J-A06004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    APRIL RENEE ROSE                           :
                                               :
                       Appellant               :   No. 1191 MDA 2018

       Appeal from the Judgment of Sentence Entered February 26, 2018
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0008416-2016


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 09, 2019

        April Renee Rose appeals from the judgment of sentence imposed on

February 6, 2018, in the Court of Common Pleas of York County following a

jury trial at which she was convicted of possession with intent to deliver

(PWID), endangering the welfare of a child (EWOC), and recklessly

endangering another person (REAP).1 She received an aggregate sentence of

10-20 months’ incarceration. In this timely appeal, Rose claims the trial court

erred in allowing the introduction of the videotaped forensic interview of the

four-year-old victim, Rose’s daughter, S.Y. After a thorough review of the

submissions by the parties, relevant law, and the certified record, we agree


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 4304(a)(1), and 2705,
respectively.
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that the trial court erred; however, the error was harmless in light of other

evidence developed at trial. Accordingly, we affirm.

      In the evening of December 3, 2016, Nancy Hauck overheard a

conversation between Rose, who was her son’s girlfriend, and S.Y. S.Y. was

three years old at the time.    Rose was telling S.Y. to take something that

would help her sleep. S.Y. did not want to because it was “yucky.” N.T. Trial,

1/16/2018, at 69-70. Rose and S.Y., who both lived in the Hauck residence,

were in the third floor bathroom at the time of the conversation.             The

conversation troubled Hauck. After Rose and S.Y. left the bathroom, Hauck

went in and saw an unknown white powder on the sink.             Hauck testified,

without objection, that she then spoke with S.Y. who told her “mommy gave

her a white powder that tasted yucky.” Id. at 70. Hauck then confronted

Rose who stated S.Y. must have been referring to her toothpaste. Hauck did

not believe that explanation as she knew S.Y. enjoyed the taste of her

toothpaste.

      Hauck then met with her paramour and told him what had occurred.

Shortly thereafter, they called the doctor’s office and took S.Y. to the hospital.

Hauck testified S.Y was lethargic at the hospital and slept while there, barely

responding even when blood was drawn. Eventually, they woke up S.Y. and

collected a urine sample from her. Testing on the urine sample revealed the

presence of opiates.

      Police and a Youth Service worker met Hauck at her home early that

morning. Rose was interviewed and Hauck showed the police the bathroom,

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but no traces of white powder were found. Shortly thereafter, while Hauck

was cleaning out Rose’s living area, she found some pills in a baggie. Hauck

called the police who arrived and confiscated the pills. Two of the pills were

hydrocodone, an opiate, and the other was a non-controlled substance. S.Y.

took part in a forensic interview during which she told the interviewer her

mother had given her the white powder.

       At trial, S.Y. was determined to be a competent witness. However, when

asked about the white powder she could not remember who had given it to

her.    After this development, the Commonwealth called the forensic

interviewer to the stand and, over objection, the recorded forensic interview

was played to the jury. The Commonwealth did not present the interview

under the Tender Years doctrine, 42 Pa.C.S. § 5985.1, in the belief that it

applied only to sex crimes against children.       Rather, the Commonwealth

claimed, and the trial court agreed, that the interview was a prior inconsistent

statement.    The video was shown to the jury and Rose was subsequently

convicted on the charges listed above.

       As noted above, Rose now argues the trial court erred in allowing the

video of the forensic interview to be shown. Our standard of review for an

evidentiary issue is as follows.

       The admission of evidence is a matter vested within the sound
       discretion of the trial court, and such a decision shall be reversed
       only upon a showing that the trial court abused its discretion. In
       determining whether evidence should be admitted, the trial court
       must weigh the relevant and probative value of the evidence
       against the prejudicial impact of the evidence. Evidence is relevant


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      if it logically tends to establish a material fact in the case or tends
      to support a reasonable inference regarding a material fact.
      Although a court may find that evidence is relevant, the court may
      nevertheless conclude that such evidence is inadmissible on
      account of its prejudicial impact.

Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2018) (citation

omitted).

      Further, if in reaching a conclusion the trial court over-rides or
      misapplies the law, discretion is then abused and it is the duty of
      the appellate court to correct the error.

Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009)

(citation omitted).

      Initially, we note that the general rule is a failure to remember does not

qualify as a reason to introduce a prior inconsistent statement.

      Thus, where the witness has made no assertions which stand in
      contradiction to statements the witness has made earlier, but
      merely claims he or she does not know or cannot remember, the
      prior statement should not be introduced.         No permissible
      evidentiary purpose is served by introducing the prior statements
      and to do so is error.

Commonwealth v. Moore, 340 A.2d 447, 449 (Pa. 1975).

      Moore addresses impeachment with a prior inconsistent statement

pursuant to Pa.R.E. 613. Showing the video after S.Y. was excused from the

stand was not used as impeachment but as                  substantive    evidence.

Nonetheless, we believe it is clear that the failure to remember is not

inherently contradictory to any prior statements given. Therefore, S.Y.’s trial

testimony that she could not recall who gave her the white powder was not

inconsistent with any prior statement she made. See also, Commonwealth



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v. Watley, 153 A.3d 1034 (Pa. Super. 2016); Commonwealth v. Morris,

417 A.2d 748 (Pa. Super. 1979); and U.S. v. Palumbo, 639 F.3d 123 (3rd

Cir. 1981),2 (all of which agree that lack of memory does not trigger the use

of a prior “inconsistent” statement).

        Although the Commonwealth specifically denied it sought the application

of the Tender Years doctrine, see N.T. Trial, 1/16/2018, at 116-17, both the

trial court and the Commonwealth now rely mainly upon the Tender Years

doctrine to support the admission of the video. The Tender Years doctrine is

found at 42 Pa.C.S. § 5985.1.3

____________________________________________


2   Federal case law does not bind us; we recognize this case is merely advisory.

3   The statute provides:

        (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



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       We agree with the trial court’s analysis regarding the general application

of the doctrine, and, under other circumstances, would agree that the video

was admissible.      However, the court’s analysis fails to account for Section

5895.1 (b) – Notice required. The Rule requires sufficient notice of the intent

to use the statement and forbids such use if notice has not been given. Case

law supports this mandate.

       The Act clearly states that in the event notice is not given, the
       “statement shall not be received into evidence.” § 5985.1(b)
____________________________________________


       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.
       (a.2) Counsel and confrontation.--If the court hears testimony
       in connection with making a finding under subsection (a)(2)(ii),
       all of the following apply:
            (1) Except as provided in paragraph (2), the defendant, the
            attorney for the defendant and the attorney for the
            Commonwealth or, in the case of a civil proceeding, the
            attorney for the plaintiff has the right to be present.
            (2) If the court observes or questions the child, the court
            shall not permit the defendant to be present.
       (b) Notice required.--A statement otherwise admissible under
       subsection (a) shall not be received into evidence unless the
       proponent of the statement notifies the adverse party of the
       proponent's intention to offer the statement and the particulars of
       the statement sufficiently in advance of the proceeding at which
       the proponent intends to offer the statement into evidence to
       provide the adverse party with a fair opportunity to prepare to
       meet the statement.

42 Pa.C.S. § 5985.1

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      (emphasis supplied). Since it is only by the authority of the statute
      that this otherwise inadmissible evidence is deemed admissible, a
      party's failure to comply with the statute’s provisions must be met
      with the result dictated by the statute. Here, the legislature
      decided that a lack of notice negates the benefit § 5985.1 provides
      to the Commonwealth's case. We have no authority to alter that
      statutory scheme.

Commonwealth v. Crossley, 711 A.2d 1025, 1028-29 (Pa. Super. 1998)

(footnotes omitted).

      Here, because the Commonwealth mistakenly believed the Tender Years

doctrine was not available regarding the forensic interview, it never provided

notice of intent to use the interview. The statute and case law are both clear

that without notice, the statement is not admissible.         Accordingly, it is

immaterial that the statement meets the other statutory requirements for

admission.

      Although we agree with Rose that the forensic interview was erroneously

allowed into evidence, we also find this represents harmless error.           The

prejudice Rose complains of was S.Y.’s identification of her as the person who

gave S.Y. the white powder. This identification was harmless because the

same information had been provided to the jury, without objection, from

Nancy Hauck, who testified, “I asked [S.Y.] first. She had told me that mommy

[Rose] gave her a white powder that tasted yucky.” N.T. Trial, 1/16/2018, at

70. Because the jury had already heard that S.Y. identified her mother, Rose,

as the person who gave her the white powder, Rose was not prejudiced when

the jury heard the same information a second time in the forensic interview.




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      Although the trial court abused its discretion by incorrectly applying the

Rules of Evidence in allowing the video of the forensic interview to be shown

to the jury, that abuse caused Rose no prejudice.      Accordingly, she is not

entitled to relief.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/09/2019




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