J-S62022-17


                                   2018 PA Super 5

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    JONATHAN ROBERT TYRRELL

                             Appellant                 No. 2011 MDA 2016


         Appeal from the Judgment of Sentence Entered October 4, 2016
                In the Court of Common Pleas of Dauphin County
                Criminal Division at No: CP-22-CR-0005166-2014


BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

OPINION BY STABILE, J.:                              FILED JANUARY 17, 2018

        Appellant, Jonathan Robert Tyrrell, appeals from the October 4, 2016

judgment of sentence imposing an aggregate 50 to 100 years of incarceration

followed by ten years of probation for rape of a child, rape of a child resulting

in serious bodily injury, indecent assault, unlawful contact with a minor, and

corruption of minors.1 The victim [“S.B.”] was Appellant’s then eight-year-old

daughter. We affirm.

        The offenses occurred on April 2, 2014. Police arrested Appellant on

August 26, 2014 after he gave a statement. Appellant filed a pre-trial motion

to suppress his statement, but the trial court denied Appellant’s motion at the

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1    18 Pa.C.S.A. §§ 3121(c) and (d), 3126, 6138, and 6301, respectively.
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conclusion of a May 6, 2016 hearing. After another pre-trial hearing, on May

23, 2016, the trial court granted the Commonwealth’s request to present

S.B.’s testimony via closed-circuit television. The trial court also ruled that

S.B.’s testimony was not tainted under the standards of Commonwealth v.

Delbridge, 855 A.2d 27 (Pa. 2003) (“Delbridge I”), and Commonwealth

v. Delbridge, 859 A.2d 1254 (Pa. 2004) (“Delbridge II”).            A jury trial

commenced on July 6, 2016.        At the conclusion of trial, the jury found

Appellant guilty of the aforementioned offenses.

      In this timely appeal, Appellant presents three issues for our review:

             I.    Did not the court err in failing to suppress statements
      that the police obtained from [Appellant] when the statements
      were not the product of a free, intelligent, knowing, voluntary,
      informed and explicit waiver by [Appellant] of his privilege against
      self-incrimination and right to counsel with prior interrogation?

            II.   Did not the court err in entering an order under 42
      Pa.C.S.A. § 5985 that the trial testimony of the minor complainant
      be taken under oath or affirmation in a room other than a
      courtroom and transmitted by a contemporaneous alternative
      method?

            III. Did not the court err in finding that the minor
      complainant was competent to testify when [Appellant] proved by
      clear and convincing evidence that she had a ‘tainted’ recollection
      under the standards adopted by the Pennsylvania Supreme Court
      in [Delbridge I and Delbridge II]?

Appellant’s Brief at 7.

      Appellant first argues that the trial court erred in denying his motion to

suppress his statement to police. We review that argument as follows:

            [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to


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       determining whether the suppression court’s factual findings are
       supported by the record and whether the legal conclusions drawn
       from those facts are correct.      Because the Commonwealth
       prevailed before the suppression court, we may consider only the
       evidence of the Commonwealth and so much of the evidence for
       the defense as remains uncontradicted when read in the context
       of the record as a whole. Where the suppression court’s factual
       findings are supported by the record, [the appellate court is]
       bound by [those] findings and may reverse only if the court’s legal
       conclusions are erroneous. Where ... the appeal of the
       determination of the suppression court turns on allegations of
       legal error, the suppression court’s legal conclusions are not
       binding on an appellate court, whose duty it is to determine if the
       suppression court properly applied the law to the facts. Thus, the
       conclusions of law of the courts below are subject to [ ] plenary
       review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017).

       Appellant argues that he did not give a knowing, intelligent, and

voluntary waiver of his Miranda2 rights.         At the suppression hearing,

Appellant testified that he was alone with police officer John Cassidy O’Connor

for a minute or a minute and a half prior to the beginning of his recorded

statement. N.T. Hearing, 5/6/16, at 56. Appellant testified that, during that

time, O’Connor threatened to arrest his wife if he declined to give a statement.

Id. at 57-58. Appellant claimed his will was overborne and he agreed to give

a statement out of concern for the wellbeing of his wife.        Id. at 58-59.

O’Connor denied making any such threat. Id. at 63-64.

       The trial court addressed this issue as follows:

             [T]he recorded interview lasted for over two hours after the
       alleged threat with Appellant initially denying and then slowly

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2   Miranda v. Arizona, 384 U.S. 436 (1966).

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      revealing information. In fact, his final statement was not even a
      confession to rape, it was an admission that there was an accident
      and [S.B.] was injured. As such, we found that his testimony that
      he felt threatened by Det. O’Connor to lack credibility. The
      portions of the interview we viewed at the hearing show a calm
      interview and Det. O’Connor indicated that his tone remained the
      same throughout. It is hard to fathom that someone who was so
      worked up about his wife after such a threat would take more than
      two hours to finally admit that perhaps an accident occurred that
      harmed his daughter.

Trial Court Opinion, 2/17/17, at 7-8.

      Thus, Appellant’s assertion of an involuntary statement rests largely on

a credibility determination and not on a conclusion of law. The record supports

the trial court’s finding that no threat occurred. First, O’Connor denied it, and

the trial court was entitled to believe him. Further, the record supports the

trial court’s finding that the course of the two-hour interview—including

Appellant’s early denial of any wrongdoing—is inconsistent with Appellant’s

claim that he agreed to speak in order to protect his wife. In summary, the

record supports the finding that O’Connor did not procure Appellant’s

statement with a threat. Appellant offers nothing else to support a conclusion

that his statement was involuntary. Appellant’s first argument lacks merit.

      Next,   Appellant   argues   the   trial   court   erred   in   granting   the

Commonwealth’s motion to present S.B.’s testimony via closed circuit

television.   Section 5985 of the Judicial Code governs testimony by a

contemporaneous alternative method:

            (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

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     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-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).

     In Commonwealth v Charlton, 906 A.2d 554, 559 (Pa. Super. 2006),

appeal denied, 911 A.2d 933 (Pa. 2006), the Commonwealth presented the

expert testimony of the child victim’s treating psychotherapist.              The


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psychotherapist testified that the victim suffered “depression, suicidal

thoughts, and post-traumatic stress disorder which likely would impact her

ability to testify effectively. Id. Likewise, the psychotherapist testified that

the defendant’s presence in the courtroom would send the victim “into an

emotional tailspin.” Id. Given this testimony, we found no error in the trial

court’s decision to permit the victim to testify via closed circuit television. Id.

      Similarly, in Commonwealth v. Torres-Kuilan, 156 A.3d 1229, 1230

(Pa. Super. 2017), the victim, seven years old at the time of trial, broke down

and cried and refused to enter the courtroom to testify.          The trial court

conducted an in camera hearing to determine whether to permit the child to

testify via closed circuit television. The court heard testimony from the victim

and a woman who had been keeping the victim company that morning and

ultimately decided to permit the victim to testify remotely. Id. We affirmed,

reasoning that the trial court’s observations are a sufficient basis for

permitting remote testimony under § 5985(a.1)(1).

      Instantly, the trial court heard the expert testimony of Mindy Bell, a

“licensed professional counselor.” N.T. Hearing, 5/23/16, at 6. Bell testified

that she believed it would be “traumatic” for S.B. to testify in open court in

front of her father and others. Id. at 33. Asked why she believed that, Bell

responded:

           Because of how hard it was for her to disclose to me;
      because as with any child, they still feel a certain loyalty to their
      parent. So I think it would be very difficult for her to be in the


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      same room with her father and a bunch of witnesses and say what
      happened.

Id.

      Tricia Deatrick, a caseworker for Dauphin County Children and Youth

Services, testified as a fact witness. Deatrick said that S.B. suffered because

her allegations against Appellant broke her family up. Id. at 62. As of the

time of trial, S.B. and her siblings were in foster care. Id. Also,

             [S.B.] has struggled a great deal with anxiety and
      depression and PTSD.         And this has all just amplified her
      symptoms. She’s really struggling. She feels a lot of—a lot of
      different feelings, but she still really loves both of her parents and
      she’s really struggled with that, the love that she has for them
      and then what happened to her as well as, you know, the not [sic]
      belief that she has from her family.

             On top of it, she has not seen [Appellant] in over a year and
      a half, and that’s a huge deal for her. And for her to—she’s talked
      about for this day, date that she has to tell her story to be the day
      that she has to see him for the first time in a year and a half, how
      scarey [sic] that is for her.

            And I just don’t think she’s ready to stand in a courtroom
      facing him and be able to tell her story. I think she’s really just
      not in a place for that yet.

Id. at 62-63.

      Few published decisions address § 5985, and those that do have not

announced a standard for reviewing the trial court’s decision.        In Torres-

Kuilan, this Court employed the principles of statutory construction to

determine whether the Commonwealth’s proffer complied with § 5985’s

terms.   Torres-Kuilan, 156 A.3d at 1231-32.          The Court observed:      “a

statute’s plain language provides the best indication of legislative intent. We


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will only look beyond the plain language of the statute when words are unclear

or ambiguous, or the plain meaning would lead to ‘a result that is absurd,

impossible of execution or unreasonable.’” Id. at 1231 (quoting 1 Pa.C.S.A.

§ 1922(1)).

      Based on the hearing testimony discussed above, we conclude that the

Commonwealth’s proffer complied with the plain language of § 5985(a.1)(2),

which permits a witness to testify via closed circuit television based on the

testimony of “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.1)(2). Appellant argues for a contrary result because S.B.

did not testify, S.B.’s current counselor did not testify, Bell had not seen S.B.

for approximately nine months prior to the trial, S.B.’s foster parents did not

testify, Bell’s expert opinion did not conform to § 5985(a.1), and Deatrick was

not qualified as an expert.     In each case, Appellant seeks to impose a

requirement that does not appear in the statute.        Section 5985 does not

require testimony from the proposed witness or the witness’ current

counselor. Nor does it require testimony from a parent/foster parent or an

expert witness. Appellant did not object when Deatrick opined that Appellant

was not ready to appear in court and testify in the presence of her father.

N.T. Hearing, 5/23/16, at 63.

      Concerning Appellant’s argument that Bell’s testimony failed to conform

to the standard of § 5985(a.1), Appellant notes that the Commonwealth in


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Charlton presented the victim’s current counselor; that the counselor in

Charlton gave testimony that closely tracked the language of § 5985; that

the trial judge in Torres-Kuilan personally observed the victim break down

as she was entering the courtroom; and that the trial judge in Torres-Kuilan

conducted an in camera hearing.          Appellant’s Brief at 31-33.       We find

Appellant’s argument unavailing, as the distinct facts of published cases do

not add to or alter the applicable statutory language. The testimony of Bell

and Deatrick clearly supports a finding that Appellant’s presence would have

caused serious emotional distress and impaired her ability to communicate.

We do not believe § 5985 requires a testifying witness to use any specific

phrasing. Further, nothing in the statute requires the trial judge to observe

the victim, in an in camera hearing or otherwise. We discern no error in the

trial court’s decision to permit S.B. to testify via closed circuit television.

      Finally, Appellant argues that S.B. was not competent to testify because

coercive interrogation techniques tainted her recollection. Our Supreme Court

addressed this issue in Delbridge I and II. Our Supreme Court has held that

“[c]ompetency is the rule and incompetency the exception.”              Rosche v.

McCoy, 156 A.2d 307, 309 (Pa. 1959). To be deemed competent, a child

witness must demonstrate:

             1) such capacity to communicate, including as it does both
      an ability to understand questions and to frame and express
      intelligent answers, (2) mental capacity to observe the occurrence
      itself and the capacity of remembering what it is that she is called
      to testify about and (3) a consciousness of the duty to speak the
      truth.

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Id. at 310 (emphasis in original). The Rosche Court noted, “children are

peculiarly susceptible to the world of make-believe and of suggestions.” Id.

Delbridge I described taint as “the implantation of false memories or

distortion of actual memories through improper and suggestive interview

techniques[.]” Delbridge I, 855 A.2d at 30. As such, it relates to the second

prong of the Rosche test, the child’s mental capacity to observe, recall, and

testify about the occurrence. Id. at 40.

      The Supreme Court permitted pretrial examination of possible witness

taint “where there is some evidence of improper interview techniques,

suggestive questioning, vilification of the accused and interview bias may have

influenced a child witness to such a degree that the proffered testimony may

be irreparably compromised.” Id. at 39. Taint is distinct from credibility. Id.

at 40. Taint bears on a witness’s competence, and it is the proper subject of

a pre-trial competency hearing. Id. Credibility is a matter for the finder of

fact. Id. The party asserting incompetence bears the “burden of production

of evidence to show taint and persuasion to show taint by clear and convincing

evidence. Id. at 40. “The clear and convincing burden accepts that some

suggestibility may occur in the gathering of evidence, while recognizing that

when considering the totality of the circumstances, any possible taint is

sufficiently attenuated to permit a finding of competency.” Id. at 41. We

review the trial court’s competency finding for abuse of discretion. Id. at 41.




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        Post-remand, the Supreme Court in Delbridge II upheld the trial

court’s finding that the defendant failed to demonstrate the presence of taint.

Delbridge II, 859 A.2d at 1258. The defendant “failed to elicit any testimony

[…] supporting the allegations that [the victims] had been subjected to

repetitive, suggestive, or coercive interview techniques, to interviewer bias,

or to inappropriate influence from their mother.” Id.

        Instantly, Appellant notes that S.B. did not disclose Appellant’s sexual

abuse in forensic interviews that occurred on April 7, 2014 and February 12,

2015.    S.B.’s first disclosure of sexual abuse came in a journal entry she

provided to Bell on March 23, 2015 after Bell encouraged S.B. to keep a

journal and describe memories and feelings. Thus, S.B.’s first disclosure of

abuse occurred more than eleven months after the date of the alleged assault.

Likewise, S.B. disclosed Appellant’s sexual abuse to Deatrick when Deatrick

visited her in her foster home on June 22, 2015. Finally, in an April 28, 2016

forensic interview, S.B. disclosed Appellant’s sexual abuse to law enforcement

authorities after a thirteen-minute break in the interview, during which she

spoke to Deatrick, among others.

        Bell and Deatrick were the only two witnesses to testify at the

competency hearing. Bell testified that, when she began her sessions with

S.B., she was aware of the allegations of S.B.’s sexual abuse. N.T. Hearing,

5/23/16, at 27. Bell conducted two or three rapport building sessions and

then encouraged S.B. to start “journaling and talking with her foster mom


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about trauma or anything that had happened to her.” Id. at 28. Bell did not

ask for S.B. and her foster mother to work on the journaling together. Id. at

29. Rather, “[t]he journaling was really [S.B.’s]. I just wanted her foster

mom to be support in case she came—you know, had some negative emotions

from anything she was journaling about.” Id. at 29. Bell testified that she

did not give S.B. specific instructions on how to journal: “I basically just told

her to journal. Now, once she disclosed, I told her to journal if she could

remember more things and how she felt.          That would have been the only

direction I gave her with respect to journal entries.” Id. at 45. Bell testified

that she did not use leading questions in her sessions with S.B.. Id. at 31.

As noted above, S.B. disclosed Appellant’s sexual assault to Bell via journal.

Id.

      Deatrick described her first meeting with S.B. this way:

             When I introduced myself to [S.B.], she asked me if I knew
      why she was in foster care. And I explained that I knew what was
      in the record. And she asked me, you know—or I asked her if she
      wanted to tell me anything. I said, ‘I know what’s in the record.’
      I said, ‘Don’t know if that’s all of the truth or, you know, if there’s
      anything more you want to tell me, but if you’d like to tell me
      something, I’ll listen; and if you don’t, that’s okay.’

             At first [S.B.] did talk a little bit and then said she wanted
      to stop talking, so she stopped and she left the room. And then I
      spoke with her two siblings. And during my conversation with her
      sister […], [S.B.] came back in and she wanted to tell me the
      truth.

Id. at 56.




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      We discern no abuse of discretion in the trial court’s finding that no taint

existed. Here, as in Delbridge II, Appellant produced no evidence that S.B.

was subjected to “repetitive, suggestive, or coercive interview techniques, to

interviewer bias, or to inappropriate influence” from any party. Delbridge

II, 859 A.2d at 1258. The record reflects only that Bell encouraged S.B. to

journal, and that Deatrick asked S.B. if she wanted to tell her anything.

Appellant produced no evidence that S.B.’s foster mother or anyone else close

to S.B. exerted any improper influence. In short, there is no evidence that

S.B.’s testimony was compromised in any way. We agree with the trial court

that Appellant failed to carry his burden of proving taint by clear and

convincing evidence.

      In summary, we conclude that each of Appellant’s arguments lacks

merit. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2018




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