J-A34033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

MASTER GREENE

                          Appellant                 No. 532 MDA 2014


     Appeal from the Judgment of Sentence imposed January 31, 2014
            In the Court of Common Pleas of Lancaster County
             Criminal Division at No: CP-36-CR-0004487-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                           FILED APRIL 24, 2015

      Appellant Master Green appeals the judgment of sentence the Court of

Common Pleas of Lancaster County imposed on January 31, 2014. For the

reasons stated below, we affirm.

      The trial court summarized the factual and procedural background of

this matter as follows:

      On November 16, 2011, an arrest warrant was issued for
      Appellant as result of being charged with the offenses of rape of
      a child under 13 years of age, indecent assault of a person less
      than 13 years of age, corruption of a minor by a defendant over
      18 years of age for purpose of committing a sexual offense,
      unlawful contact with a minor relating to sexual offenses, and
      endangering the welfare of a child. The basis for these charges
      was an allegation that between April 1, 2011, and July 31, 2011,
      Appellant engaged in sexual contact with his girlfriend’s
      daughter, M.R., age four, at their residence in Strasburg,
      Lancaster County, Pennsylvania. Appellant fled the jurisdiction
      when confronted by his girlfriend with these allegations, and was
J-A34033-14


     ultimately arrested in Mesa County, Colorado, on March 8, 2012,
     and extradited back to Pennsylvania on June 19, 2012.

     The child victim, M.R., was interviewed on June 29, 2011, by
     Mary Hayle, a forensic interviewer, at the Lancaster County
     Children’s Alliance. Officer Bradley A. Klunk of the Strasburg
     Borough Police Department observed the interview from another
     room.     During this recorded interview, M.R. disclosed that
     “[U]ncle” (the name she uses for Appellant): (1) “touched her
     ‘Cookie’” (her word for vagina); (2) “pulled her pants down and
     was touching her Cookie with his hand when she was sleeping in
     her room”; (3) “touched her Cookie with his Cookie inside her
     Cookie”; and (4) put his Cookie “in deep and he peed in her
     Cookie” on more than one occasion.

     Prior to trial, the Commonwealth filed a Petition to Admit Out-of-
     Court Statements under the Tender Years Hearsay Exception, 42
     Pa.C.S.A. § 5985.1, and a Motion to Permit Testimony by
     Contemporaneous        Alternative Method      Pursuant   to   the
     Pennsylvania Uniform Child Witness Testimony by Alternative
     Methods Act, 42 Pa.C.S.A. § 5985. A combined hearing on the
     motion and petition was held at the time of trial.

     At the conclusion of the hearing on October 15, 2013, this
     [c]ourt granted the petition to admit out-of-court statements,
     having found that the statements made by the child victim to
     Ms. Hayle, to her mother, A.R., and to her cousin, Armand Miller,
     were relevant, and that the time, content and circumstances of
     the statements provided sufficient indicia of reliability for their
     admission pursuant to 42 Pa.C.S.A. § 5985.1. This [c]ourt
     further approved, on the record, the Commonwealth’s motion to
     permit testimony by alternative method.

     This case immediately proceeded to a jury trial . . . following
     the[] rulings o[f] October 15, 2013. On October 18, 2013,
     Appellant was found guilty on all charges. . . .

Trial Court Opinion, 5/7/14, at 1-3 (footnotes and citations to record

omitted).




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J-A34033-14



        This appeal followed. Both the trial court and Appellant complied with

Pa.R.A.P. 1925.1
____________________________________________


1
    In his Rule 1925(b) statement, Appellant raised the following issues:

        1. The trial court erred when finding the jury verdict was not
           against the weight of the evidence.           Specifically the
           Commonwealth did not present sufficient credible evidence
           for a finding of guilty. The Commonwealth’s sole evidence in
           support of a guilty verdict is the testimony of a minor child,
           aged four (4) when the alleged incident took place[,] and
           aged six (6) during the trial. Considering the inability of the
           child to identify in court, the frequent comment that she did
           not remember information, and the inconsistencies in her
           testimony, the verdict shocks one’s sense of justice.

        2. [Sentencing issue not raised on appeal].

        3. The trial court erred when it allowed hearsay under the tender
           years’ doctrine, specifically in [its] determination that there
           was a sufficient indicia of reliability as required by 42
           Pa.C.S.A. § 5985.1(a)(1). When determining whether an
           indicia of reliability exists the court may consider “. . .
           consistent repetition of the statement(s) . . . .” Considering
           the inconsistency of the child’s testimony, there is not
           sufficient indicia of reliability to support the tender years
           exception to hearsay.

        4. The trial court erred when it allowed testimony by
           contemporaneous      alternative    method,     specifically in
           determining that the child witness would suffer serious
           emotional distress that would substantially impair the child’s
           ability to communicate by testifying in an open forum in front
           of the finder of fact or defendant, as required by
           42 Pa.C.S.A. § 5985(a.1).      There was no evidence that
           testifying in front of the jury would cause the child any
           emotional distress or impair the child’s ability to
           communicate. Further, there was insufficient evidence to
           support a finding that the child would suffer serious emotional
           distress or impairment in her ability to communicate with
(Footnote Continued Next Page)


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      On appeal, Appellant raises the following issues:

      A.    Did the trial court encroach upon Appellant’s rights under
            the Confrontation Clause by admitting a testimonial
            recorded deposition into evidence vis a vis by determining it
            to be reliable?

      B.    Whether the trial court erred in finding M.R. would suffer
            serious emotional distress if required to testify in open court
            despite the impetus (presence of Appellant) of her alleged
            emotional distress offering to be voluntarily absent from the
            courtroom?

      C.    Did the trial court commit reversible error in refusing to
            grant Appellant a new trial despite the jury’s verdict being
            so contrary to the weight of the evidence presented to shock
            one’s sense of justice?

Appellant’s Brief at 4.

      The first two issues raised on appeal involve evidentiary rulings.

      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. 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, is a question of law, for which our
      standard of review is de novo and our scope of review is plenary.

In re N.C., 105 A.3d 1199, 1210 (Pa. 2014).
                       _______________________
(Footnote Continued)

           [appellant] present, considering the child’s pleasant mood
           and ability to testify in prior settings. Further, [Appellant]
           offered to be not present for the child’s testimony, and there
           is no evidence that the child would suffer emotional distress
           or be unable to testify under such circumstances.

Appellant’s “Statement of Matters Complained of,” 4/25/14, at 1-2.




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       Appellant did not raise the first issue (i.e., Confrontation Clause claim)

in his Rule 1925(b) statement.2           Appellant raises it for the first time on

appeal.      Accordingly, the issue is waived.            See Pa.R.A.P. 302(a);

Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super. 2013) (“Issues not

included in the Statement and/or not raised in accordance with [Rule

1925(b)(4)] are waived”) (quoting Pa.R.A.P. 1925(b)(4)).

       We also note the issue is meritless because the Confrontation Clause,

and in particular Crawford v. Washington, 541 U.S. 36 (2004), does not

lend support to Appellant’s position.3         Appellant fails to acknowledge that

M.R. testified at trial, and that Appellant had ample opportunity to cross-

examine M.R. on this matter.          For whatever reason, Appellant declined to

challenge M.R.      “If [Appellant] had an opportunity to cross-examine the

declarant about statements that the declarant made, then there is no

Confrontation Clause violation.”        Commonwealth v. Mollett, 5 A.3d 291,

308 (Pa. Super. 2010), appeal denied, 14 A.3d 826 (Pa. 2011) (citing


____________________________________________


2
  Reliability for purpose of 42 Pa.C.S.A. § 5985.1(a)(1) cannot be deemed to
include his Confrontation Clause claim as a “subsidiary issue contained
therein which was raised in the trial court[.]” Pa.R.A.P. 1925(b)(4)(v)
(emphasis added).
3
   The Commonwealth does not suggest that M.R.’s statements to the
forensic interviewer were not testimonial or that they would have been
admissible at trial without M.R.’ s testimony. Commonwealth’s Brief, at 9
n.3.




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Commonwealth v. Charlton, 902 A.2d 554, 560 (Pa. Super. 2006), appeal

denied, 911 A.2d 933 (Pa. 2006)); see also Crawford, supra.4

        In the argument section of his brief, Appellant, for the first time, also

argues the victim, while physically present on the stand, was in fact

“unavailable” for purposes of the Confrontation Clause.              Specifically,

Appellant argues the victim should have been declared unavailable because

she was not put in a position to defend or explain her prior statements.

Appellant’s Brief at 27.5 Appellant blames the Commonwealth for failing to

____________________________________________


4
    In Crawford, the U.S. Supreme Court noted:

        [W]e reiterate 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.
        It is therefore irrelevant that the reliability of some out-of-court
        statements cannot be replicated, even if the declarant testifies to
        the same matters in court. The Clause does not bar admission
        of a statement so long as the declarant is present at trial to
        defend or explain it.

Crawford, 541 U.S. at 59 n.9.
5
  Despite cases from this jurisdiction discussing this issue, see, e.g., In re
N.C., 74 A.3d 271 (Pa. Super. 2013), aff’d, 105 A.3d 1199 (Pa. 2014);
Mollett, 5 A.3d at 308-309; Commonwealth v. Kriner, 915 A.2d 653 (Pa.
Super. 2007) (citing Fidler v. Cunningham-Small, 871 A.2d 231, 237 (Pa.
Super 2005) (specifically discussing definition of unavailability for purposes
of Section 5985.1)), Appellant mostly relies on out-of-state and/or federal
court of appeals decisions.

Among others, Appellant relies on United States v. Spotted War Bonnet,
933 F.2d 1471 (8th Cir. 1991), cert. denied, 502 U.S. 1101 (1992) for the
proposition that “a child witness is not automatically deemed available for
cross-examination by virtue of walking into court and simply taking the
(Footnote Continued Next Page)


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properly question the victim on her prior statements.                 According to

Appellant, had the Commonwealth properly questioned the victim, Appellant

would have been able “to explore the circumstances in which such hearsay

statements were obtained.”           Id.    Not surprisingly, Appellant provides no

authority for his bald suggestion the Commonwealth had a duty of cross-

examining the victim on Appellant’s behalf.

      The record also belies the allegation because the victim did in fact

provide testimony pertaining to the facts of the case, which could have been

challenged by Appellant during cross-examination. Appellant says nothing,

however, about his decision not to cross-examine the victim on this matter,

despite the fact he had the opportunity to do so.

      These facts make the instant matter easily distinguishable from N.C.

In N.C., the victim/witness “was unable to provide direct examination



                       _______________________
(Footnote Continued)

witness stand.” Appellant’s Brief at 26. Appellant fails to mention, however,
that when, as in this matter,

      the contention is made that the live testimony of a given witness
      satisfies Confrontation Clause concerns as to the admissibility of
      out-of-court statements made by the same witness, the question
      is whether there is “an opportunity for effective cross-
      examination, not cross-examination that is effective in whatever
      way, and to whatever extent, the defense might wish.”

Spotted War Bonnet, 933 F.2d at 1474 (emphasis in original) (quoting
Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).




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J-A34033-14



testimony regarding any contact [defendant] might have had with [the

victim/witness].” In re N.C., 105 A.3d at 1216. Furthermore,

      Despite the prosecutor’s persistent encouraging of [victim] 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 [victim] was not going to
      participate any further and to suggest she should be removed
      from the witness stand.

Id.

      Clearly, this is not the case here. M.R.’s testimony provided adequate

direct testimony regarding contacts she had with Appellant. The trial court

summarized her testimony as follows:

      In her testimony at trial, M.R., then six years old, unequivocally
      stated that “only Uncle” ever touched her private parts. She
      specifically recalled the abuse happening in her mother’s bed,
      during the day, while she was watching television, and on more
      than one occasion. M.R. also clearly identified her [U]ncle’s
      “cookie,” or private part, as “kind of . . . like a hose,” and
      different from her private part. She found it hard to remember
      at trial whether her [U]ncle’s private part went inside her private
      part, whether anything came out of her [U]ncle’s private part
      when he touched [her] private part, and what it felt like when
      [u]ncle’s private part touched her private part.

Trial Court Opinion, 5/7/14, at 6-7 (citation to record omitted).

      On cross-examination, Appellant made no attempt to question M.R.

about the facts she just disclosed. Rather, Appellant attempted to elicit from

M.R. answers that would picture him in a positive way.         M.R., however,



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J-A34033-14


testified that Appellant did only “bad stuff” to her. N.T. Trial, 10/16/13, at

226-27.

        In light of the foregoing, to the extent the claim can be deemed

preserved for appellate review, we conclude the introduction of the

statements the victim made to Ms Hayle did not violate Appellant’s

Confrontation Clause rights.

        In his Rule 1925(b) statement, Appellant challenges the admission of

“hearsay”6 to the extent the trial court found it reliable for purposes of

Section 5985.1, the Tender Years Hearsay exception. 7             To this end,

____________________________________________


6
  In his Rule 1925(b) statement, supra, Appellant does not identify the
hearsay improperly admitted under the Tender Years Hearsay exception. He
merely identifies this material as “hearsay.” On appeal, Appellant limits his
argument only to the statements M.R. made to Ms. Hayle.
7
    Section 5985.1, in relevant part reads:

        (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:

(Footnote Continued Next Page)


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Appellant argues there were too many inconsistencies in M.R.’s testimony to

make    the   evidence       reliable.     Yet,     Appellant   did   not   identify   one

inconsistency.     Indeed, the trial court refused to scour the record for

inconsistent statements. Trial Court Opinion, 5/7/14, at 19, n.11. Similarly,

on appeal, Appellant alleges there were inconsistencies in her version of the

facts, but does not identify any of them, and most importantly does not

explain why he did not act on them on cross-examination. We, therefore,

decline to find merit in this issue.

       Next, Appellant challenges the trial court’s decision to allow M.R. to

testify by closed circuit television, despite the fact Appellant was willing to

leave the courtroom during her testimony. On appeal, Appellant focuses on
                       _______________________
(Footnote Continued)

           (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 or 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).



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the language of the statute, requiring, according to Appellant, a specific

finding by the trial court that M.R. would suffer serious emotional distress if

she were to be ordered to testify in the courtroom. Because the trial court

failed to do so, Appellant concludes, the trial court erred in ordering M.R.

testifying from a room other than the courtroom.8

        The Commonwealth specifically argued against M.R. testifying in the

courtroom, even if Appellant was not present, because Section 5985(a)9


____________________________________________


8
   Appellant, on appeal, but not in his Rule 1925(b) statement, also argues
that the trial court’s decision not to order the victim to testify in the
courtroom violates Crawford. The issue was not raised below. Accordingly,
it is waived.
9
    Section 5985, in relevant part provides:

        (a) Contemporaneous alternative method.--Subject to
        subsection (a.1), in any prosecution or adjudication involving a
        child victim or a child material witness, the court may order that
        the testimony of the child victim or child material witness be
        taken under oath or affirmation in a room other than the
        courtroom and transmitted by a contemporaneous alternative
        method. Only the attorneys for the defendant and for the
        Commonwealth, the court reporter, the judge, persons
        necessary to operate the equipment and any person whose
        presence would contribute to the welfare and well-being of the
        child victim or child material witness, including persons
        designated under section 5983 (relating to rights and services),
        may be present in the room with the child during his testimony.
        The court shall permit the defendant to observe and hear the
        testimony of the child victim or child material witness but shall
        ensure that the child cannot hear or see the defendant. The
        court shall make certain that the defendant and defense counsel
        have adequate opportunity to communicate for the purposes of
        providing an effective defense. Examination and cross-
(Footnote Continued Next Page)


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J-A34033-14


expressly allows for a contemporaneous alternative method, and because

“[w]ith everybody wearing their uniforms and people wearing guns and all

pomp and circumstance that accompanies the formality of a courtroom, if

the child is intimidated by that and can’t do anything, then I’m dead in the

water.” N.T., 10/15/13, at 81. Despite the persuasive argument made by

the Commonwealth, the trial court gave Appellant the opportunity to provide

the trial court with authority supporting an order directing M.R. to testify in

the courtroom, as opposed to another room as provided for in the statute.

Notwithstanding this opportunity, it appears Appellant did not provide any

such authority. Eventually, the trial court stated: “Given [the court’s] ruling
                       _______________________
(Footnote Continued)

      examination of the child victim or child material witness shall
      proceed in the same manner as normally permitted.

      (a.1) Determination.--Before the court orders the child victim
      or the child material witness to testify by a contemporaneous
      alternative method, the court must determine, based on
      evidence presented to it, that testifying either in an open forum
      in the presence and full view of the finder of fact or in the
      defendant’s presence will result in the child victim or child
      material witness suffering serious emotional distress that would
      substantially impair the child victim’s or child material witness's
      ability   to   reasonably    communicate.       In   making    this
      determination, the court may do all of the following:

          (1) Observe and question the child victim or child material
          witness, 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 victim
          or child material witness in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985(a), (a.1).



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on the tender years and [its] review of all proceedings and all of the

exposure that [the court] had with the juvenile and more importantly upon

review of the statute and any case law, [the court is] denying [Appellant]’s

request.”     N.T. 10/15/13, at 159.           Thus, the record belies Appellant’s

allegation that the trial court did not consider or address the negative impact

on the victim resulting from testifying in open court.

       Furthermore, Appellant does not explain how he can now challenge the

trial court’s evidentiary ruling when he did not do so at trial.         As noted

above, the trial court specifically stated it was open to reconsider its

evidentiary ruling upon Appellant providing authority for his position.

Apparently did not present any authority. Appellant cannot challenge now

what he should have challenged at trial.              Evidentiary rulings must be

challenged at the time they are made.              See Commonwealth v. Bryant,

855 A.2d 726, 740 (Pa. 2004) (citing Commonwealth v. Burkholder, 595

A.2d 59 (Pa. 1991)) (failure to raise contemporaneous objection to evidence

at trial waives claim on appeal).

       In any event, even if we were to find appellant did in fact properly

challenge the evidentiary ruling, given the explanation provided by the trial

court in denying Appellant’s request,10 Appellant fails to articulate any

____________________________________________


10
  Appellant argues there is “not a single scrap of testimony in the record,”
Appellant’s Brief at 32, that would support a finding that the victim/witness
would suffer from serious emotional distress that would substantially impair
(Footnote Continued Next Page)


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compelling argument how the trial court abused its discretion in ordering

M.R. testifying in a room other than the courtroom, given that the statute

specifically so provides.

      Finally, Appellant argues the trial erred in not granting a new trial

because the verdict was against the weight of the evidence.           Specifically,

Appellant argues the “evidence used to sustain to Appellant’s verdict was so

inherently unreliable and contradictory that the jury finding Appellant was

guilty [was] based on little more than pure conjecture.” Appellant’s Brief at

39. We disagree.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

             Appellate review of a weight claim is a review of the
             exercise of discretion, not of the underlying question
             of whether the verdict is against the weight of the
             evidence.    Because the trial judge has had the
             opportunity to hear and see the evidence presented,
             an appellate court will give the gravest consideration
             to the findings and reasons advanced by the trial
             judge when reviewing a trial court’s determination
             that the verdict is against the weight of the
                       _______________________
(Footnote Continued)

her ability to communicate should she have been ordered to testify in the
courtroom. Appellant, however, overlooks that the trial court’s decision on
whether to allow the witness to testify through alternative methods was
based, inter alia, on the trial court’s observations of, and interactions with,
the witness, and testimony given at the Tender Years hearing. See N.T.
10/15/13, at 159. This is consistent with the provisions 42 Pa.C.S.A.
§ 5985(a.1). While the trial court did not specifically state that testifying in
open court would result in the victim suffering from serious emotional
distress that would substantially impair her ability to communicate, its
reasoned denial of his request implies this much.



                                           - 14 -
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           evidence. One of the least assailable reasons for
           granting or denying a new trial is the lower court’s
           conviction that the verdict was or was not against
           the weight of the evidence and that a new trial
           should be granted in the interest of justice.

     [Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)]
     (emphasis added) [(internal citations omitted)].

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered.        In
     describing the limits of a trial court’s discretion, we have
     explained:

           The term “discretion” imports the exercise of
           judgment, wisdom and skill so as to reach a
           dispassionate conclusion within the framework of the
           law, and is not exercised for the purpose of giving
           effect to the will of the judge. Discretion must be
           exercised on the foundation of reason, as opposed to
           prejudice, personal motivations, caprice or arbitrary
           actions.   Discretion is abused where the course
           pursued represents not merely an error of judgment,
           but where the judgment is manifestly unreasonable
           or where the law is not applied or where the record
           shows that the action is a result of partiality,
           prejudice, bias or ill-will.

     [Id.] (quoting [Coker v. S.M. Flickinger Company, Inc., 625
     A.2d 1181, 1184-85 (Pa. 1993)]).

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

     Here, Appellant did not advance any argument on how the trial court

abused its discretion in not granting a motion for a new trial based upon a

weight of the evidence claim.     Appellant merely challenges the jury’s

credibility determinations, which we cannot reweigh. See Commonwealth

v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (“The weight of the evidence is


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J-A34033-14


exclusively for the finder of fact, which is free to believe all, part, or none of

the evidence, and to assess the credibility of the witnesses. . . . This Court

cannot substitute its judgment for that of the [finder of fact] on issues of

credibility”) (citations omitted).      “Because Appellant fails to address the

standard by which this Court reviews a weight of the evidence claim and

makes no effort to demonstrate an abuse of discretion by the trial court,”

Commonwealth v. Johnson, 985 A.2d 915, 926 (Pa. 2009), he is not

entitled to any relief on this claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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