J-S61007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

RONALD MACNEAL, SR.,

                           Appellant                  No. 3523 EDA 2017


    Appeal from the Judgment of Sentence Entered September 26, 2017
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0001182-2016


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 20, 2018

      Appellant, Ronald MacNeal, Sr., appeals from the judgment of sentence

of 5 to 10 years’ imprisonment, followed by 5 years’ probation, imposed after

a jury convicted him of involuntary deviate sexual intercourse with a child

(IDSI), 18 Pa.C.S. § 3123(b), aggravated indecent assault of a child, 18

Pa.C.S. § 3125(b), and corruption of minors, 18 Pa.C.S. § 6301.        Herein,

Appellant challenges the admission of out-of-court statements by the child

victim pursuant to 42 Pa.C.S. § 5985.1, commonly referred to as the Tender

Years Hearsay Act (TYHA), as well as the sufficiency of the evidence to sustain

his convictions. After careful review, we affirm.

      The trial court set forth a detailed summary of the evidence presented

at Appellant’s trial, as follows:
      [N.W.], the victim, was five years old at the time of the incident.
      She testified by closed circuit television. [N.W.] stated she
J-S61007-18


     remembers going over [to Appellant’s] house and he touched her.
     After making that statement, [N.W.] put her head down and did
     not respond verbally to any further questions. The defense had
     the opportunity[,] but chose not to cross[-]examine.

        Megan Cronmiller is [N.W.]’s mother. On August 7, 2015[,]
     they were at [Appellant’s] house for a barbecue. Ms. Cronmiller
     became tired and wanted to go home. [Appellant] asked if [N.W.]
     could stay over at his house that night. Ms. Cronmiller agreed
     because, at that time, she had a good relationship with
     [Appellant]. Ms. Cronmiller picked [N.W.] up the next morning at
     [Appellant’s] house. Ms. Cronmiller thought it was unusual that
     [N.W.] was quiet and wanted to go home. As they were walking
     home, [N.W.] was unusually quiet and did[] [not] want to be
     touched. Ms. Cronmiller tried to hold [N.W.]’s hand to cross the
     street but she pulled away from her. When they got home, [N.W.]
     wet her pants, which was also unusual. Two hours later, [N.W.]
     wet her pants again. This abnormal behavior continued for a few
     more days. Ms. Cronmiller sensed there was something wrong
     and confronted [N.W.] about why she kept wetting her pants.
     [N.W.] put her head down and said [Appellant] touched her. Ms.
     Cronmiller then called 911 to report suspected child sexual abuse.

        Sergeant James Cadden, is employed by the Borough of East
     Lansdowne Police Department with the rank of Sergeant and the
     position of Detective. He conducts criminal investigations that are
     beyond the scope of patrol division. On August 13[], 2015, around
     noon he received a radio call from the 911 center to respond to
     810 Pembroke Avenue for a report of a child in distress. After
     interviewing Ms. Cronmiller, Sergeant Cadden interviewed [N.W.]
     alone. Initially[,] Sergeant Cadden had a conversation with
     [N.W.] to determine if she knew the difference between a truth
     and a lie, as well as reality versus make believe. Sergeant Cadden
     then asked [N.W.] what had happened. [N.W.] told Sergeant
     Cadden that she slept at [Appellant’s] house and he touched her
     in her private parts and she pointed down below to her groin area.
     Sergeant Cadden attempted to get more detail. [N.W.] described
     watching a movie, eating popcorn and then said [Appellant] put a
     finger into her private parts, and again pointed to the groin area.
     [N.W.] then began to cry and Sergeant Cadden stopped the
     interview. Sergeant Cadden’s next step was to secure [N.W.]’s
     wellbeing. He called for an ambulance and arranged for [N.W.] to
     be transported to Children’s Hospital in Philadelphia. He also
     contacted the District Attorney’s Criminal Investigation Division
     (CID) and Children and Youth Services of Delaware County (CYS).

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     He further arranged for a CYS representative to meet [N.W.] at
     the hospital. On August 14, [2015,] the day after receiving the
     complaint, Sergeant Cadden and Detective Bucci of the CID went
     to 401 Pembroke Avenue, [Appellant’s] residence[,] to interview
     him. Present at the time of the visit were [Appellant] and the
     owner of the property, Mr. Thomas Antonelli. Detective Bucci
     interviewed [Appellant] while Sergeant Cadden interviewed Mr.
     Antonelli. Mr. Antonelli confirmed [N.W.] slept there on the night
     of the incident but was hesitant to answer further questions.
     Later, after [Appellant] had been removed from his residence, Mr.
     Antonelli contacted Sergeant Cadden and stated that he was
     afraid to say anything while [Appellant] was in his residence or
     near him. Mr. Antonelli told Sergeant Cadden he wanted to
     describe the night of the incident. He stated that early in the
     morning around 3:00 [or] 3:30 a.m. he was woken up by sounds
     of [N.W.] crying out in pain[,] or what Mr. Antonelli determined
     was pain. Mr. Antonelli stated he attempted to get to the top of
     the steps but could not due to the condition of his health. He lives
     on the ground floor and could not climb the steps.

        Judy Kaplan is the Director and Lead Forensic Interviewer with
     the Family Support Line. She works for the Delaware County
     Children’s Advocacy Center, which is a program of Family Support
     Line. The Delaware County Children’s Advocacy Center is located
     at 100 West 6th Street in Media. Part of Ms. Kaplan’s role as the
     Director of the Delaware County Children’s Advocacy Center is to
     conduct forensic interviews of children when there are allegations
     of sexual abuse. The forensic interview is digitally recorded and
     a DVD is burned immediately after the forensic interview and
     given to law enforcement and CYS. Ms. Kaplan conducted a
     forensic interview with [N.W.] on August 14, 2015. The video
     recording of the interview was admitted into evidence and
     published to the jury in its entirety. In the recording, [N.W.]
     makes the following statements…. [N.W.] went to the doctor to
     get her private part checked because [Appellant] stuck his finger
     in her private part. [Appellant] went to sleep and when he woke
     up he got in bed with her and put his finger in her private part.
     When [Appellant] put his finger in her she felt like her private part
     was bleeding. [Appellant] also put his finger in her butt hole and
     it made [N.W.] feel like she was pooping. [Appellant] put his
     mouth on her private part. It felt like he was licking it. He also
     put his tongue in her “pee-pee.”        During this encounter[,]
     [Appellant] did not have his clothes on. [Appellant] put his “pee-
     pee” in her mouth and something came out in her mouth.


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     [Appellant] told [N.W.] if she told anyone what happened he
     would punch her in the face. [Appellant] fell asleep and [N.W.]
     kicked him repeatedly in his private part “[s]o he’d be dead.”

        Detective Mark Bucci has been employed by the Delaware
     County Criminal Investigation Division. He has investigated child
     abuse and child sexual exploitation for 24 to 27 years. He took a
     recorded statement from [Appellant] on August 14, 2015. The
     statement was admitted into evidence and published to the jury.
     During the statement, [Appellant] denied the allegations but
     stated he was playing “poke the butt” with [N.W.] and her brother.
     He described poke the butt as a game where he would jokingly
     poke them on their butts with his finger and the children would
     laugh. [Appellant] admitted that one time [N.W.] was wiggling
     her butt as they played the game and he accidently touched her
     vagina. [Appellant] stated that at one point during the sleep over
     [N.W.] was in bed with him. [Appellant] also stated [N.W.] stayed
     over his house four times and each time he would give her a
     bubble bath and dry her off without touching her.

         Mr. Thomas Antonelli is the owner of the property where
     [Appellant] resided at the time of the incident. He was the final
     Commonwealth witness. Mr. Antonelli takes medication to sleep
     but it does[ not] always work. A lot of times[,] Mr. Antonelli has
     trouble sleeping and spends the night laying [sic] in bed half
     asleep. On the night of the incident, between 10 p.m. and
     midnight, Mr. Antonelli heard what he described as an “ungodly
     cry out.” Due to his physical condition[,] Mr. Antonelli sleeps in
     his living room on the couch. Upon hearing the cry out[,] Mr.
     Antonelli attempted to go up the steps and screamed something
     because he wanted to know what happened.                  [Appellant]
     answered that he would be down in a little bit. About five to fifteen
     minutes later[,] [Appellant] and [N.W.] came downstairs.
     [Appellant] stated [N.W.] had an upset stomach and he was going
     to make her popcorn. Mr. Antonelli was concerned because
     [N.W.] was afraid to look at him. He testified [N.W.] had never
     been afraid to look at him. Also, Mr. Antonelli noticed a change in
     [N.W.’s] emotional state. She was usually very happy. She was
     not happy when she came downstairs. Mr. Antonelli stated[,]
     “From the time that they went in the kitchen to make the popcorn
     to the time when they went back upstairs, it was just sustained
     silence. It was like this eerie silence, like something had happened
     but it wasn’t being said out loud.” Mr. Antonelli recalled that at
     some point[,] [N.W.] started to say something and [Appellant] put
     his finger to his mouth gesturing for [N.W.] to be quiet. Mr.

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      Antonelli further testified [that,] in the beginning[,] [N.W.’s]
      mother and brother would stay over. Then it did[] [not] take long
      to become just the children and then just [Appellant] and the little
      girl.

         [Appellant] did not testify. Instead[,] he presented an expert
      witness who was qualified as an expert in pediatric medicine. Dr.
      Jeffrey Bomze opined that[,] within a reasonable degree of
      medical certainty[,] the history he reviewed did not support the
      medical findings contained in the … [h]ospital records. He based
      that opinion on the size of [Appellant’s] fingers, the small area of
      a five year old[’s] vagina and the report of [Appellant’s] moving
      the finger in the vagina without a lubricant. Dr. Bomze testified
      that based on that history there should be bleeding and evidence
      of trauma to the vagina. He also testified he thought it was
      significant there was no blood in the urine. Dr. Bomze stated the
      lack of these findings supported his conclusion.

Trial Court Opinion (TCO), 2/8/18, at 1-8 (citations to the record and footnotes

omitted).

      Based on this evidence, the jury convicted Appellant of the offenses

stated supra. On September 26, 2017, the court sentenced Appellant to 5 to

10 years’ imprisonment, followed by 5 years’ probation.        He filed a timely

notice of appeal, and he also timely complied with the trial court’s order to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, Appellant presents two issues for our review:

      I.    Whether the [t]rial [c]ourt erred in granting the
            Commonwealth’s request and permitting hearsay testimony
            pursuant to the [TYHA], 42 [Pa.C.S. §] 5985.1[?]

      II.   Whether the evidence submitted by the Commonwealth was
            insufficient as a matter of law to prove the charges of
            [IDSI], [a]ggravated [i]ndecent [a]ssault and [c]orrupting
            the [m]orals of [a minor?]

Appellant’s Brief at 6.



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      Appellant first contends that the trial court erred by admitting, pursuant

to the TYHA, out-of-court statements that N.W. made to her mother and

Sergeant Cadden, as well as the forensic interview of N.W. that was conducted

by Ms. Kaplan.     According to Appellant, N.W. was unavailable for cross-

examination at trial, and her out-of-court statements were testimonial in

nature, thereby making their admission at trial a violation of his constitutional

right to confront witnesses against him.

      This Court has explained that,

      [u]nder the TYHA, certain out-of-court statements made by a child
      victim or witness may be admissible at trial if the child either
      testifies at the proceeding or is unavailable as a witness, and the
      court finds “that the evidence is relevant and that the time,
      content and circumstances of the statement provide sufficient
      indicia of reliability.” 42 Pa.C.S.[] § 5985.1(a)(1). However, as
      discussed infra, with regard to testimonial hearsay, United States
      Supreme Court case law has rejected the indicia of reliability
      standard as violative of the Sixth Amendment to the United States
      Constitution.

             The Sixth Amendment to the United States Constitution,
      otherwise known as the Confrontation Clause, guarantees that
      “[i]n all criminal prosecutions, the accused shall enjoy the right ...
      to be confronted with the witnesses against him.” U.S. Const.
      amend. VI. Previously, in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.
      2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court
      held that the Confrontation Clause did not bar admission of an
      unavailable witness’s statement against a criminal defendant,
      provided the statement was surrounded by “adequate indicia of
      reliability.” Id. at 66, 100 S.Ct. 2531. According to the Roberts
      Court, such indicia exists when the testimony being considered
      either fits within a “firmly rooted hearsay exception,” or contains
      “particularized guarantees of trustworthiness.” Id.

           Subsequently, in Crawford v. Washington, 541 U.S. 36,
      124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States
      Supreme Court overruled Roberts in part. Specifically, the


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     Supreme Court rejected the “indicia of reliability standard” where
     a witness is deemed unavailable. Instead, the Supreme Court held
     that the admissibility of out-of-court statements by an unavailable
     witness turns upon a determination of whether the statements are
     testimonial or nontestimonial in nature:

         Where nontestimonial hearsay is at issue, it is wholly
         consistent with the Framers’ design to afford the States
         flexibility in their development of hearsay law—as does
         Roberts, and as would an approach that exempted such
         statements from Confrontation Clause scrutiny altogether.
         Where testimonial evidence is at issue, however, the
         Sixth Amendment demands what the common law
         required: unavailability and a prior opportunity for
         cross-examination.

     Id. at 68, 124 S.Ct. 1354 (emphasis added).

In re N.C., 74 A.3d 271, 274–75 (Pa. Super. 2013), aff'd, 105 A.3d 1199 (Pa.

2014).

     We begin by addressing Appellant’s argument that N.W. was unavailable

for cross-examination at trial. Appellant acknowledges that N.W. was called

to the stand by the Commonwealth; however, he contends that, during the

direct examination, N.W.

     was unresponsive to the prosecutor’s questions, and the only
     response that was at all relevant was that she testified that “he
     touched me[.”] (N.T. [Trial,] 5/31/17[, at] 57)[.] She provided
     no other details and answered no further questions, and the
     Commonwealth stopped [the] direct[-]examination. ([Id. at] 57-
     59).   Based upon her refusal to respond further to the
     Commonwealth’s attorney, defense counsel did not cross[-]
     examine N.W.

     Thereafter, counsel engaged in an argument as to whether or not
     [N.W.] “testified” for purposes of the TYHA. There was no finding
     of unavailability by the [c]ourt[,] nor was there any attempt by
     the Commonwealth to establish unavailability under the Act. The
     [c]ourt appears to have concluded that N.W. did testify, and then
     permitted the Commonwealth to introduce the video[-]taped
     interview of N.W., her mother’s testimony that included [N.W.’s]

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      hearsay statements, and additional hearsay statements
      introduced by [Sergeant] Cadden. ([Id. at] 100-15, 149-64).

Appellant’s Brief at 9-10.

      According to Appellant, the facts of this case mirror those in In re N.C.,

where this Court deemed the child witness unavailable for cross-examination,

and our Supreme Court affirmed that decision on appeal. After careful review

of both this Court’s opinion in In re N.C., and our Supreme Court’s decision

affirming, we disagree with Appellant’s argument. As this Court explained In

re N.C., the victim, A.D.,

      was four years old at the time of the adjudicatory hearing. In the
      portion of the hearing on A.D.’s competence to testify, the record
      reflects that defense counsel was able to elicit non-verbal and
      infrequent verbal responses from A.D.            During direct[-]
      examination on the facts at issue, however, A.D. was unable to
      provide testimony regarding the incident. When asked whether
      she liked N.C., A.D. shook her head. When asked whether she
      had ever been at the same house as N.C., A.D. again shook her
      head. When asked to identify N.C., A.D. gave no response. After
      a break, A.D. shook her head in the negative when asked whether
      (a) she had ever played games with N.C.; (b) whether N.C. had
      ever touched her; and (c) whether she wanted to talk about the
      incident. In fact, A.D. either shook her head in denial or gave no
      response when repeatedly asked whether N.C. had ever touched
      her.

        Eventually, N.C.’s      counsel   objected    to   the   continued
      questioning of A.D.:

         Just for the record, ... I would like to note our objection to
         continuing the questioning in the face of the child’s obvious
         assertions that she doesn’t want to participate. She wants
         to go home. She’s not responsive to [the prosecutor’s]
         questioning to any degree that’s being helpful to the
         relevant facts of this particular case. It is our position that
         to continue to cajole her or otherwise to force her into
         answering questions is rapidly approaching a coercive
         situation with this young child. And unless there’s some


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        particular reason why we should continue this, we would
        simply have to object to any continued type of coercion into
        forcing her into answering questions.

     The juvenile court overruled the objection.

        Upon returning to the stand, when the prosecutor again
     attempted to elicit testimony from A.D. regarding the incident, the
     child became nonresponsive, curling up into a fetal position. At
     that point, in time, the following discussion transpired:

        [The prosecutor]: Your Honor, let the record reflect that
        [A.D.] is curling up in a fetal position into a ball[.]

        THE COURT: The record will reflect that.

        Q. [The prosecutor]: Honey, is [N.C.] nice?

        A. [A.D.]: (No response).

        [The prosecutor]: She’s further curling up in a ball.

        THE COURT: The record will reflect that.

        [The prosecutor]: Your Honor, I don’t know if the Court
        wants to inquire at all. I don’t think I'm going to get
        anywhere.

        THE COURT: [To the child] ... [C]an you look at me? ...
        [A.D.] is not acknowledging me so, ... [to defense counsel]
        why don't you go ahead and take her.

        ... [D]o you have any questions?

        [Defense counsel]: No.

        THE COURT: Okay. Just wanted to get that clear before I
        entertain—okay. Go ahead. I think I will, for the record, I
        mean, my position in calling her was to see if she would
        testify so we don’t have to inquiry [sic ] what went on in the
        break, but she's not going to testify.

     Thus, A.D. refused to testify about the incident on direct
     examination and eventually was unable to provide any response
     to the prosecutor’s questions. Based upon the record before us,
     we conclude that the juvenile court improperly deemed A.D.
     “available” for purposes of the Sixth Amendment. The record



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      simply does not support a determination that A.D. was available
      for cross-examination by defense counsel.

In re N.C., 74 A.3d at 275-76 (emphasis in original; internal citations to the

record omitted).

      In affirming our decision in In re N.C., our Supreme Court added further

details about A.D.’s conduct on the stand, and the futile efforts made to elicit

her testimony.     For instance, the trial court twice recessed to give A.D. a

break, and it also allowed her to sit in her father’s lap, and with her maternal

grandmother, while being questioned by the prosecutor. In re N.C., 105 A.3d

at 1203-05. Nevertheless, A.D. still refused to respond to the prosecutor’s

questions. While A.D. nodded “yes” when asked if she knew N.C. and if he

was present in the courtroom, she thereafter either shook her head, or did not

respond at all, to at least 20 questions about N.C. and the alleged abuse. Id.

at 1203-04.   Nevertheless, the questioning continued, at which point A.D.

refused to look at the prosecutor or answer any questions, and stated that

she wanted to go home. Id. at 1204-05. After taking a second break, during

which defense counsel lodged the above-quoted objection, A.D. was again

questioned and remained wholly unresponsive, ultimately curling into the fetal

position.

      In comparison, here, during the direct-examination of N.W., she

testified that she was six years old, and she answered general questions about

her school, her hobbies and interests, and her pets. N.T. Trial, 5/31/17, at




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49-52. The prosecutor then asked N.W. if she knew Appellant,1 and N.W.

nodded her head. Id. at 52. When the prosecutor reminded N.W. to answer

in words, and again asked her if she knew Appellant, N.W. replied, “Yes.” Id.

The prosecutor next asked N.W. if she ever went to Appellant’s house, to which

N.W. again said, “Yes.”        Id. at 57.      N.W. also said “yes” when asked if

“anything happen[ed]” when she was at Appellant’s home. Id. When the

prosecutor asked N.W. what had happened, she replied, “He touched me.”

Id.

       Defense counsel then objected to the next question asked of N.W., and

a lengthy sidebar discussion ensued.           Id. at 57-60.   When the prosecutor

resumed the direct-examination of N.W., the following exchange occurred:

       [The Prosecutor]: [N.W.], can you tell us -- can you -- first of all,
       can you move your arms, please? We want to see your face. No?
       Can you stick your head up a little bit so we can see your face
       more? Can you tell us, please, [N.W.], just be -- just -- then it
       will be over. Where did [Appellant] touch you? That’s okay,
       [N.W.] [N.W.], thank you. I don’t have any more questions, okay?

       THE COURT: All right. Thank you. Cross-examine.

       [The Commonwealth]: Thank you, Your Honor.

       THE COURT: Thank you.

       [Defense Counsel]: I have no questions, Your Honor.

       THE COURT: All right. Okay. Thank you very much. Call your
       next witness.

Id. at 60-61.

____________________________________________


1The Commonwealth asked if N.W. knew a man named “Ronnie Rizzle,” which
Appellant acknowledged was his nickname. See N.T. Trial, 5/31/17, at 267.

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      Clearly, In re N.C. is distinguishable from this case. There, the victim

refused to verbally respond to at least twenty questions asked by the

prosecutor about N.C. and the alleged abuse. Efforts were made to encourage

A.D.’s testimony, including the court’s taking several breaks and permitting

A.D. to sit with her father and grandmother. Nevertheless, A.D. refused to

testify, stated she wanted to go home, would not look at the prosecutor, and

eventually curled into the fetal position.    Defense counsel objected to the

questioning at one point, and made a rational decision not to cross-examine

A.D. after observing the lengthy and unsuccessful efforts by the prosecutor

and the court to elicit her testimony.

      To the contrary, here, N.W. verbally answered several questions

specifically about Appellant and his abuse, including stating that Appellant had

touched her. When N.W. hid her face and refused to answer the prosecutor’s

question about where Appellant had touched her, the prosecutor immediately

concluded his direct-examination. Defense counsel then had the opportunity

to cross-examine N.W., but he chose not to ask her a single question. In light

of this record, N.W. was not unavailable, as was A.D., and Appellant was

clearly given the opportunity to cross-examine her. Thus, his argument that

his Confrontation Clause rights were violated by the admission of N.W.’s out-

of-court statements under the TYHA is meritless.

      Appellant next challenges the sufficiency of the evidence to sustain his

convictions. In support of this issue, Appellant solely contends that N.W.’s

out-of-court statements were inadmissible, and “[t]he Commonwealth

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produced no other competent evidence … to establish the elements of the

crimes of [IDSI], [a]ggravated [i]ndecent [a]ssault or [c]orrupting the

[m]orals of [m]inors beyond a reasonable doubt.” Appellant’s Brief at 12.

Because, for the reasons stated supra, we reject his argument that N.W.’s

hearsay statements were improperly admitted at trial, his sufficiency-of-the-

evidence claim fails, as well.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/18




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