J-S64039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: B.C.H., A         :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
                                          :
                                          :
    APPEAL OF: B.C.H.                     :
                                          :
                                          :
                                          :
                                          :   No. 211 MDA 2017

               Appeal from the Order Entered December 28, 2016
      In the Court of Common Pleas of Lancaster County Juvenile Division at
                         No(s): CP-36-JV-0000525-2016


BEFORE:        PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                   FILED NOVEMBER 20, 2017

        Appellant, B.C.H., appeals from a dispositional order adjudicating him

delinquent for committing involuntary deviate sexual intercourse (“IDSI”),1

aggravated     indecent assault,2   indecent assault3   and simple    assault.4

Appellant argues that the trial court erred in refusing to permit him to cross-

examine one of the victims, B.F., about her romantic interest in another boy

at the time of the incident. We affirm.



* Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 3123(a)(1).

2   18 Pa.C.S. § 3125(a)(1).

3   18 Pa.C.S. § 3126(a)(2).

4   18 Pa.C.S. § 2701(a)(1).
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      The juvenile court accurately recounted the evidence against B.C.H. as

follows:

              The Commonwealth called victim M.B., victim B.F., and
           Officer Nelson Renno as witnesses. While both victims
           recounted consistent versions of what happened on the
           day of the incident, their testimony was not identical. The
           victims’ testimony was further corroborated by Officer
           Renno’s testimony.

               Victim M.B. testified that on June 30, 2016, she was
           hanging out with [Appellant], [A.J.], and victim B.F., [A.J.]
           left to go to a swim meet, and the remaining three
           youth[s] went to [Appellant]’s house to continue hanging
           out. They were all sitting on the futon in [Appellant]’s
           house when [Appellant] attacked them. It started when
           [Appellant] put a pillow over victim B.F.’s face, and victim
           M.B. pulled him off of her. [Appellant] would grab one
           victim by the neck, and the other victim would try to pull
           [Appellant] off of the victim being attacked. During this
           back and forth, victim M.B. testified that [Appellant] pulled
           her shorts to the side and tried to sodomize her with a
           black air pump, put his finger in her anus, and groped her
           body. At one point, [Appellant] left the room and the
           victims tried to leave, but could not get the door open.
           Victim M.B. also testified that she and victim B.F. told
           [Appellant] multiple times to stop and get off them, but he
           would not. [Appellant] finally stopped when victim M.B.
           pointed out the bruises on victim B.F.’s neck. At
           [Appellant]’s instruction, the victims Google searched how
           to get rid of bruises and learned that cold spoons in the
           freezer and toothbrushes for circulation can help, and then
           they proceeded to use these methods to try and lessen the
           bruising. Victim B.F.’s grandmother picked up both victims
           at [Appellant]’s house. Victim [M.B.] testified that victim
           B.F. told her grandmother what happened that night, and
           victim [M.B.] told her mother the next day, and then their
           parents called the police. Victim M.B. further testified that
           she was with victim B.F. when they were interviewed by
           the police and wrote their written statements, but that she
           and victim B.F. did not tell each other what to write in the
           statement. The Commonwealth presented photographs of
           bruises on both victims’ necks and victim B.F.’s thighs, a


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          photograph of the black air pump, and a photograph of
          [Appellant]’s living room. The [c]ourt found victim M.B.’s
          testimony credible.

             Victim B.F.’s testimony regarding the incident on June
          30, 2016 included many of the same details as victim
          M.B.’s testimony. Victim B.F. testified that the assault
          started when [Appellant] pushed her down into the futon
          and put a pillow on her face. The next time he pushed her
          down it was by her neck, and this is when the back and
          forth of [Appellant] grabbing a victim’s neck and holding
          her down while the other victim tried to pull [Appellant] off
          began.      During the attack, victim B.F. testified that
          [Appellant] pulled up her shirt and was biting her stomach,
          and was touching her thighs. She also saw [Appellant] put
          the black air pump inside victim M.B.[’s anus]. Victim B.F.
          also testified that victim M.B. could not get the door open
          for them to leave, and that they used cold spoons and a
          toothbrush to lessen the bruising. When her grandmother
          arrived, they still could not open the door, and [Appellant]
          opened it for them.        Victim B.F. testified on cross-
          examination [that] her grandmother noticed the bruising
          on her neck, and she said it was a bug bite because she
          did not want to tell her grandmother what happened yet.
          Victim B.F. further testified that she was with victim M.B.
          when the police interviewed them, they wrote their written
          statements at the same time, but did not discuss what to
          write with each other. The [c]ourt found victim B.F.’s
          testimony credible.

              Officer Nelson Renno, a state police trooper, testified
          that during the search of [Appellant]’s home, they found a
          black air pump, a pack of open toothbrushes on top of a
          laundry appliance, and in what appeared to be
          [Appellant]’s bedroom, a backpack that contained multiple
          silver spoons. The Commonwealth presented photographs
          of the toothbrushes and spoons in the backpack. The
          [c]ourt found Officer Renno’s testimony credible.

Juvenile Ct. Op., 3/3/17, at 5-7. The court further summarized the evidence

thusly:




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         [Appellant] forcibly inserted the pointed end of an air
         pump and his finger into the anus of victim M.B., forcibly
         grabbed the inner thighs and buttocks of victim M.B.,
         forced his fingers into victim M.B.’s mouth, pushed victim
         M.B. to the ground and grabbed her throat, making it hard
         for her to breath[e] and resulting in bruising. [Appellant]
         also . . . forcibly put his hands under the shirt and bra of
         victim B.F., grabbed victim B.F.’s breasts and forcibly bit
         victim B.F.’s neck and stomach, kissed her lips[] and
         grabbed her inner thighs and buttocks.

Id. at 2 (citations omitted).     Appellant testified and claimed that B.F.

consented to his conduct. N.T., 12/8/16, at 66-69.

      The juvenile court adjudicated Appellant delinquent, found him in need

of rehabilitation and treatment, and committed him to a secure juvenile

facility. Appellant filed a timely notice of appeal, and both Appellant and the

juvenile court complied with Pa.R.A.P. 1925.

      Appellant raises a single issue on appeal:

         I. Did the [juvenile] court err in sustaining the
         Commonwealth’s objection and not allowing [Appellant] to
         cross-examine the victim[,] B.F.[,] on her romantic
         interest in another boy, A.J., at the time of the incident,
         where the testimony was relevant to show the victim’s bias
         and motive to fabricate?

Appellant’s Brief at 5.

      In juvenile proceedings,

         [t]he scope and limits of cross-examination are largely
         within the discretion of the trial court[,] and its actions
         pertaining thereto will not be reversed in the absence of a
         clear abuse of its discretion or error of law. Nevertheless,
         “[c]riminal defendants have a constitutional right to
         confront witnesses against them, which includes the right
         to cross-examine. Cross-examination may be employed to
         test a witness’ story, to impeach credibility, and to


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         establish the witness’ motive for testifying.” It is well
         established, therefore, “that a witness may be cross-
         examined as to any matter tending to show the interest or
         bias of that witness.” “It is particularly important that,
         where the determination of a defendant’s guilt or
         innocence is dependent upon the credibility of a
         prosecution witness, an adequate opportunity be afforded
         to demonstrate through cross-examination that the
         witness is biased.

Interest of Dixon, 654 A.2d 1179, 1181 (Pa. Super. 1995) (internal

citations and some internal quotations omitted).

      This Court has held with regard to cross-examination for the purpose

of showing bias or motive:

         Generally, evidence of interest or bias on the part of a
         witness is admissible and constitutes a proper subject for
         cross-examination. It is well-settled law that cross-
         examination directed toward revealing possible bias,
         interest or motive of a witness in testifying against the
         defendant is always relevant as discrediting the witness
         and affecting the weight of his testimony.

Commonwealth v. Gentile, 640 A.2d 1309, 1313 (Pa. Super. 1994)

(internal citations omitted).

      If the hearing judge errs in disallowing certain cross-examination, such

an error is subject to a harmless error analysis. The Pennsylvania Supreme

Court has stated that “an error can be harmless only if the appellate court is

convinced   beyond    a   reasonable   doubt   that   the   error   is   harmless.”

Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978).                To determine

whether an error is harmless, “the uncontradicted evidence of guilt must be

so overwhelming, and the prejudicial effect of the improperly admitted



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evidence so insignificant by comparison, that it is clear beyond a reasonable

doubt that the error could not have contributed to the verdict.” Id. at 168.

Thus, an error is harmless if “the appellate court determines that the error

could not have contributed to the verdict.” Commonwealth v. Rush, 605

A.2d 792, 794 (Pa. 1992).

     We agree with Appellant that the juvenile court erred in refusing to

permit him to cross-examine B.F. with regard to her romantic interest in A.J.

at the time of the incident, because it gave her a motive to fabricate her

testimony. Appellant described the incident as consensual. B.F. might have

feared that A.J. would be angry with her if he learned that the incident with

Appellant was consensual.

     Nevertheless, we conclude that this error was harmless, because the

testimony of the other victim, M.B., and Officer Renno corroborated B.F.’s

testimony and overwhelmingly established the Commonwealth’s case. The

juvenile court credited M.B.’s detailed testimony that Appellant attacked her

and B.F. Appellant does not contend that M.B. had any possible bias or

motive to fabricate, and the record shows that M.B. and B.F. did not tell

each other what to write in their accounts of the incident. Moreover, Officer

Renno searched Appellant’s house and found the air pump that Appellant

used to penetrate M.B.’s anus and the spoons and toothbrush that the

victims used to treat their injuries.     Thus, the juvenile court correctly

concluded:



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         Since the substance of victim B.F.’s testimony was
         confirmed by the testimony of other witnesses at the
         adjudicatory hearing, the result at the hearing would not
         have differed, and . . . the [juvenile] court’s refusal to
         permit cross-examination of victim B.F. to reveal possible
         bias or motive to fabricate had no impact on the outcome
         of this case.

Juvenile Ct. Op. at 9.

      Order affirmed.

      Judge Shogan joins the Memorandum.

      Judge Panella files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/20/2017




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