J. A19032/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :         No. 1703 MDA 2017
                                         :
GEOFFREY ALAN BECKNER                    :


               Appeal from the Order Entered October 26, 2017,
               in the Court of Common Pleas of Franklin County
               Criminal Division at No. CP-28-CR-0001167-2017


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 27, 2019

      The Commonwealth appeals from the October 26, 2017 order granting

appellee’s motion to quash the criminal information and ordering that a new

preliminary hearing be conducted before a different magisterial district judge.

After careful review, we vacate the order and remand for further proceedings

consistent with this memorandum.

      The relevant facts and procedural history of this case are as follows:

            [Appellee] was arrested and charged with multiple
            counts of sexual offenses[1] allegedly committed
            against four male children of his former girlfriend
            [M.]: M.M. age eight, T.M. age nine, B.M. age ten,
            and A.C. age twelve.       All four children were
            interviewed about the allegations at the Children’s
            Advocacy Center (“CAC”). The CAC interviews were

1Specifically, appellee was charged with aggravated indecent assault and four
counts each of indecent assault and corruption of minors. See 18 Pa.C.S.A.
§§ 3125(b), 3126(a)(7), and 6301(a)(1)(ii), respectively.
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              conducted on August 1, 2016, and all four were
              videotaped. The case was initially scheduled for a
              preliminary hearing on October 25, 2016, but the
              Commonwealth        requested    a    continuance  to
              November 29, 2016, so that Tender Years and
              Closed-Circuit Testimony Motions could be filed. Both
              Motions were filed on October 27, 2016. Pursuant to
              its Tender Years Motion, the Commonwealth seeks to
              introduce the statements made by M.M., T.M., B.M.,
              and A.C. to the forensic interviewer as substantive
              evidence at both the preliminary hearing and at trial.
              Pursuant to its Motion for Closed-Circuit Testimony,
              the Commonwealth requests the Court to permit each
              child’s   testimony      to    be    transmitted   by
              contemporaneous alternative method so that they do
              not have to testify in the presence of [appellee].

              An in camera hearing was held on February 6, 2017,
              at which time the children gave testimony. Pursuant
              to 42 Pa.C.S.[A.] § 5985.1,[2] the child victims were

2   42 Pa.C.S.A. § 5985.1 provides, in relevant part, as follows:

              (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. . . . 31 (relating
                    to sexual offenses) . . . 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


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            questioned outside the presence of [appellee]. The
            Commonwealth also called the following witnesses:
            the boys’ mother, [M.], her partner, [S.L.], and
            forensic interviewer, Becky Voss. At the conclusion of
            the hearing, the Court asked both counsel to submit
            briefs in support of their respective positions. The
            Commonwealth filed its Brief in Support of its Motion
            for Closed-Circuit Testimony and the Admission of
            Statements Under the Tender Years Exception to the
            Hearsay Rule on March 13, 2017. [Appellee] filed his
            Brief in Opposition to the Commonwealth’s Tender
            Years Motion and Motion for Closed Circuit Testimony
            on March 13, 2017. On April 6, 2017, this Court
            entered an Opinion and Order of Court granting both
            of the Commonwealth’s Motions.

Opinion of the Honorable Carol L. Van Horn, 12/22/17 at 2-3.

      On May 9, 2017, at the behest of appellee, Magisterial District Judge

Duane K. Cunningham (“MDJ Cunningham”) issued subpoenas for the children

to testify on appellee’s behalf at the preliminary hearing scheduled for June 1,

2017. The Commonwealth filed a motion to quash the subpoenas with the

Franklin County Court of Common Pleas the following day. Appellee, in turn,

filed an answer to the Commonwealth’s motion to quash on May 19, 2017.

On May 31, 2017, an evidentiary hearing on this matter was conducted before

Franklin County Court of Common Pleas Judge Van Horn, at the conclusion of

which this matter was remanded to MDJ Cunningham “to determine if any

condition should be placed upon his order for subpoena in light of




                        (ii)   is unavailable as a witness.

42 Pa.C.S.A. § 5985.1(a)(1), (2).


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[Judge Van Horn’s] opinion filed April 6, 2017.” (Order, 5/31/17 at ¶ 2.) A

preliminary hearing was held before MDJ Cunningham on June 1, 2017. At

said hearing, MDJ Cunningham ruled that appellee was precluded from calling

the children as witnesses and imposed the condition that the closed-circuit

video testimony would be admitted pursuant to Judge Van Horn’s April 6, 2017

order and opinion. All charges were bound over for trial.

      On July 18, 2017, the Commonwealth filed a criminal information. On

August 18, 2017, appellee filed a “Motion to Quash and Motion for Temporary

Assignment of Issuing Authority.”       Judge Van Horn held a hearing on

appellee’s   motion   on   October    26,   2017.     Following      said   hearing,

Judge Van Horn entered an order quashing the criminal information and

ordering that a new preliminary hearing be conducted before a different

magisterial district judge.     (See order, 10/26/17 at ¶¶ 2-3.)                 The

Commonwealth filed a timely notice of appeal on November 1, 2017.3               On

November 7, 2017, Judge Van Horn ordered the Commonwealth to file a

concise   statement   of   errors   complained   of   on   appeal,    pursuant    to

Pa.R.A.P. 1925(b).    The Commonwealth filed its timely Rule 1925(b)

statement on November 28, 2017, and Judge Van Horn filed a Rule 1925(a)

opinion on December 22, 2017.




3 The Commonwealth certified in its notice of appeal that, pursuant to
Pa.R.A.P. 311(d), the October 26, 2017 order will terminate or substantially
handicap the prosecution.


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     On April 3, 2018, the Commonwealth filed a motion requesting

permission “to file a Corrected Brief to reflect the correct Jurisdictional

Statement/Appeal by Permission.”     (See “Motion to File Corrected Brief,”

4/3/18 at 1.) The Commonwealth indicated that it “inadvertently inserted a[]

Statement of Jurisdiction from another County in another Commonwealth

appeal having to do with an appeal as of right regarding sentencing as

opposed to this appeal which is interlocutory and which may be taken with

permission.” (Id. at ¶ 2.) On April 6, 2018, this court issued a per curiam

order granting the Commonwealth’s motion.        The Commonwealth filed its

amended brief that same day. Appellee, in turn, filed an amended brief on

April 24, 2018, arguing that:

           The instant appeal must be quashed because (1) the
           Commonwealth has waived the appeal taken as of
           right under Rule 311(d) by asserting the appeal
           should be granted by permission in all of its filings in
           the Superior Court, (2) the Court has not granted
           permission for the instant appeal, (3) the
           Commonwealth has failed to follow any of the
           procedures set forth in Rule 312 or Chapter 13, and
           (4) the order appealed does not conform to the
           requirements of 42 Pa.C.S.[A.] § 702(b) relative to
           interlocutory orders appealable by permission.

Appellee’s amended brief at 10. On April 25, 2018, appellee filed a motion to

quash the Commonwealth’s appeal, which was deferred to the merits panel

on May 15, 2018.

           The appealability of an order directly implicates the
           jurisdiction of the court asked to review the order.
           [T]his Court has the power to inquire at any time,



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              sua sponte, whether an order             is   appealable.
              Pennsylvania law makes clear:

                    [A]n appeal may be taken from: (1) a final
                    order or an order certified as a final order
                    (Pa.R.A.P. 341); (2) an interlocutory
                    order as of right (Pa.R.A.P. 311); (3) an
                    interlocutory   order     by    permission
                    (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A.
                    § 702(b)); or (4) a collateral order
                    (Pa.R.A.P. 313).

Commonwealth v. Tchirkow, 160 A.3d 798, 803 (Pa.Super. 2017) (internal

quotation marks and case citations and omitted).

        For the reasons that follow, we find that the October 26, 2017 order

meets the requirements for an interlocutory appeal as of right pursuant to

Pa.R.A.P. 311(d),4 because it will terminate or substantially handicap the

Commonwealth’s       prosecution.      We    further   note   that   although   the

Commonwealth asserts in its amended brief that it is now “seeking permission

(pursuant to Pa.R.A.P. [] 312, Chapter 13) to file this interlocutory appeal[,]”

it continues to aver that the October 26, 2017 order will substantially handicap




4   Rule 311(d) provides as follows:

              (d)   Commonwealth         appeals     in    criminal
                    cases.--In a criminal case, under the
                    circumstances     provided    by     law,   the
                    Commonwealth may take an appeal as of right
                    from an order that does not end the entire case
                    where the Commonwealth certifies in the notice
                    of appeal that the order will terminate or
                    substantially handicap the prosecution.

Pa.R.A.P. 311(d).


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its prosecution. (See Commonwealth’s amended brief at 4.). Accordingly,

we cannot agree with appellee that the Commonwealth waived its right to

“take an appeal as of right” pursuant to Rule 311(d). See Pa.R.A.P. 311(d).

     Courts in this Commonwealth have long recognized that the Tender

Years Hearsay Act, 42 Pa.C.S.A. § 5985.1, governs the admission of hearsay

statements made by a child victim of sexual abuse. See Commonwealth v.

Walter, 93 A.3d 442, 451-452 (Pa. 2014).         “The tender years exception

allows for the admission of a child’s out-of-court statement because of the

fragile nature of young victims of sexual abuse.”          Commonwealth v.

Lukowich, 875 A.2d 1169, 1172 (Pa.Super. 2005), appeal denied, 885 A.2d

41 (Pa. 2005). A statement admitted under Section 5985.1 must possess

sufficient indicia of reliability, as determined from the time, content, and

circumstances of its making. Commonwealth v. O’Drain, 829 A.2d 316,

320 (Pa.Super. 2003) (citation omitted).

           In all circumstances, the trial court is required to first
           assess the reliability of the proffered statement and
           second, the availability of the child who made it. If
           the child whose statement is offered will not be
           presented as a witness, the court must determine
           whether the child is “unavailable,” that is whether
           testifying would cause serious emotional distress that
           would substantially impair the child’s ability to
           communicate reasonably before the court. Only if
           both prongs are met will the evidence be deemed
           admissible.

Fidler v. Cunningham-Small, 871 A.2d 231, 235 (Pa.Super. 2005)

(applying the Tender Years Hearsay Act exception in a civil proceeding).



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“Factors to consider when making the determination of reliability include, but

are not limited to, the spontaneity and consistent repetition of the

statement(s); the mental state of the declarant; and, the lack of motive to

fabricate.” Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa.Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005).

      Here, Judge Van Horn explicitly found in her opinion in support of the

April 6, 2017 order that “the statements of all four children that were given to

the forensic interviewer during the August 1, 2016 interviews are relevant and

possess sufficient indicia of reliability.” (Opinion of Judge Van Horn, 4/6/17

at 30.) In reaching this conclusion, Judge Van Horn reasoned that requiring

the children to testify in appellee’s presence at the preliminary hearing would

cause them to suffer serious emotional distress and impair their ability to

effectively communicate. (Id. at 24, 26, 28, 30.) Thus, it logically follows

that the court’s October 26, 2017 order granting appellee a new preliminary

hearing in front of a different magisterial district judge, at which the children

could presumably be subpoenaed to testify in appellee’s presence, would

subject them to additional emotional distress and substantially handicap the

Commonwealth’s prosecution.       Accordingly, we deny appellee’s motion to

quash this appeal.

      We now turn to the merits of the Commonwealth’s argument.              The

Commonwealth raises the following issue for our review:

            Did [Judge Van Horn] commit an error of law in
            granting [appellee’s] motion to quash information


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            based solely on a purported error committed by the
            magisterial district judge with regard to a ruling made
            on [appellee’s] ability and/or right to subpoena the
            victim(s) to testify at the preliminary hearing?

Commonwealth’s amended brief at 6.

      Our standard of review in assessing whether a trial court erred in

quashing a criminal information is well settled.

            The decision to grant a motion to quash a criminal
            information or indictment is within the sound
            discretion of the trial judge and will be reversed on
            appeal only where there has been a clear abuse of
            discretion. Discretion is abused when the course
            pursued by the trial court 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.

Commonwealth v. Wyland, 987 A.2d 802, 804-805 (Pa.Super. 2010)

(citations and quotation marks omitted), appeal denied, 8 A.3d 346 (Pa.

2010).

      In the instant matter, Judge Van Horn found that “[it] is persuaded that

[appellee] is permitted to call the children to testify on his behalf at the

preliminary hearing” and that the Commonwealth’s argument to the contrary

is meritless. (Opinion of Judge Van Horn, 12/22/17 at 8.) In reaching this

conclusion, Judge Van Horn relied primarily on Pa.R.Crim.P. 542(C)(3)5 and




5 Rule 542(C)(3) provides that, “[t]he defendant shall be present at any
preliminary hearing except as provided in these rules, and may . . . call
witnesses on the defendant’s behalf, other than witnesses to the defendant’s
good reputation only[.]” Pa.R.Crim.P. 542(C)(3).


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our supreme court’s decision in Commonwealth v. Mullen, 333 A.2d 755

(Pa. 1975). At the October 26, 2017 hearing, Judge Van Horn set forth the

following rationale in support of her decision to quash the criminal information

and order that a new preliminary hearing be conducted before a different

magisterial district judge:

            [T]his isn’t a case where I believe [appellee’s] request
            to call the witnesses at a preliminary hearing is an
            attempt to gain an advantage or to get discovery or
            to find out what the Commonwealth’s case is because
            we’ve already heard through the prior hearing what
            the witnesses have said.          The hearing to the
            Commonwealth on the Commonwealth’s motion to
            have the victim[s] testify by closed circuit. We heard
            each of the victims, so this is not a fishing expedition
            on the part of [appellee] to try to find out what are
            these alleged victims going to say or how they could
            be challenged. We’ve already gone through that, so I
            believe     that    Mullen     is   good     and    that
            [Pa.R.Crim.P.] 542([C])(3) does permit [appellee] to
            call witnesses on his behalf and the proposed
            witnesses are not ones to testify to his good
            reputation so they are not prohibited by the rule.

Opinion of Judge Van Horn, 12/22/17 at 8-9, quoting notes of testimony,

10/26/17 at 6-7 (emphasis added).

      While it may be true that appellee has a rule-based right to call

witnesses at a preliminary hearing, see Commonwealth v. Ricker, 120 A.3d

349 (Pa.Super. 2015), appeal dismissed as improvidently granted, 170

A.3d 494 (Pa. 2017), it is also true that the findings of the trial court as to the

Tender Years issue apply with equal force to the preliminary hearing. Upon

review, we find that Mullen is distinguishable from the instant matter and



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that Judge Van Horn’s reliance on it is misplaced.         Mullen involved a

defendant who was denied the right to call prospective Commonwealth

witnesses, including “the police officer who was the prosecutor,” at a

preliminary hearing. Mullen, 333 A.2d at 756. The Court of Common Pleas

of Montgomery County disagreed with the district justice’s decision and

remanded for a preliminary hearing de novo with the defendant having “the

right to call any witnesses in his behalf excepting only witnesses to his good

reputation.” Id. at 756-757. The Commonwealth subsequently appealed. In

ruling that the defendant was not limited to calling only those witnesses at his

preliminary hearing who would offer testimony favorable to his defense, the

Mullen court held that “the defendant has the right to contest the existence

of a prima facie case and may not be denied the opportunity of presenting

evidence which, in his view, negates its existence.” Id. at 757.6

        Unlike in Mullen, where the defendant was charged with criminal

homicide and aggravated assault and the prospective witnesses were




6   Additionally, we note that the comment to Rule 542 indicates that:

              Paragraph (C)(3) is intended to make clear that the
              defendant may call witnesses at a preliminary hearing
              only to negate the existence of a prima facie case,
              and not merely for the purpose of discovering the
              Commonwealth’s case. The modification changes the
              language of the rule interpreted by the Court in
              [Mullen]. This amendment was made to preserve the
              limited function of a preliminary hearing.

Pa.R.Crim.P. 542 Comment.


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eyewitnesses to these crimes, this matter concerns the testimony of child

victims of sexual abuse and the Tender Years Hearsay Act, whose purpose is

to protect the emotional well-being of said witnesses. We decline to find that

Mullen entitles appellee to present an unrestrained defense at a preliminary

hearing involving such witnesses.     The principal function of a preliminary

hearing “is to protect the right against unlawful arrest and detention.”

Commonwealth v. Ricker, 170 A.3d 494, 497 (Pa. 2017). At this hearing

the Commonwealth bears the burden of establishing a prima facie case that

a crime has been committed and that the accused is the one who committed

it. See Commonwealth v. Patrick, 933 A.2d 1043, 1045 (Pa.Super. 2007),

appeal denied, 940 A.2d 364 (Pa. 2007). “Although a preliminary hearing

may permit capable defense counsel to lay the groundwork for a trial defense,

its intended purpose is not primarily to provide defense counsel with

the opportunity to assess the credibility of Commonwealth witnesses

. . . or to design avenues for the impeachment of witnesses at trial.”

Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013) (emphasis

added).

      Here, MDJ Cunningham was well within his discretion to protect the

emotional well-being of the children by limiting the preliminary hearing to

include only that evidence relevant to a prima facie showing, pursuant to

Judge Van Horn’s April 6, 2017 order and opinion. Any further testing of this

testimony must await a full trial.   Judge Van Horn’s disregard of her prior



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holding in electing to quash the criminal information and order that a new

preliminary hearing be conducted before a different magisterial district judge

contravened the purposes of the Tender Years Hearsay Act and constituted an

abuse of its discretion. Accordingly, we vacate the October 26, 2017 order

and   remand   this   case   for   further   proceedings   consistent   with   this

memorandum.

      Order vacated.   Motion to quash appeal denied.        Case remanded for

further proceedings. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/27/2019




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