J-A03044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: R.H., A MINOR                        :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
APPEAL OF: R.H., A MINOR                    :          No. 937 EDA 2014

             Appeal from the Dispositional Order January 28, 2014
             In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-JV-0002253-2013


BEFORE: GANTMAN, P.J., MUNDY J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED MAY 10, 2016

        Appellant, R.H., appeals from the dispositional order entered in the

Philadelphia County Court of Common Pleas, following his adjudication of

delinquency for indecent assault—complainant less than thirteen years of

age, and indecent exposure.1 We affirm.

        In its opinion, the juvenile court fully and correctly sets forth the

relevant facts and procedural history of this case.      Therefore, we have no

reason to restate them.

        Appellant raises the following issue for our review:

           DID NOT THE [JUVENILE] COURT ERR AND ABUSE ITS
           DISCRETION IN ADJUDICATING APPELLANT DELINQUENT,
           INSOFAR AS THE DECISION WAS BASED ON IMPROPER
           FACTORS, SPECIFICALLY THE CONDUCT OF THIRD
           PARTIES FOR WHOM APPELLANT COULD NOT BE HELD
           RESPONSIBLE, AND APPELLANT WAS COMPLYING WITH
           THE DIRECTIVES OF HIS PROBATION OFFICER AND THE
           COURT-ORDERED SUPERVISION PLAN?


1
    18 Pa.C.S.A. §§ 3126(a)(7) and 3127(a), respectively.
J-A03044-16



(Appellant’s Brief at 3).

      Our review of a juvenile court’s disposition implicates the following

principles:

         Our standard of review of dispositional orders in juvenile
         proceedings is well settled. “The Juvenile Act grants broad
         discretion to the court when determining an appropriate
         disposition. We will not disturb a disposition absent a
         manifest abuse of discretion.” In re R.D.R., 876 A.2d
         1009, 1013 (Pa.Super. 2005) (internal citation omitted).
         Moreover, “[a] petition alleging that a child is delinquent
         must be disposed of in accordance with the Juvenile Act.
         Dispositions which are not set forth in the Act are beyond
         the power of the juvenile court.” In re J.J., 848 A.2d
         1014, 1016-17 (Pa.Super. 2004) (citation omitted).

Commonwealth v. B.D.G., 959 A.2d 362, 366-67 (Pa.Super. 2008) (en

banc). Further, the purpose of the Juvenile Act is as follows:

              Consistent with the protection of the public interest,
              to provide for children committing delinquent acts
              programs of supervision, care and rehabilitation
              which provide balanced attention to the protection of
              the community, the imposition of accountability for
              offenses committed and the development of
              competencies to enable children to become
              responsible and productive members of the
              community.

         42 Pa.C.S.A. § 6301(b)(2). This section evidences the
         Legislature’s clear intent to protect the community while
         rehabilitating and reforming juvenile delinquents.

In re L.A., 853 A.2d 388, 394 (Pa.Super. 2004) (some internal citations and

quotation marks omitted). “The rehabilitative purpose of the Juvenile Act is

attained though accountability and the development of personal qualities

that will enable the juvenile offender to become a responsible and productive


                                      -2-
J-A03044-16


member of the community.”        In re R.D.R., supra (quoting In re B.T.C.,

868 A.2d 1203, 1205 (Pa.Super. 2005)).

      The Juvenile Act defines a delinquent child as “[a] child ten years of

age or older whom the court has found to have committed a delinquent act

and is in need of treatment.” 42 Pa.C.S.A. § 6302. Indecent assault and

indecent exposure constitute delinquent acts. See id. Section 6352(a) of

the Juvenile Act sets forth the available dispositions for a delinquent child as

follows:

           § 6352. Disposition of delinquent child

               (a) General rule.—If the child is found to be a
           delinquent child the court may make any of the following
           orders of disposition determined to be consistent with the
           protection of the public interest and best suited to the
           child’s treatment, supervision, rehabilitation and welfare,
           which disposition shall, as appropriate to the individual
           circumstances of the child’s case, provide balanced
           attention to the protection of the community, the
           imposition of accountability for offenses committed and the
           development of competencies to enable the child to
           become a responsible and productive member of the
           community:

                                   *    *    *

                (2) Placing the child on probation under supervision
             of the probation officer of the court or the court of
             another state as provided in section 6363 (relating to
             ordering foreign supervision), under conditions and
             limitations the court prescribes.

                (3) Committing the child to an institution, youth
             development center, camp, or other facility for
             delinquent children operated under the direction or
             supervision of the court or other public authority and
             approved by the Department of Public Welfare.


                                       -3-
J-A03044-16



              (4) If the child is 12 years of age or older,
            committing the child to an institution operated by the
            Department of Public Welfare.

                                  *    *     *

         In selecting from the alternatives set forth in this section,
         the court shall follow the general principle that the
         disposition imposed should provide the means through
         which the provisions of this chapter are executed and
         enforced consistent with section 6301(b) (relating to
         purposes) and when confinement is necessary, the court
         shall impose the minimum amount of confinement that is
         consistent with the protection of the public and the
         rehabilitation needs of the child.

42 Pa.C.S.A. § 6352(a)(2)-(4).    Furthermore, this Court has held that the

purpose of juvenile proceedings is not to punish the juvenile offender, but to

seek treatment, reformation, and rehabilitation. See In re R.D.R., supra

at 1016 (citations and quotation marks omitted); In re J.B., 39 A.3d 421,

427 (Pa.Super. 2012) (citation omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Robert J.

Rebstock, we conclude Appellant’s issue merits no relief.          The juvenile

court’s opinion comprehensively discusses and properly disposes of the

question presented.   (See Juvenile Court Opinion, filed April 24, 2015, at

14-15) (finding: court initially placed Appellant on interim probation, ordered

treatment for Appellant’s sex behavior problems, and prohibited any

unsupervised   contact   with   minors;     at   January   28,   2014    hearing,

Commonwealth requested adjudication of delinquency because Appellant


                                      -4-
J-A03044-16


was suspended from school for fighting and needed continued treatment; at

hearing, court questioned Appellant’s mother and probation officer and

discovered that Appellant’s twenty-four-year-old aunt was supervising him;

Appellant was not being properly supervised by adult at all times, including

time headed to, during, and returning from school every day; Appellant had

been permitted to violate court’s initial dispositional order, and Appellant

needed further treatment and intensive supervision to ensure he had no

unsupervised contact with minors; Appellant’s mother was unable to provide

him with required intensive supervision; intensive treatment services for

Appellant’s sex behavior problems were necessary for Appellant’s care and

rehabilitation, and protection of public).      The record supports the court’s

decision; therefore, we have no reason to disturb it. Accordingly, we affirm

on the basis of the juvenile court’s opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2016




                                     -5-
                                                                       Circulated 04/15/2016 01:35 PM




       THE COURT OF COMMON PLEAS OF PHILADELPIDA                        cotiif\ ,, E. D
                                                                        (\\C, r,t)\   R 2.4 Pi, \ • 3 \ .
                     FAMILY DIVISION, JUVENILE BRANCH                  1u   "1-\
                                                                                PRO.PRO TH'{.

IN THE INTEREST                                             : PETITION NUMBER


OF R.H.                                                     : CP-51-JV-0002253-2013


                             OPINION OF THE COURT


       In this juvenile proceeding, the defendant, R.H., was charged in a petition with

Rape, (F-1), Involuntary Deviate Sexual Intercourse (F-1), Sexual Assault (F-2), Indecent

Assault (M-1) and Indecent Exposure (M-1). As the defendant was a juvenile at the time

of his arrests in Philadelphia County, his initials are being used for purposes of

confidentiality.

       The grounds for the Defendant's appeal, as set forth in his Supplemental

Statement of Errors Complained of on Appeal filed on February 25, 2015, pursuant to

Rule 1925 (b) of the Pennsylvania Rules of Appellate Procedure, are as follows:

       A) The trial court erred in admitting into evidence the out-of-court
          statement of the complaining witness (J .R.) and denying the
          appellant's motion to bar said statements. The statements did not meet
          the requirements of the Tender Years statute regarding reliability or
          unavailability as defined by the statute. Furthermore, the admission of
          those out-of-court statements violated appellant's constitutional right
          to confront the witnesses against him.

        B) The trial court erred in adjudicating appellant delinquent, insofar as
           appellant, while on interim probation, did comply with the court-
           ordered safety plan, as approved by the appellant's probation officer,
           and was complying with all of the requirements of probation.
           Appellant was in substantial compliance with the conditions of interim
           probation insofar as he was able to comply, and it was an abuse of
           discretion to effectively punish appellant for complying with the court-




                                             1
            ordered safety plan simply because the court later became dissatisfied
            with the plan.

PROCEDURAL HISTORY

        On June 11, 2013, the Defendant was arrested by the Philadelphia Police

Department on charges of Rape, (F-1), Involuntary Deviate Sexual Intercourse (F-1),

Sexual Assault (F-2), Indecent Assault (M-1) and Indecent Exposure (M-1).

        In Delinquency Petition,# CP-51-N-0002253-2013,        filed on June 11, 2013, the

Commonwealth alleged that:

        On or about May 2, 2013, at or near 666 North 12th Street, the Defendant,
        without consent, by forcible compulsion, or by threat of same, penetrated
        the genitals or anus of the complainant, J.R., age 5.

        On June 11, 2013, at the Detention Hearing, the Defendant was discharged from

the Juvenile Justice Service Center to the custody of his mother. In-Home Detention

(IHD) was ordered with permission to attend school and lawyer appointments. The

Defender Association of Philadelphia was appointed to represent the Defendant and the

Master ordered that discovery be provided by June 27, 2013. A Stay Away Order was

also entered. The matter was continued until July 11, 2013.

        On July 11, 2013, the Defendant's attorney requested a continuance for further

investigation.   The Defendant remained subject to In-Home Detention with house

restriction. The matter was continued until August 8, 2013.

        On August     2, 2013, the District Attorney's        Office filed a Motion for

Protracted/Semi-Protracted   Adjudicatory Hearing.

        On August 8, 2013, the Defendant was discharged from In-Home Detention and

placed on GPS monitoring with house restrictions because it was alleged the Defendant

was involved in an altercation on August 4, 2013 at 1:30 AM. and a Private Criminal



                                             2
Complaint was filed. The Stay Away Order was continued and the matter was listed for

an adjudicatory hearing on August 28, 2013.

       On August 26, 2013, the District Attorney's Office filed a Notice of Intent to

Proceed by way of the "Tender Years" Exception to the Hearsay Rule.

       On August 28, 2013, the Court granted the District Attorney's Office Oral Motion

to amend charges to Rape-Forcible Compulsion, 18 Pa.C.S. § 3121 (F-1). The Court also

found that the complaining witness, a four (4) old child, was not competent to testify. The

Defendant remained on GPS monitoring with house restrictions and the matter was

continued for an adjudicatory hearing on October 3, 2103, to allow the Defendant's

attorney to respond to the Notice of Intent to Proceed by way of the "Tender Years"

Exception to the Hearsay Rule.

       On September 9, 2013, the Defendant's attorney filed a Motion in Opposition of

J.R.'s Out-Of-Court Statements under the Tender Years Exception to the Hearsay Rule,

18 PA.C.S. § 5958.1.

        On October 3, 2013, the Court granted the District Attorney's request to proceed

by way of the "Tender Years" exception to the hearsay rule. After a hearing on all of the

evidence, the Court found that the Defendant committed the delinquent acts of Indecent

Assault (M-1) and Indecent Exposure (M-1). The Court found the Defendant not guilty of

all of the remaining charges. The Defendant was placed on Interim Probation under the

supervision of the Philadelphia    Juvenile Probation Department, ordered to undergo

random drug screens and complete twenty (20) hours of community service. The Court

also ordered a Behavioral Health Evaluation - Psychosexual Assessment and referred the

Defendant to the Joseph J. Peters Institute. The Defendant remained on GPS monitoring




                                              3
with house restrictions. In addition, the Court ordered that the Defendant was to have "no

unsupervised contact with minor children".

       On January 28, 2014, the Court adjudicated the Defendant delinquent because: the

Defendant committed delinquent acts of Indecent Assault and Indecent Exposure; had

violated the Court's initial dispositional order by having contact with minors; and he was

in need of further treatment and intensive supervision to ensure that there was no

unsupervised contact with minors. The Court also continued the Defendant's probation

and ordered the Defendant to attend Joseph J. Peters Institute. Additionally, the Court

ordered DNA testing and payment of court costs in the amount of $48.50.

       On February 6, 2014, the Defendant's attorney filed a Motion to Reconsider

Adjudication of Delinquency.

       On March 18, 2014, the Court denied the Defendant's Motion to Reconsider

Adjudication of Delinquency because the Defendant committed delinquent acts of

Indecent Assault and Indecent Exposure and he was in need of treatment and supervision.

       On March 31, 2014, the Court entered an Order directing Defendant to file a

Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b) within

twenty one (21) days.

        On April 14, 2014, the Defendant's attorney filed a Request for Extension of

Time to File a Supplemental Statement of Errors upon Receipt of All Notes ·of

Testimony.

        On April 21, 2014, the Defendant's attorney filed an initial Statement of Error

Complained of on Appeal.




                                             4
       On April 28, 2014, the Court entered an Order permitting Defendant's attorney

additional time to file a Statement of Errors Complained of on Appeal upon receipt of all

Notes of Testimony.

       On October 22, 2014, the Court provided Defendant's counsel the Notes of

Testimony from the October 3, 2013, adjudicatory hearing.

       On February 11, 2015, the Court provided Defendant's counsel the Notes of

Testimony from the January 28, 2014, dispositional hearing.

       On February 18, 2015, the Court was advised via email from the Court Reporter

Melissa Belmont that the Notes of Testimony from the August 28, 2013, adjudicatory

hearing could not be transcribed      due to a malfunction with her computer. This

information was then provided to the Defendant's counsel.

       On Februarys IP.i '2.015, the Defendant's counsel filed a Supplemental Statement of

Errors Complained of on Appeal. The Defendant's Supplemental Statement of Errors

Complained of on Appeal raised two issues in this appeal and advised that he would file,

pursuant Pa. R.A.P, 1923, a Statement in Absence of Transcript for the Events of August

28, 2013.

        On February 27, 2015, the Defendant's counsel filed a Statement in Absence of

Transcript for the Events of August 28, 2013.

        On or about March 13, 2015, the Commonwealth filed a Response to Defendant's

Proposed Statement in Absence of Transcript.

        At the April 7, 2015, Review Hearing, the Court heard from the Defendant's

 Probation Office and received the March 31, 2015, report of Ketsia Paul, M.S.Ed. After

 reviewing the report that the Defendant had been successfully discharged from Joseph J.




                                             5
Peters   Institute   Outpatient   Sex   Offense   Treatment     Program    and hearing    the

recommendations      of the Joseph J. Peters Institute and Probation Department, the Court

discharged the petition. The Court also received a set of stipulated facts from appellate

counsel regarding the Statement in Absence of Transcript.

         With the filing of its Opinion, the Court also filed the Court's Statement in

Absence of Transcript Pursuant to Rule 1923 of the Pennsylvania Rules of Appellate

Procedure.

FACTS

         At the October 3, 2013, adjudicatory hearing before this Court, two (2) witnesses

testified. (NIT 10-3-2013, page 3.)

         The first witness, D.R, is the older sister of the victim in this case. (NIT 10-3-

2013, page 4.) D.R. testified that on May 2, 2013, at 5:00 P.M. five (5) children were

playing a video game in her living at 666 North      12th   Street in Philadelphia. (NIT 10-3-

2013, pages 5-7.) Among them was Defendant, R.H., one of their neighbors, whom the.

witness identified in court. (NIT 10-3-2013, pages 6, 9.) D.R. stated that right after the

Defendant, left the house in the middle of the game, they were playing, her brother

started to cry. (NIT 10-3-2013, pages 8 - 14.) D.R. testified that she asked her brother was

wrong and he said that the Defendant, R.H., made the victim touch his private parts. (NIT

10-3-2013, page 11.) D.R. indicated that that her brother gave her this information about

ten (10) minutes after the Defendant left while they were still in the living room. (NIT 10-

3-2013, page 11.) D.R. added that her step-cousin, T.R. was with them at the time of the

victim's statement. (NIT 10-3-2013, page 11.) D.R. testified that she then took her

brother upstairs to his room and asked him if that was everything. (NIT 10-3-2013, page




                                              6
11.) D.R. added that her brother asked if she would tell on him and D.R. said, "I was like

no. It's not your fault if you did anything". (NIT 10-3-2013, page 11.) D.R. then indicated

that she asked her brother again what was wrong and he said that the Defendant "made

me put my mouth on his private part". (NIT 10-3-2013, pages 11-12.) D.R. immediately

called her step-mother who was at a doctor's appointment. (N/T 10-3-2013, page 13.) Her

step-mother returned in five (5) minutes. (NIT 10-3-2013, page 20.)

       D.R. also testified that her brother said that it happened when he went upstairs to

get R.H. to continue the game. (NIT 10-3-2013, page 12.) D.R. stated that she then went

upstairs into the hallway and her brother wasn't there. (NIT 10-3-2013, page 12.) D.R.

said she saw the Defendant coming down the stairs. (NIT 10-3-2013, page 12.) D.R.

called for her brother to come down to the first level of the home. (NIT 10-3-2013, page

12.) D.R. added that no one else was upstairs at the time. (NIT 10-3-2013, pages 23-24.)

D.R. said that her brother kept putting his head down and, before the Defendant left the

house; the victim told R.H. they were no longer friends. (NIT 10-3-2013, page 13.) D.R.

testified that the victim told his mother what happened when she got home. (NIT 10-3-

2013, page 14.) D.R. also added that since this incident occurred, her brother has been

angry. (NIT 10-3-2013, page 14.)

        The second witness was L.W., the victim's mother. She testified that she returned

home to 666 North 12th Street, Philadelphia a little before 5:00 P.M. She said that upon

her return, the victim and her step-daughter, D.R. jumped into her truck and began to tell

her what happened. (NIT 10-3-2013, page 25.) L.W. testified that her son told her that the

Defendant made him touch his penis and put it in his mouth and that he brushed his teeth

afterwards. (NIT 10-3-2013, page 25.) L.W. noted that her son was in tears, very shaken




                                              7
and scared. (NIT 10-3-2013, page 26.) Following this disclosure, L.W. said that her son

would not go out for the next several months. (NIT 10-3-2013, page 26.) L.W. also

testified her son made her close the blinds for the rest of the day of the incident. (NIT 10-

3-2013, page 26.) Her son also told her he did not want any adult males in the house.

(NIT 10-3-2013,page 26.) When men came to check on her son, L.W. indicated he would

stay very close or behind her. (NIT 10-3-2013, page 27.) Her son also told her that he was

afraid of grown men. (NIT 10-3-2013, page 28.) L.W. explained that her son was "shaken

to pieces" when they first came to court even though he was surrounded by family. (NIT

10-3-2013, page 28.) L.W. also noted that her son sobbed when he was told what would

happen in the court room and that he shook and wrapped his arms around her when he

came out. (NIT 10-3-2013, page 29.) L.W. testified that her son would not leave her side

for the next two (2) days. (NIT 10-3-2013, page 29.) L.W. noted that her son is now very

cautious when he goes outside and he is receiving treatment to help him talk about his

experience and not to suppress it. (NIT 10-3-2013,page 30.) L.W. explained that she tries

to get her son to talk about it and to realize that he might see the Defendant when he goes

outside orto court. (NIT 10-3-2013, page 30.) L.W. also stated her son is not forthcoming

in his responses but he will eventually answer her questions regarding the incident. (NIT

10-3-2013, pages 30-31.) L.W. added that he son never had any arguments with the

Defendant before nor did he ever accuse anyone else of harming him. (NIT 10-3-2013,

page 31.) However, since the incident, her son has been very argumentative and

physically mean. She also testified that her son yells and fights more than he did prior to

the incident. (NIT 10-3-2013, pages 31-32.)




                                               8
        On cross examination, L. W. admitted that she did not call the police on the date of

the incident. (NIT 10-3-2013, page 33.) She went to the police on the following day and

told the police what her son told her. (NIT 10-3-2013, page 33.) She also took her son to

the Philadelphia Children's Alliance, but did not participate in her son's interview. (NIT

10-3-2013, page 34.) Additionally, she stated that over the course of the time in therapy,

her son has been able to talk about the incident with a therapist. (NIT 10-3-2013, page

35.)

        By stipulation of counsel, the video of the victim's May 13, 2013, interview with

the Philadelphia Children's Alliance case worker was played for the Court on October 3,

2103.

LEGAL ARGUMENT

    1       TENDER YEARS HEARSAY ACT (TYHA) AND
            CONFRONTATION CLAUSE CHALLENGE

        Hearsay is generally inadmissible unless it falls within an exception to the hearsay

rule. Commonwealth v. Bryson, 860 A.2d 1101, 1103 (Pa. Super. 2004), appeal denied,

583 Pa. 658, 875 A.2d 1072 (2005) (en bane). One such exception is found in section 42

Pa.C.S.A. § 5985.1. Under 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.A. § 5985.l(a)(l).

42 Pa.C.S.A. § 5985.1 - Admissibility of certain statements.

(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.... 31 (relating to sexual


                                              9
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
          (ii) is unavailable as a witness.

(a.I) 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 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.--lf 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.


        Where a child under the age of 14 is called to testify as a witness, this Court must

make an independent determination of competency, which requires a finding that the

 witness possess (1) a capacity to communicate, including both an ability to understand




                                                 10
questions and to frame and express intelligent answers; (2) the mental capacity to observe

the actual occurrence and the capacity of remembering what it is that he or she is called

to testify about; and (3) a consciousness of the duty to speak the truth. Commonwealth v.

Washington. 722 A.2d 643, 646 (Pa. 1998) (citing Rosche v. McCoy, 156 A.2d 307, 310

(Pa. 1959)).

         Under Pa.RE. 601(b), a person may be deemed incompetent to testify if the Court

determines that, because of a mental condition or immaturity, the person: (1) is, or was, at

any relevant time, incapable of perceiving accurately; (2) is unable to express himself or

herself so as to be understood either directly or through an interpreter; (3) has an

impaired memory; or (4) does not sufficiently understand the duty to tell the truth.

Pa.RE. 60l(b).1 In the case of Commonwealth v Walter, 93 A.3rd 442 (Pa.) 2014, our

Supreme Court held that a child need not be deemed competent to testify as a witness in

order for the trial court to admit the child's out-of-court statements into evidence

pursuant to the TYHA.

         Under the TYRA, an out-of-court statement of a child sexual assault victim or

witness who is twelve years old or younger, is admissible into evidence in a criminal or

civil proceeding if two requirements are satisfied. First, the trial court must find that the

evidence is relevant and that the time, content, and circumstances of the statement

provide sufficient indicia of reliability. Second, the child must either (1) testify at the

proceeding, or (2) be deemed unavailable as a witness. 42 Pa.C.S.A. § 5985.l(a)(2)(i),

(ii). Commonwealth v Walter (supra.)




1 On August 28, 2013, the Court found that the victim was 4 years old and not competent to testify due to

his age and his inability to understand the duty to tell the truth.


                                                     11
        The Tender Years Hearsay Act allows the Court to determine whether the

statements given by the victim, J.R, to his older sister, D.R., and to his mother, L.W.,

made on May 2, 2013, and to Philadelphia Children's Alliance (PCA) interviewer,

Michelle King, are admissible.      The Commonwealth      provided the police reports and

statements      of D.R. and L. W. and the video of the PCA interview to Defendant's

attorney.

        In the present case, the court heard testimony from D.R., the victim's step-sister,

and L.W., the victim's mother regarding her son's behavior and demeanor following the

incident underlying in this matter. D.R. stated that the victim started crying almost

immediately after the Defendant left their home. When L.W. came home, she noted that

her son had tears in his eyes, was scared and also very shaken. L.W. also testified her son

made her close the blinds for the rest of the day of the incident and he did not want any

male figures in the house. L.W. noted that her son's behavior noticeably changed since

the incident.

        This Court considered     the time, content, and circumstances     of the victim's

statement, the first prong of the TYHA test, prior to deciding that the hearsay statements

provided sufficient indicia of reliability to the Court so as to be admissible under the

TYHA. Commonwealth v Walter (supra.) With regard to the second prong of the TYHA

test, this Court found the testimony of D.R. and L.W. presented compelling difficulties

experienced by the victim following the incident. These difficulties included, but were

not limited to, the victims' crying, the victim's visible distress, and the changes in the

victim's behavior and demeanor. Commonwealth v Walter (supra.) Since the Court ruled




                                             12
the victim was not competent to testify, he was "unavailable" to testify as a witness under

theTYHA.

       The Sixth Amendment to the United States Constitution guarantees that "[i]n all

criminal prosecutions, the accused shall enjoy the right ... to be confronted with the

witnesses against him." U.S. Const., Amendment. VI. This constitutional protection is

known as the Confrontation     Clause. The same protection is also expressly contained

in Article 1, Section 9, of the Pennsylvania Constitution. In landmark case of Crawford v.

Washingion._541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States

Supreme Court rejected the "indicia of reliability" test previously approved in Ohio v.

Roberis._448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), as a violative of the

principles of the Confrontation Clause, and held:

        Where non-testimonial 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.

       Crawford._541 U.S. at 68, 124 S.Ct. 1354.

       Whether a statement is testimonial for purposes of Confrontation Clause analysis

depends on its primary purpose. A statement is testimonial for Confrontation Clause

purposes if made for the purpose of establishing or proving some fact in a criminal

proceeding. Out-of-court statements that qualify as testimonial are not admissible under

the Confrontation Clause unless the witness is unavailable and the defendant had a prior

opportunity to cross examine the witness.




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        In Com. v. Allshouse, 36 A.3d 163 (Pa.), 2012, a four-year-old's statement to

county children and youth services caseworker that her father had caused her infant

brother's injury was deemed non-testimonial, and its admission did not violate

defendant's rights under the Confrontation Clause; statements and actions of caseworker

and four-year-old supported determination that the primary purpose of interview was to

allow caseworker to assess and address what they believed to be an emergency, not to

obtain testimony about a past event for use in a criminal proceeding, and the

circumstances surrounding the interview lacked formality.

        In the present case, relying on the Pennsylvania Supreme Court's decisions in

Com. v Althouse, (surpa.) and In Re N.C. 105 A.3d 1199 (Pa.) 2014, this Court found

that the victim's out of court statements to D.R., L.W. and the Philadelphia Children's

Alliance case worker were 'non-testimonial' in nature and their admission did not violate

the Defendant's rights under the Confrontation Clause of the Sixth Amendment of the US

Constitution or Article 1, Section 9, of the Pennsylvania Constitution. Therefore, the out

of court hearsay statements of the victim given to D.R., L.W. and the Philadelphia

Children's Alliance interviewer, Michelle King, were properly admitted.

   11      ADJUDICATION OF DELINQUENCY

        Under the Juvenile Act, a juvenile proceeding is commenced, by the filing of a

petition alleging that the juvenile has committed delinquent acts. See 42 Pa.C.S.A. §

6321(a)(3). Once a petition has been filed, the juvenile court conducts a hearing at which

evidence on the delinquency petition is heard. In the present case, after finding that the

Defendant committed delinquent acts of Indecent Assault and Indecent Exposure as

charged in the Juvenile Petition, this Court initially placed the Defendant on interim




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probation and ordered treatment for Defendant's problems with sexual behavior along

with prohibiting any unsupervised contact with minor children.

          On January 28, 2014, the Commonwealth requested an adjudication of

delinquency because the Defendant was suspended for being involved in a fight at school

which demonstrated his need for continued treatment. At this time, the Court was made

aware that the Defendant was being supervised by his aunt, his mother's 24 year old

sister. After further questioning of the Probation Officer and Defendant's mother, the

Court found out that the Defendant was not being properly supervised by an adult at all

times including, but not limited to, at school and traveling to and from school on a daily

basis. Pursuant 42 Pa.C.S.A. § 634l(b), this Court found the Defendant had been

permitted to violate its initial dispositional order and he was in need of further treatment

and intensive supervision to ensure that there was no unsupervised contact with minors.

The Court entered an order adjudicating the juvenile delinquent finding that the

Defendant needed more intensive supervision than his mother was willing or able to

provide for him. In order to protect the public and to provide the Defendant with needed

programs of supervision, care and rehabilitation, the Defendant was referred to J.J. Peters

Institute (JJPI), a non-profit mental health agency, to provide intensive treatment services

for individuals, such as the Defendant, that have sexual behavior problems.

CONCLUSION


          This Court believes that the Defendant's request for relief on appeal should be

denied.                                       BY



April 24, 2015


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