J-S25020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL L. SANSONE                         :
                                               :
                       Appellant               :   No. 1565 MDA 2019

         Appeal from the Judgment of Sentence Entered April 23, 2019
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0002413-2016


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 19, 2020

       Appellant, Michael L. Sansone, appeals from the April 23, 2019

Judgment of Sentence entered in the Luzerne County Court of Common Pleas

following his conviction of one count each of Unlawful Contact with Minors,

Corruption of Minors, and Endangering Welfare of Children.             Appellant

challenges the preclusion of certain evidence. After careful review, we affirm.

       The relevant facts and procedural history are as follows. On May 26,

2016, the Commonwealth charged Appellant with numerous offenses1 arising
____________________________________________


1 In particular, the Commonwealth charged Appellant one count each of Rape
of a Child, Involuntary Deviate Sexual Intercourse with a Child, Aggravated
Indecent Assault of a Child, and Involuntary Deviate Sexual Intercourse—
Person Less than 16; two counts each of Corruption of Minors—Defendant Age
18 or Above, Endangering Welfare of Children, Aggravated Indecent Assault—
Without Consent, and Aggravated Indecent Assault—Complainant Less than
13; and seven counts of Unlawful Contact with Minors. See 18 Pa.C.S. §§
3121(c), 3123(b), 3125(b), 3123(a)(7), 6301(a)(1)(ii), 4304(a), 3125(a)(1),
3125(a)(7), and 6318(a)(1), respectively.
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from his reported sexual assault of two minors, K.B, and her brother, L.B.,

between July 23, 2015, and April 29, 2016. Appellant was the paramour of

K.B. and L.B.’s mother and the father of their younger siblings. At the time

of the alleged assaults, K.B. and L.B. were approximately 8 and 10 years old,

respectively, and Appellant been living with them, their siblings, and their

mother.

       On July 21, 2017, Appellant filed a Request for Discovery in which he

requested, inter alia, “[a]ny evidence favorable to the accused[.]” Request,

7/21/17, at ¶ a.       The Commonwealth responded to Appellant’s discovery

request.

       On October 18, 2017, Appellant filed a Motion to Produce Confidential

Records for In Camera Inspection, asserting that, in response to his discovery

request,    the    Commonwealth          had     provided   him   with   a   “contact

summary/safety assessment” (“Contact Summary”) from CYS. According to

Appellant, the Contact Summary revealed that the Luzerne County Children

and Youth Services (“CYS”) had been notified about K.B.’s and L.B.’s

allegations, had conducted an investigation into them, and had, therefore,

compiled files with information that “may contain exculpatory evidence.”2
____________________________________________


2 Appellant alleges in his Brief to this Court that the Commonwealth produced
to Appellant the investigative report prepared by Nanticoke Police Detective
Robert Lehman, which included the single-page CYS Contact Summary.
Appellant’s Brief at 3. According to Appellant, the Contact summary indicated
that CYS interviewed L.B. and it summarized L.B.’s report to a CYS social
worker, inter alia, that he had “secretly been watching videos about humping



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Motion, 10/18/17, at ¶¶ 2-6. That same day, the trial court issued an order

directing that CYS provide a copy of the pertinent records for review “by the

[c]ourt and [c]ounsels.” Order, 10/18/17.

       Following its inspection of the CYS files, the court issued an Order

indicating that it would not release the files because it had determined that

“they have no exculpatory value to the underlying case.” Order, 11/16/17.

Appellant’s counsel took no further action to obtain the CYS records, including

making a written request to CYS pursuant to 23 Pa.C.S. § 6340.             Since

Appellant’s counsel did not exercise his right to obtain the CYS records himself,

Appellant never requested that the trial court admit the CYS records into

evidence at trial. Thus, at the time of trial, Appellant only had the Contact

Summary.

       Appellant’s three-day jury trial commenced on October 23, 2018. The

Commonwealth presented the testimony of K.B.; L.B.; Carolyn Yevich, the

mother of K.B.’s friend, W.F.; Detective Robert Lehman of the Nanticoke Police

Department; and Cheryl Friedman, a nurse practitioner at the Lackawanna




____________________________________________


with K.B. They watched it on a website on K.B.’s tablet; she has the website
on it, but it is gone now. K.B. showed L.B. the videos. L.B. doesn’t remember
the name of the website, but it was a ‘sex website.’ Mom possibly removed
the internet and website. L.B. last watched a video this month. No one else
watched the video with them.” Id. at 3-4. Appellant does not mention who
prepared the Contact Summary and the certified record does not contain a
copy of it.



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Children’s Advocacy Center (“CAC”) in Scranton.3 The Commonwealth also

played the videotaped CAC interview of K.B.

        Appellant testified on his own behalf. He also offered the testimony of,

inter alia, the Victims’ mother, H.B., and played the videotaped CAC interview

of L.B.4    In his defense, Appellant advanced the theory that K.B. and L.B.

fabricated their claims that Appellant had abused K.B. because their mother

had caught K.B. watching pornography on K.B.’s tablet computer. Appellant

claimed that, because K.B. had watched pornography, she possessed the

knowledge to fabricate a sexual assault allegation.

        Although Appellant never obtained the CYS records, and had only the

Contact Summary, his counsel still attempted to cross-examine K.B. about the

contents of the CYS report.         N.T., 10/23/18, at 59-61 (where Appellant’s

counsel claimed that L.B. “gave a report to Children and Youth that he was

watching X-rated movies of people humping[.]”).             The Commonwealth

objected to this line of cross-examination, noting that it was beyond the scope

of its direct examination as “there’s no mention of the porn or the tablets in

any CAC tape[—i]t’s all in the CYS report” and “there’s been no motion to

bring in any [CYS] reports and any [CYS] workers.” Id. at 60.

____________________________________________


3 Nurse Friedman specialized in child victims of sexual assault and is a certified
pediatric Sexual Assault Nurse Examiner. N.T., 10/24/18, at 101-03. She
performed a sexual assault exam on K.B. and she observed K.B.’s forensic
interview by the Children’s Advocacy Center’s Jennifer Aglialoro. Id. at 111-
12, 117, 131.

4   The Notes of Testimony do not contain transcripts of the CAC interviews.

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        In response to the Commonwealth’s objection, the trial court ruled that

Appellant could cross-examine K.B. about the videotaped CAC interview, but

not about the “Children and Youth stuff.” Id. at 61-62.

        Following his trial, the jury convicted Appellant of one count each of

Unlawful Contact with Minors, Corruption of Minors, and Endangering Welfare

of Children as to K.B.      The jury acquitted Appellant on all other charges,

including all of the charges pertaining to L.B.

        On April 23, 2019, the court sentenced Appellant to a term of 72 to 144

months’ incarceration for his Unlawful Contact with Minors conviction and two

concurrent terms of 3 to 6 months’ incarceration for his Corruption of Minors

and Endangering Welfare of Children convictions.           Appellant filed a timely

Post-Sentence Motion, which the trial court denied by Order on August 29,

2019.

        This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

        Appellant raises the following issues on appeal:

        1. Did the trial court err or abuse its discretion when it denied []
        Appellant’s Motion to disclose C.Y.S. records upon the erroneous
        conclusion that the records did not contain exculpatory evidence
        where those records reflected that K.B. had watched pornography
        on a tablet through the Internet with L.B. and, also, with a friend
        W.F., which evidence was not only exculpatory, but also relevant
        to proof of motive to fabricate and to establish how the minors
        acquired knowledge of adult sexual conduct which preclusion
        deprived [] Appellant of the opportunity to present material and
        relevant evidence to rebut the accusations against him?

        2. Did the trial court err or abuse its discretion in refusing to allow
        the defense to engage in cross-examination of L.B. as to whether

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      K.B. and L.B together or with a friend, W.F., watched adult
      pornography which was relevant to both motive to fabricate and
      how the minors acquired knowledge of adult sexual conduct which
      preclusion deprived [] Appellant of the opportunity to present
      material and relevant evidence to rebut the accusations against
      him?

Appellant’s Brief at 2.

      In his first issue, Appellant claims that the trial court erred in not

providing him with the CYS records of its investigation into K.B. and L.B.’s

allegations. Id. at 11. He argues that, as the subject of the CYS investigation,

pursuant to 23 Pa.C.S. § 6340(b), he is entitled to a copy of “all information”

contained in the investigatory file.    Id. at 15-17 (quoting Section 6340).

      23 Pa.C.S. § 6340 provides, in relevant part that, “[u]pon written

request, a subject of a report may receive a copy of all information, except

that prohibited from being disclosed [which information includes data that

would lead to the identification of a person reporting suspected child abuse].”

23 Pa.C.S. § 6340(b). As an “alleged or actual perpetrator,” Appellant is a

“subject of the report.” 23 Pa.C.S § 6303.

      We find Appellant’s argument meritless. Whether the trial court erred

in determining that the CYS records did not contain exculpatory evidence is

irrelevant.   Section 6340 confers upon Appellant the right to obtain those

records directly “upon written request.” Because Appellant failed exercise his

right to obtain the CYS records directly from CYS, Appellant cannot complain

that the trial court erred in not providing the records to him.

      In his second issue, Appellant asserts that the trial court erred in

precluding him from cross-examining L.B. about whether he and K.B., or K.B.

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and W.F., had watched pornography. Appellant’s Brief at 19. Specifically,

Appellant sought to cross-examine L.B. about a statement L.B. allegedly made

to a CYS investigator that L.B. and K.B. had watched pornographic videos

together on K.B.’s tablet computer so Appellant could argue that K.B. had the

requisite knowledge about sex to fabricate a plausible claim of abuse. Id. at

20, 23. Appellant asserts in his Brief to this Court that he learned of L.B.’s

alleged statement from the Contact Summary that the Commonwealth

produced to Appellant in discovery. Id. at 3.

      “The scope of cross-examination is within the trial court’s discretion, and

this Court cannot disturb the trial court’s determinations absent a clear abuse

of discretion or an error of law.” Commonwealth v. Ramtahal, 33 A.3d

602, 609 (Pa. 2011) (citation omitted).

      Hearsay is a statement offered “in evidence to prove the truth of the

matter asserted in the statement.” Pa.R.E. 801(c)(2). Hearsay is generally

inadmissible unless an exception applies[.] Commonwealth v. Puksar, 740

A.2d 219, 225 (Pa. 1999). A hearsay exception cannot serve merely “as a

conduit to support the admission of fact-bound evidence to be used for a

substantive purpose.” Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa.

2007).

      Instantly, Appellant’s counsel was attempting to cross-examine L.B.

with information from the Contact Summary, a summary of CYS records that

included a summary of words that L.B. purportedly spoke to an unknown

person who then recorded those words. The trial court properly refused to

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permit Appellant’s counsel to cross-examine L.B. with information that is triple

hearsay.

      Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/19/2020




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