J-S19016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.J.B., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA
                                                       No. 1035 MDA 2016


                  Appeal from the Order Entered May 27, 2016
                In the Court of Common Pleas of Clinton County
              Criminal Division at No(s): CP-18-JV-0000019-2016


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 12, 2017

        Appellant, the Commonwealth of Pennsylvania, appeals from the

juvenile court’s order sustaining Appellee’s, J.J.B. (a minor), objection to the

admission of a March 23, 2016 videotaped statement of the victim, on the

grounds that the statement is hearsay. We affirm.

        The juvenile court provided the factual background and procedural

history of this case as follows:
        J.J.B. (hereinafter referred to as [] Juvenile) is a minor … and is
        presently sixteen (16) years of age. [] Juvenile is presently in
        the custody of R.F. and B.F., who pursuant to an [o]rder entered
        by this [c]ourt in a [d]ependency matter are permanent legal
        custodians. R.F. and B.F. have been foster parents in … Clinton
        County for more than two (2) decades.

        Chief David Winkleman of the Pine Creek Township Police
        Department filed a [w]ritten [a]llegation against [] Juvenile on
        March 14, 2016[,] alleging that on March 12, 2016[,] [] Juvenile
        had committed the offense of Indecent Assault. [] Juvenile was
        charged with two (2) Counts of Indecent Assault, Count one (1)
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        graded as a misdemeanor of the first degree[,] and Count two
        (2) graded as a misdemeanor of the second degree. Count No.
        1 is graded as a misdemeanor of the first degree because it is
        alleged that [] Juvenile had indecent contact with a person under
        the age of thirteen (13) years of age, who is four (4) years
        younger than [] Juvenile and not married to [] Juvenile.[1] Count
        No. 2 alleges that [] Juvenile had indecent contact with a person
        under sixteen (16) years of age, four (4) or more years younger
        than [] Juvenile and not married to [] Juvenile.[2] The victim in
        this matter is a nine (9) year old daughter of the permanent
        legal custodians R.F. and B.F. … [T]he victim[] … is clearly four
        (4) years younger than [] Juvenile. Chief Winkleman alleges
        that on March 12, 2016[,] … while playing hide and seek[,] the
        victim hid in the closet of the victim’s bedroom and that []
        Juvenile entered the closet to hide with the victim and started to
        rub the vaginal and buttocks area of the victim, over the clothes
        of the victim.

        [] Juvenile was detained at the Central Counties Youth Detention
        Center and a Petition Alleging Delinquency was filed on March
        14, 2016[,] by Probation Officer Meghan Bitner.          At the
        Detention Hearing on March 16, 2016, Senior Judge J. Michael
        Williamson continued [] Juvenile’s placement in the Central
        Counties Youth Detention Center and an Adjudication Hearing
        was scheduled for March 28, 2016. At the hearing on March 28,
        2016, the Commonwealth was not prepared to proceed and the
        matter was continued. [] Juvenile continued to be held in the
        Central Counties Youth Detention Center.       The Adjudication
        Hearing was rescheduled for April 6, 2016.

        At the April 6, 2016 hearing, the Commonwealth failed in the
        Commonwealth’s attempt to prove that the victim was
        unavailable as a witness as defined in 42 Pa.C.S.[] § 5985.1,[3]

____________________________________________


1
    See 18 Pa.C.S. § 3126(a)(7).
2
    See 18 Pa.C.S. § 3126(a)(8).
3
  This statute is referred to as the Tender Years Hearsay Act (“TYHA”). See,
e.g., Commonwealth v. Walter, 93 A.3d 442, 444-45 (Pa. 2014). It
states, in relevant part, the following:
(Footnote Continued Next Page)


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      was unable to proceed further and requested a continuance.
      During said hearing, the Commonwealth presented the
      testimony of the victim in [c]hambers before this [c]ourt with
      counsel present.    The victim indicated on at least two (2)
      occasions that the victim did not want to discuss the alleged
      incident that occurred on March 12, 2016. No testimony was
      elicited from the victim who was the only witness presented
                       _______________________
(Footnote Continued)

      (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:
             (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. § 5985.1(a), (a.1).




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     concerning the indecent assault at the hearing of April 6, 2016.
     Also on April 6, 2016, this [c]ourt released [] Juvenile from
     [d]etention and placed [] Juvenile in the legal and physical
     custody of [] Juvenile’s permanent legal guardians with the
     understanding that the Clinton County Children and Youth Social
     Services Agency would implement a safety plan.               The
     Adjudication Hearing was continued to May 6, 2016.

     At the May 6, 2016 hearing, the Commonwealth presented two
     (2) witnesses. The first witness was once again the victim, who
     [was] eight (8) years of age. The victim indicated that the
     victim did not know her address or in what town the victim lived,
     did not know the victim’s grade in school, and did not remember
     talking to anyone in Bellefonte, which is a Borough in Centre
     County, Pennsylvania, where the Child Advocacy Center is
     located. The victim indicated that the victim did not remember
     talking about [] Juvenile to anyone or any allegations about []
     Juvenile.

     The second witness presented by the Commonwealth at the May
     6, 2016 hearing was Ashley Carper, who is a Forensic
     Interviewer with the Children’s Advocacy Center located in
     Bellefonte, Pennsylvania. Ms. Carper interviewed the victim on
     March 23, 2016. Ms. Carper indicated that Ms. Carper was
     trained in forensic interviewing and that forensic interviewing
     was an attempt to grant the child a safe space to be interviewed.
     Ms. Carper indicated that Ms. Carper attempts to build a rapport
     with the child and then to allow the child to give a narrative as to
     what occurred. The Commonwealth then requested to present
     the videotape of the interview which occurred at the Child
     Advocacy Center in Bellefonte, Pennsylvania on March 23, 2016.
     [] Juvenile objected. This [c]ourt recessed the hearing and
     directed the parties to file [b]riefs. This [c]ourt has … received
     the [b]riefs.

Trial Court Opinion (TCO), 5/27/2016, at 1-4.

     After receiving the parties’ briefs regarding whether the victim’s

videotaped statement should be admitted into evidence, the juvenile court

ultimately determined that it should be excluded because the victim did not

testify concerning the alleged incident and “Juvenile has not had a full and



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fair opportunity to cross-examine the victim which will deny [] Juvenile’s

right to confront [] Juvenile’s accuser.” Id. at 7.

       Subsequently, the Commonwealth filed a timely notice of appeal

pursuant to Pa.R.A.P. 311(d), in which it certified that the juvenile court’s

order will terminate or substantially handicap the prosecution. Thereafter, it

filed a timely concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b).           On appeal, the Commonwealth raises a

single issue for our review:
       Did the court err in finding that the videotape[d] statement of
       the victim from March 23, 2016 was hearsay, and therefore
       sustain[ing] Juvenile’s objection?

Commonwealth’s Brief at 4 (numbering and unnecessary capitalization

omitted).4

       Initially, we set forth our standard of review:
       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. [] Walter, …93 A.3d [at] 449 …
       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, 13 L.Ed.2d 923 (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, 621 Pa. 527,
____________________________________________


4
  With respect to the Commonwealth’s argument that the victim’s videotaped
statement should be admitted under the TYHA, we believe a more apt
phrasing of this issue is whether the juvenile court erred in finding that the
videotaped statement was not admissible hearsay.



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      542–45, 79 A.3d 520, 530–531 (2013) citing Commonwealth
      v. Cannon, 610 Pa. 494, 22 A.3d 210 (2011).

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

      The Commonwealth argues that “[t]he [v]ictim took the stand, briefly

testified, and was available for cross-examination by [] Juvenile.         The

specific elements under … [the TYHA,] 42 Pa.C.S.[] § 5985.1[,] were

satisfied when the [v]ictim took the stand, and therefore it is permissible for

the   videotape[d]   interview   to   be    played   by   the   Commonwealth.”

Commonwealth’s Brief at 8. We disagree.

      The Commonwealth claims that “[t]he question presented at the May

6, 2016 hearing focused specifically on what and how much testimony is

sufficient to satisfy … 42 Pa.C.S.[] § 5985.1(a)(2)(i).” Id. at 12. However,

we think that this mischaracterizes the issue; instead, the juvenile court

pointed out that, at the hearing, Juvenile “objected[,] indicating that the

videotape[d] statement was still hearsay as the victim had not testified

regarding the facts of the incident at the hearing and the victim could not be

cross-examined on those facts.” TCO at 4. Thus, in its opinion, the juvenile

court considered the Confrontation Clause of the Sixth Amendment of the

United States Constitution, as well as the Confrontation Clause of Article I,

Section 9 of the Pennsylvania Constitution, and concluded that “no

opportunity occurred for [] Juvenile’s counsel to cross-examine the victim

concerning the incident.” Id. at 5, 6.      The juvenile court observed that at

the May 6, 2016 hearing, “the victim did not remember participating in the

forensics interviews … [,] and at the proceeding on April 6, 2016[,] the

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victim declined to discuss the incident.”        Id. at 5.   Accordingly, the trial

court made the finding that “the victim … declined to testify regarding this

incident,” and did not simply fail to “recall the alleged criminal incident.” Id.

at 8.5

         Our Supreme Court has explained:
         The Confrontation Clause guarantees that “in all criminal
         prosecutions, the accused shall enjoy the right ... to be
         confronted with the witnesses against him.”        U.S. CONST.,
         amend. VI. The High Court in Crawford [v. Washington, 541
         U.S. 36 (2004)] … rejected the indicia of reliability standard
         which it had applied previously in Ohio v. Roberts, 448 U.S. 56
         … (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…. See also Commonwealth v. Yohe, … 79 A.3d 520,
         530–31 ([Pa.] 2013); Commonwealth v. Allshouse[,] … 36
         A.3d 163, 171 ([Pa.] 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 …
         (citation omitted).

         While the right to confrontation is a fundamental one, this Court
         has explained it is not absolute.       See Commonwealth v.
____________________________________________


5
  The trial court states that “[t]here is no question that the child victim’s
statement to a forensic interview specialist is testimonial.” TCO at 5.
Further, the Commonwealth does not argue on appeal that the victim’s
videotaped statement is not testimonial.



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     Wholaver, … 989 A.2d 883 (2010) cert. denied [562 U.S. 933],
     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.[] § 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, … (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 … (1990).

     Commonwealth v. Williams, [624 Pa. 183], 84 A.3d 680, 684
     ([Pa.] 2014).

In re N.C., 105 A.3d at 1215 (original brackets omitted).

     In In re N.C., our Supreme Court affirmed that a juvenile defendant’s

right to be confronted with a witness against him under the Confrontation

Clause of the Sixth Amendment of the United States Constitution had been

“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.” Id. at 1200. In that case, the

four-year-old victim “answered questions concerning various innocuous


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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[,]” but “was unable to                      provide direct examination

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

with her” and “became totally unresponsive to [the prosecutor’s] repeated

efforts to elicit information regarding inappropriate contact [the juvenile

defendant] may have had with her….” Id. at 1216.6 Ultimately, while on

the witness stand, the victim recoiled into a fetal position, and “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….”                     Id. at 1200,

1216. Afterwards, following subsequent testimony by a forensic interviewer,

the juvenile court admitted the victim’s video interview into evidence over

defense    counsel’s     objection    that     it   violated    the   juvenile’s   right   to

confrontation under the Sixth Amendment. Id. at 1206-07.

       In determining whether the victim’s videotaped interview in that case

violated the juvenile’s right under the Confrontation Clause of the Sixth

Amendment, our Supreme Court observed that “the juvenile court conflated

the   federal    constitutional    challenge        before     it—whether   [the    juvenile


____________________________________________


6
  The Supreme Court noted that the victim was three years old at the time of
the alleged incident, and was four years old when the adjudicatory hearing
took place. Id. at 1200, 1200 n.1.



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defendant’s] right to confrontation … had been satisfied—with the separate

issues of [the victim’s] competency to testify at the hearing … and of

whether the forensic interview was admissible under the TYHA.”             Id. at

1216.    It noted that “[a]n 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[,]” and it did not “speak to whether

[the victim’s statements] in the forensic interview satisfied the requirements

of the TYHA….”          Id. at 1215 n.18.          Therefore, with respect to the

Confrontation Clause issue, our Supreme Court explained that it could not

“find the confrontation element of Crawford was met herein, for Crawford

and its progeny require an opportunity for effective cross-examination which

[the juvenile defendant] simply did not have[,]” as the victim provided

“virtually no verbal responses on direct examination … which effectively left

defense counsel with no opportunity to cross-examine her on the charges

brought against [the juvenile defendant].” Id. at 1216, 1217.7
____________________________________________


7
  Cf. Commonwealth v. Kemmerer, 33 A.3d 39, 43-44 (Pa. Super. 2011)
(determining that the appellant’s constitutional right to confront witnesses
against him was not violated where “[the victim] … testified at both the
pretrial TYHA hearing, and at trial via closed circuit television, regarding
[the a]ppellant’s conduct, and [the a]ppellant likewise had ample
opportunity to confront and cross-examine [the victim]”) (emphasis added);
Commonwealth v. Charlton, 902 A.2d 554, 560-61 (Pa. Super. 2006)
(“Here, unlike Crawford, the record reveals the victim testified at length
regarding the underlying events at both the pretrial competency hearing
and the jury trial, and [the] appellant had more than ample opportunity to
(Footnote Continued Next Page)


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      While the victim’s inability to communicate regarding the alleged

incident at issue in the case sub judice was not as acute as the victim’s

behavior in In re N.C., we conclude that Juvenile in this case was similarly

denied an opportunity for effective cross-examination.8 Like the victim in In

re N.C., the victim here did not provide any testimony regarding the alleged

incident.   Further, the juvenile court determined that the victim’s lack of

testimony regarding the alleged incident was not due to lack of memory, but

because she declined to testify about it. See TCO at 7-8.9 Accordingly, we

agree with the juvenile court that “Juvenile has not had a full and fair

opportunity to cross-examine the victim which will deny [] Juvenile’s right to

confront [] Juvenile’s accuser.” Id. at 7. Therefore, the juvenile court did




                       _______________________
(Footnote Continued)

confront and cross-examine her in each instance. Accordingly, we do not
find the concerns of Crawford are implicated in this case.”) (emphasis
added; citations omitted).
8
   In fact, Juvenile claims that “[n]ot only was there no opportunity for
‘effective’ cross-examination, there was no opportunity for cross-
examination at all given that no evidence of any crime was established.”
Juvenile’s Brief at 6. Moreover, the juvenile court points out that “the
victim’s testimony is not only vital but evidently the only evidence that the
Commonwealth possesses in this matter linking [] Juvenile to this alleged
crime.” TCO at 6.
9
  The Commonwealth acknowledges that the victim “was unable and
unwilling to provide details surrounding the interview [at the Child Advocacy
Center] or the allegations.” Commonwealth’s Brief at 6.



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not err or abuse its discretion in precluding the admission of the videotaped

statement.10

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




____________________________________________


10
    As an alternative argument, the Commonwealth claims that the
videotaped statement should be admitted as a prior recorded recollection
under Pa.R.E. 803.1(3). Commonwealth’s Brief at 14-15. Notwithstanding
the constitutional issue discussed above, because the trial court found that
the victim declined to testify regarding the alleged incident — and was not
simply unable to recall it — we agree with the trial court that this hearsay
exception does not apply, and we do not delve into it further. See TCO at 7-
8.



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