sixth
Amendment right to confrontation had not been violated where the prosecution’s expert
witness testimony was admitted despite the fact the expert witness had been unable to
recall the basis for his opinion at trial but he had been cross-examined regarding his
inability to recall the basis for his opinion. The Supreme Court specifically noted that
since no out-of-court statement which had not been subjected to cross-examination and
the other safeguards of trial testimony had been admitted as substantive evidence, “the
adequacy of a later opportunity to cross-examine, as a substitute for cross-examination at
the time the declaration was made, is not in question. . . .” Id. at 21, 106 S.Ct. at 295.
Moreover, in United States v. Owens, the High Court held neither the Confrontation
Clause of the Sixth Amendment nor Federal Rule of Evidence 802 had been violated
where a witness’s prior, out-of-court identification of the defendant as his assailant was
admitted though that witness had been unable due to memory loss to explain the basis for
his identification on cross-examination.




                                     [J-87-2014] - 19
lend support to its position. In Commonwealth v. Mollett, ___ Pa. Super. ____, 5 A.3d

291 (2010), the Superior Court considered whether a defendant who had shot and killed a

police officer had been denied a meaningful opportunity to cross-examine a witness at

trial where the witness, who had made a statement to police prior to trial, invoked his Fifth

Amendment right against self-incrimination or stated he could not recall certain events.

Id. at ____, 5 A.3d at 307-308. Noting that the witness’s statement to police had been

testimonial, the Superior Court stated that for it to have been admissible without violating

the Confrontation Clause, the witness must have been unavailable to testify at trial and

the defendant must have had an opportunity to cross-examine him.                Finding the

witness’s concern with incriminating himself had not been valid and quoting Owens,

supra, 484 U.S. at 559-560, 108 S.Ct. at 98, for the proposition that witnesses who claim

they cannot remember events are not considered unavailable for cross-examination, the

Superior Court found the witness had been available to testify and did, in fact, respond to

questions at trial. Id. at____, 5 A.3d at 308.

       The Commonwealth also posits the New Jersey Supreme Court’s case of State v.

Nyhammer, 197 N.J. 383, 963 A.2d 316 (2009), cert. denied, ___ U.S. ____, 130 S.Ct. 65

(2009) is “strikingly similar” to the within matter. Brief of Appellant at 18. Therein, the

court held a defendant could not assert he had been denied his right to confront a witness

unless he first attempted to pose questions on cross-examination concerning the core

accusations of the case where the eleven-year-old witness answered preliminary

questions with “some ease,” but the prosecutor obtained testimony concerning her

forensic interview with “great difficulty.” While defense counsel cross-examined the

witness, she posed what the court termed a number of “safe questions,” or “questions




                                      [J-87-2014] - 20
intended to elicit answers that would reveal only mundane information, rather than

information that might damage or, even worse, implicate her client.” Id. at 395, 963 A.2d

at 323. The New Jersey Supreme Court refused to presume the child witness would

have remained silent or unresponsive to questions defense counsel had never asked,

and the excerpts from the trial testimony it reiterates in its opinion evince the child was

able to provide several-word verbal responses to various questions on both direct and

cross-examination. Stressing that defense counsel questioned the child witness on a

variety of subjects but failed to introduce any questions about the accusations the witness

had made at age nine in her video-taped forensic interview, the New Jersey Supreme

Court found the trial court properly had admitted those prior statements at trial. Id. at

413-14, 963 A.2d at 413-415.17



17  The Commonwealth additionally discusses cases from other jurisdictions which it
posits iterate the same principles: See Brock v. State, 270 Ga. Ct. App. 250, 605 S.E.2d
907 (2004) (ten-year-old victim deemed available for cross-examination where the trial
court observed she was not going to testify due to her uncontrollable crying, but advised
defense counsel that he would be provided an opportunity to conduct cross-examination
the next morning and defense counsel immediately stated no questions would be
forthcoming); Conn v. State; 300 Ga. Ct. App. 193, 685 S.E.2d 745 (2009) (child available
for cross-examination for purposes of the Confrontation Clause though she provided
limited verbal responses and primarily nonverbal responses to specific questions about
molestation on direct examination when prosecution ended its examination, indicated
defense counsel may have some questions, child nodded her head affirmatively, but
defense counsel chose not to cross-examine her); In re Brandon P., ___ Ill. App. Ct.____,
992 N.E.2d 651 (2013) (delivering the judgment of the court) (child available for
cross-examination where she was present and testified primarily with nods and shakes of
the head on direct examination but defense counsel indicated he had no questions
regarding the incident in question); State v. Williams, ___ Mo.Ct. App. ____, 400 S.W.3d
904 (2013) (child witness available for cross-examination despite demonstrating
emotional difficulty and refusing at one point to take the witness stand during trial
because she was present and testified about some of the allegations brought against the
(continuedJ)

                                     [J-87-2014] - 21
       In reliance upon the aforementioned authority, the Commonwealth urges that

A.D.’s behavior and responses to queries on direct examination are not dispositive and

suggests that if defense counsel had truly desired to question A.D. about the allegations

she made in her forensic interview, he could have requested another recess to allow A.D.

to watch the recorded interview, which given a young child’s fascination with viewing

herself on video “would have been highly likely to capture A.D.’s attention, overcome her

reticence and to evoke responses from her regarding the key allegations of the case.”

Brief of Appellant at 27. Thus, so says the Commonwealth, because defense counsel

had an opportunity to cross-examine A.D. but forwent it, he cannot not now successfully

claim his right to confrontation had been violated.

       To the contrary, N.C. argues the High Court’s rulings in Crawford and Owens

require meaningful participation in the courtroom proceeding before a witness may be

deemed available for cross-examination and that the Commonwealth’s arguments stand

for the proposition that the mere presence of a witness in the courtroom will satisfy a

defendant’s constitutional right to confront that witness. Specifically, N.C. stresses the

(Jcontinued)
defendant, returned to the witness stand and defense counsel was offered the occasion
to cross-examine her regarding her in-court testimony and recorded interview, though he
chose not to do so); State v. Cameron M., 307 Conn. 504, 55 A.3d 272 (2012) cert.
denied, 133 S.Ct. 2744, 186 L.Ed. 2d 194 (2013) (six-year-old child witness available for
cross-examination though defense counsel did not question her where she testified on
direct examination that she remembered the forensic interview, but not its specific
content, and also indicated she lacked any memory of inappropriate contact her father
might have had with her when she was three-years-old). The Commonwealth also
includes a string cite of additional Illinois cases it maintains are consistent with In re
Brandon P., supra though it distinguishes three others and references two unpublished
decisions from Michigan and Delaware, respectively, to bolster its argument. Brief of
Appellant at 20-24.




                                     [J-87-2014] - 22
Owens Court ruled even prior to the Crawford decision that effective cross-examination

guaranteed under the Confrontation Clause requires a witness who appears and takes

the stand at trial and willingly responds to questions. Brief of Appellee at 10. N.C.

posits that it is difficult to reconcile the Commonwealth’s position A.D. had been available

for cross-examination at the adjudicatory hearing with the prosecutor’s abandonment of

his effort to conduct direct examination and the juvenile court’s own observation that A.D.

was not going to testify. Brief of Appellee at 13. N.C. stresses that, as the Superior

Court observed, A.D. repeatedly refused to discuss the November 5, 2011, incident on

direct examination despite the juvenile court’s providing her with two recesses. N.C.

also remarks that following the second recess, A.D. became increasingly reticent and

exhibited advancing signs of distress with each question on direct examination which

culminated in her curling herself into a fetal position. N.C. avers A.D’s behavior at this

juncture belies the Commonwealth’s suggestion that another break at the request of N.C.

could have led A.D. to answer questions readily on cross-examination. Brief of Appellee

at 14-15. N.C. notes that this Court has distinguished the waiver of a right from its

forfeiture in Commonwealth v. Lucarelli, 601 Pa. 185, 971 A.2d 1173 (2009) and

maintains that defense counsel’s conduct cannot be construed as either waiving,

intentionally or impliedly, or forfeiting N.C.’s right to cross-examine A.D., as counsel’s

attempt to do so would have been futile given his witnessing of the prosecutor’s and the

juvenile court’s failed attempts to encourage A.D. to be forthcoming in her direct

testimony. Brief of Appellee at 15-16.

       N.C. further avers the caselaw upon which the Commonwealth relies is factually

distinguishable from the case at bar and does not represent the accepted view in federal




                                     [J-87-2014] - 23
confrontation clause jurisprudence.    Specifically, N.C. explains that the witness in

Mollett, supra, was present and willingly answered questions under oath, though his

responses had been unexpected.        Brief of Appellee at 17.   N.C. further asserts in

Nyhammer, supra, the issue before the New Jersey Supreme Court had not been

whether the an out- of-court statement had been admitted properly under the New Jersey

Tender Years Hearsay Act, but rather whether the defendant had had an opportunity to

cross-examine the young witness on the recorded statement.            N.C. stresses the

Nyhammer court’s analysis seems to infer that had defense counsel objected to the

admission of the recorded statement as violating Crawford, no core accusations would

have been in the record upon which defense counsel could have cross-examined the

young witness. Brief of Appellee at 18-19. N.C. also emphasizes that the “availability”

determination the Illinois intermediate court had made in In re Brandon P., supra, was

later rejected by its high court in In re Brandon, 2014 IL 116653, 10 N.E. 3d 910 (2014).

      A review of the latter decision reveals the prosecutor asked approximately

eighteen questions on direct examination to which the child responded primarily with

head nods and single-word verbal responses.            Without requesting a recess, the

prosecutor abruptly stated no further questions would be forthcoming, and defense

counsel declined to conduct cross-examination. At the close of the state’s case in chief,

defense counsel argued the child witness was unavailable to testify at trial, and,

therefore, a detective could not testify as to statements she had made to him because

those statements were testimonial under Crawford. As the defendant had had no prior

opportunity to cross-examine the witness, defense counsel submitted that the admission

of the detective’s testimony would violate defendant’s right to confrontation under the




                                    [J-87-2014] - 24
Sixth Amendment. While the trial court did not agree that the child was unavailable as a

witness, it held her statements to the detective had not been testimonial and were

admissible under Illinois’s statutory hearsay exception for sexual abuse victims under the

age of thirteen. 725 Ill. Comp.Stat. 5/115-10.

        Upon review, the Illinois Supreme Court explained that the trial court, the

assistant state’s attorney, and respondent’s counsel all agreed at trial that the child

witness had been unavailable, but the appellate court raised the issue of her availability

sua sponte and rejected that concession. In finding the intermediate court had erred, the

Illinois Supreme Court determined the record before it revealed the child had been

unavailable to testify at trial “based upon both her youth and fear[,]” and remarked that

“M.J. could barely answer the trial court’s preliminary questions, and then completely

froze when the State attempted to begin its direct examination of her.” In re Brandon P.

at ____, 10 N.E.3d at 920.

       N.C. concludes the Commonwealth’s suggestion that defense counsel could have

done what it could not-- coax A.D. into meaningful participation at the adjudicatory

hearing-- by showing her the forensic interview during a recess is unfounded,

unsupported by any caselaw to which it cites, and would have required defense counsel

to have first introduced and utilized the very testimonial out-of-court statements which it

has always maintained were inadmissible in the proceeding. Brief of Appellee at 15.

N.C. reasons that defense counsel’s foregoing of an attempt to cross-examine A.D. under

the circumstances herein constituted an acknowledgement of the fact that an additional

effort to elicit responses from her would have “amounted to an exercise in absurdity” and

may have subjected the child to further trauma. Brief of Appellee at 16.




                                     [J-87-2014] - 25
       The Pennsylvania Association of Criminal Defense Lawyers (“PACDL”) filed an

amicus curiae brief on behalf of A.D. wherein it echoes N.C.’s assertion that the

decisional caselaw upon which the Commonwealth relies in its brief either has been

reversed or ignores telling factual differences. PACDL distinguishes the witnesses in

those cases, who were admittedly reserved and taciturn on direct examination but

answered at least some questions on cross-examination, from A.D. who “froze

completely--even physically” during direct examination prompting both the juvenile court

and the prosecutor to state explicitly on the record that further questioning by either side

would render no response from A.D. Amicus Brief at 5-6. PACDL emphasizes that, as

a policy matter, “[t]he Commonwealth’s proposed rule would encourage, and indeed

require, defense counsel to engage in questioning that, while evidently futile, would

nevertheless threaten to exacerbate the possible trauma to the child witness. The result

would be the worst of both worlds-- questioning that may do actual harm to the witness

while providing no benefit to the defense and no assistance to the factfinder.” Amicus

Brief at 11.   PACDL urges that were this Court to affirm the Superior Court, we would

not necessarily negatively affect future prosecutions that involve child victims of sexual

assaults because of the continuing presence of various safeguards in every courtroom

designed to ensure the comfort and well-being of child witnesses. Amicus Brief at 4.

       It is undisputed that A.D.’s video-taped, forensic interview conducted at Western

Pennsylvania Cares was testimonial under Crawford and its progeny; thus, the only issue

before this Court is whether the Superior Court erred in determining its admission into

evidence at trial violated N.C.’s rights under the Confrontation Clause of the Sixth




                                     [J-87-2014] - 26
Amendment to the United States Constitution.18 The Confrontation Clause guarantees

that “[i]n all criminal prosecutions, the accused shall enjoy the right J to be confronted

with the witnesses against him.” U.S. CONST., amend. VI. The High Court in Crawford,

supra, rejected the indicia of reliability standard which it had applied previously in Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980) as violative of the Sixth Amendment and

fundamentally altered Confrontation Clause jurisprudence with regard to testimonial

hearsay when it held that the Confrontation Clause prohibits the admission of testimonial

hearsay against a criminal defendant, regardless of whether the statements are deemed

reliable by the trial court, unless the declarant is unavailable to testify and the defendant

had a previous opportunity to cross-examine the witness. Crawford, 541 U.S. at 68, 124

S.Ct. at 1374. See also Commonwealth v. Yohe, 621 Pa. 527, 544, 79 A.3d 520, 530-31

(2013); Commonwealth v. Allshouse 614 Pa. 229, 242, 36 A.3d 163, 171 (2012). In

keeping with its framing of the necessary inquiry as whether the defendant had an

opportunity to cross-examine the witness, rather than whether the witness was, in fact,

cross-examined, the Crawford Court espoused that “when the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the

use of his prior testimonial statements.” Crawford, 541 U.S. at 59, 124 S.C. at 1369

(citation omitted).

       While the right to confrontation is a fundamental one, this Court has explained it is

not absolute. See Commonwealth v. Wholaver, 605 Pa. 325, 989 A.2d 883 (2010) cert.

18 An accused’s right to confront and cross-examine witnesses against him applies to
both in-court testimony and to out-of-court statements introduced at trial, regardless of
the admissibility of those statements under the law of evidence. Crawford, 541 U.S. 36,
124 S.Ct. 1354 (2004). We do not speak to whether A.D.’s statements in the forensic
interview satisfied the requirements of the TYHA, as this issue is not before us.



                                      [J-87-2014] - 27
denied 131 S.Ct. 332, 178 L.Ed.2d 216 (2010) (discussing generally the “forfeiture by

wrongdoing” exception to the hearsay rule and the Confrontation Clause and upholding a

trial court’s admission of two murder victims’ preliminary hearing testimony at defendant’s

trial). In addition, when determining whether a defendant has a right to present expert

testimony to rebut the Commonwealth’s introduction of evidence in support of its motion

pursuant to 42 Pa.C.S.A. § 5985 to allow a child witness to testify in a room outside of the

courtroom, this Court recently explained:

       the right to confrontation is basically a trial right, and includes both the
       opportunity for cross-examination of the witnesses and the occasion for the
       jury to consider the demeanor of the witnesses. Barber v. Page, 390 U.S.
       719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). “The central concern of the
       Confrontation Clause is to ensure the reliability of the evidence against a
       criminal defendant by subjecting it to rigorous testing in the context of an
       adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S.
       836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

Commonwealth v. Williams, ___ Pa. ____, 84 A.3d 680, 684 (2014).

      With this in mind, we turn to the salient determination of whether A.D. was available

for cross-examination at N.C.’s adjudicatory hearing. A.D. was four years of age when

she took the witness stand, and the hearing commenced with questions posed in an effort

to discern her competency to testify regarding the charges brought against N.C. During

both direct and cross-examination at that time, A.D. answered questions concerning

various innocuous topics such as her birthday, school, family, and her ability to

differentiate the truth from a lie with nods and shakes of her head, along with a few verbal

responses. N.T. Hearing, 5/10/12 at 8-24. Ultimately, the juvenile court found A.D. was

competent to testify, and the prosecutor commenced direct examination on the merits.

      Notwithstanding, as the aforementioned excerpts from the adjudicatory hearing

illustrate and a review of the record in its totality evinces, A.D. was unable to provide



                                     [J-87-2014] - 28
direct examination testimony regarding any contact N.C. might have had with her. While

the Commonwealth maintains that A.D. “made the statement a number of times that N.C.

had not touched her,” and “alternatively said that she didn’t like N.C. and that she did[,]”

A.D. never verbalized a response with regard to the behavior leading to the charges N.C.

faced.   Brief of Appellant at 17-18 (bold emphasis added, italics in original). To the

contrary, despite the prosecutor’s persistent encouraging of A.D. to speak so the juvenile

court could hear her, she responded to his queries with head movements and only a few,

single-word verbal responses and became totally unresponsive to his repeated efforts to

elicit information regarding inappropriate contact N.C. may have had with her on

November 5, 2011. Her ultimate recoiling into a fetal position prompted the juvenile

court to acknowledge on the record that A.D. was not going to participate any further and

to suggest she should be removed from the witness stand.               Yet, despite A.D.’s

courtroom behavior at this juncture and the fact that two recesses had already been taken

and several changes in caregivers had been made in an effort to make A.D. more

comfortable, all to no avail, the Commonwealth suggests that had defense counsel

requested another break A.D.’s cooperation would have been eminent. We do not

agree.

      Moreover, it is difficult to harmonize the juvenile court’s ultimate determination at

the adjudicatory hearing that A.D. was available for cross-examination under the Sixth

Amendment with its unequivocal statement on the record earlier that “she’s not going to

testify” and its observation she did not testify on the substantive issues of the case. N.T.

Hearing, 5/10/12, at 46, 79. Its contemporaneous courtroom observations also belie the

juvenile court’s characterization of A.D.’s behavior as merely “less than forthcoming,” in




                                     [J-87-2014] - 29
its opinion pursuant to Pa.R.A.P. 1925(a). However, a review of its explanation for its

reasoning on the record suggests the juvenile court conflated the federal constitutional

challenge that was before it--whether N.C.'s right to confrontation under the Confrontation

Clause of the Sixth Amendment had been satisfied-- with the separate issues of A.D.’s

competency to testify at the adjudicatory hearing under Pa.R.E. 601 and of whether the

forensic interview was admissible under the TYHA.

      We cannot find the confrontation element of Crawford was met herein, for Crawford

and its progeny require an opportunity for effective cross-examination which N.C. simply

did not have. Contrary to the juvenile court’s analysis, defense counsel’s indication he

had no questions on cross-examination cannot be deemed to have been a strategic

choice, for any attempt on his part to continue to question this young witness whose fear

and fragility were evident during direct examination and whose last expression before

melding herself into a fetal position on her grandmother’s lap was a desire to go home

would have been, at best, pro forma. In addition, A.D. did not act merely with trepidation

at the hearing; she provided virtually no verbal responses on direct examination, despite

two recesses and as many changes in caregivers to comfort her while she was on the

witness stand which effectively left defense counsel with no opportunity to cross-examine

her on the charges brought against N.C.

           A.D.’s inability to speak and physical recoiling simply is not of the ilk of the

witnesses in the caselaw to which the Commonwealth cites who either could not

remember certain details or refused to cooperate with counsel. As such, the Superior

Court correctly determined that the juvenile court improperly deemed A.D. to have been

available for cross-examination and that N.C.’s right to confront her guaranteed under the




                                     [J-87-2014] - 30
Confrontation Clause of the Sixth Amendment to the United States Constitution had been

violated when it admitted her recorded statements, which were testimonial in nature, into

evidence during N.C.’s adjudicatory hearing without N.C.’s having had a prior opportunity

to cross-examine her.

      The decision of the Superior Court is Affirmed.

      Former Justice McCaffery did not participate in the decision of this case.

      Mr. Chief Justice Castille and Messrs. Justice Saylor, Eakin and Baer and Madame

      Justice Todd join the opinion.




                                       [J-87-2014] - 31
