J-S48024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN CAINES,                               :
                                               :
                       Appellant               :   No. 1256 EDA 2018

            Appeal from the Judgment of Sentence December 4, 2017
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001295-2016


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 17, 2019

        Appellant, Sean Caines, appeals from the judgment of sentence entered

on December 4, 2017, in the Montgomery County Court of Common Pleas.

We affirm.

        In its opinion, the trial court set forth the relevant facts and procedural

history as follows:

              On December 15, 2015, [K.C. left her children in Appellant’s
        care] while she ran errands. Notes of Testimony (“N.T.”) Apr. 6,
        2018 at 25. The three children were [ages eight, six, and three]
        at the time[.] [The eight-year-old child] was at a friend’s house
        during the incident. [Appellant told K.C.] that he intended to work
        out in the basement and the children could play in the basement
        during that time. Id. at 27. K.C. prepared to leave the home. Id.
        Upon realizing that she forgot insurance paperwork needed for her
        errand, [K.C.] came back into the home and attempted to print
        the document on the printer in [an] upstairs bedroom. Id. at 28.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S48024-19


     [K.C.] encountered difficulty and went to the basement to seek
     [Appellant’s] assistance. Id. When [K.C.] entered the basement,
     she observed [Appellant] sitting on the end of his workout bench
     with [the six-year-old victim (“Child”)] straddling [Appellant’s] lap
     and [Appellant was] moving [Child] up and down on his genitals.
     Id. at 29. [Child’s] arms [were] around [Appellant’s] neck. Id. at
     32. [Appellant’s] legs were spread and he had his hands on
     [Child’s] hips. Id. Both [Appellant] and [Child] were fully clothed.
     Id. at 75, 163. When [Appellant] saw [K.C.], he pushed [Child]
     onto the ground and attempted to [act] as if he and [Child] were
     playing. Id. at 30. [Appellant] remained seated on the end of the
     bench and placed his elbows on his knees in such a way that [K.C.]
     could not see whether or not [Appellant] had an erection. Id. at
     30, 33. [K.C.] asked [Appellant] to print the paper that she had
     difficulty printing[,] and he went upstairs to do so. Id. at 86. After
     printing the paper, [Appellant] returned to the basement to work
     out. Id.

            K.C. and [her] children went upstairs to the family room. Id.
     at 87. [K.C. asked Child] about what [K.C.] had seen. Id. at 36-
     37. [K.C.] asked [Child] what was happening in the basement. Id.
     at 45. [Child] indicated that [Child] had been sitting on
     [Appellant’s]. Id. [Child] indicated that [Appellant] moved [Child]
     up and down on his penis. Id. at 46. [Child] indicated that this had
     also happened “I don’t know, three times, lots and lots of times.”
     Id. [Child] indicated that when [Child] asked [Appellant] why he
     was doing it, [Appellant] said “because if feels good.” Id. [K.C.]
     testified that she had never seen [Child] sit on [Appellant’s] lap in
     that manner before this incident. Id. at 72.

            [K.C.] told [Child] that [Child] had not done anything wrong,
     but what happened to [Child] was wrong. Id. at 46. When
     [Appellant] came out of the basement to take a shower, [K.C.]
     left the home with all three of [the] children and went to a friend’s
     house. Id. at 47. [K.C.] reported the incident to police the next
     day from a hotel. Id. at 52. [Child] was interviewed by Mission
     Kids on December 21, 2015. Id. at 107.

           At trial, [Child] testified that[, while] playing in the
     basement … [Appellant] asked [Child] to come over to him and
     picked [Child] up and rubbed [Child] against his private parts in
     the basement. Id. at 160-161, 163-165. [Child] testified that it
     happened on at least one other occasion in [a] bedroom. Id. at
     168-170. In the bedroom, [Child] asked [Appellant] why he was

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     doing it and he told [Child] that it felt good. Id. at 170. [Child]
     testified [to being] sad and mad as a result of [Appellant’s]
     actions. Id.

            [Appellant] testified in his own defense. He testified that on
     December 15, 2015[,] he was in the basement with two of [the]
     children. N.T., Apr. 7, 2017 at 11. He testified that he was laying
     on his back on his workout bench, stretching before his workout
     when [Child] climbed on to him, which he said was not unusual.
     Id. at 13. He stated that [Child] straddled him as he continued to
     stretch his back. Id. [Appellant asserted t]he second child
     attempted to climb on top of him as well, at which point he sat up
     to begin his workout. Id. He testified that he put his hand under
     [Child’s] butt and bounced [Child] up and down simulating a pony
     ride. Id. at 14. [Appellant] testified that [Child] was seated
     midway on his thighs. Id. at 33. [Appellant] testified that he
     frequently played with [the] children in a physical manner. Id. at
     36. He further testified that he told [Child] that “it feels good”
     weeks prior to the date of the instant offense in relation to where
     [Child] was sitting on his stomach while he was laying on his bed
     with K.C. present in the room. Id. at 48. He stated that he told
     [Child] it did not feel good for [Child] to sit on his stomach, it felt
     good if [Child] sat lower, on his hip area. Id.

            Following a jury trial, [Appellant] was found guilty of one
     count of Indecent Assault-Person under 131, one count of
     Endangering the Welfare of a Child2 and one count of Corruption
     of Minors.3 On December 4, 2017, [the trial court] imposed three,
     concurrent sentences of 11 ½ to 23 months in the county
     correctional facility. [Appellant] filed a post sentence motion and
     supplement thereto, which were denied by Order of March 29,
     2018. This timely appeal followed. By Order of April 30, 2018,
     [Appellant] was directed to produce a statement of errors
     pursuant to Pa. R.A.P. 1925 (b); he has since complied with that
     directive.

           1   18 Pa. C.S.A. § 3126 (a)(7).
           2   18 Pa.C.S.A. § 4304.
           3   18 Pa.C.S.A. § 6301 (a)(1)(ii).

Trial Court Opinion, 11/14/18, at 1-4.




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      On appeal, Appellant presents the following issues for this Court’s

consideration:

      1. Did the trial court err in denying [Appellant’s] Motion to Exclude
      Testimony based on taint?

      2. Did the trial court err in admitting the hearsay statements of
      [Child], where those statements did not meet the requirements of
      the Tender Years exception?

Appellant’s Brief at 6.

      In Appellant’s first issue, he asserts that the trial court erred in denying

his motion to exclude Child’s testimony because that testimony was tainted.

Appellant’s Brief at 20. After review, we disagree.

      It is well settled that the admissibility of evidence is left to the discretion

of the trial court, and the trial court’s determination will not be reversed

absent an abuse of that discretion. Commonwealth v. Leaner, 202 A.3d

749, 773 (Pa. Super. 2019) (citation omitted).           Additionally, a witness’s

competency to testify is within the trial court’s discretion. Commonwealth

v. Davis, 939 A.2d 905, 906-907 (Pa. Super. 2007).

      As a general rule, every person is presumed competent to be a witness.

Commonwealth v. Adams-Smith, 209 A.3d 1011, 1021 (Pa. Super. 2019)

(quoting Commonwealth v. Delbridge, 855 A.2d 27, 39 (Pa. 2003)). As

noted above, Appellant avers that Child’s testimony was tainted. Appellant’s

Brief at 20.     Taint is defined as “the implantation of false memories or

distortion of actual memories through improper and suggestive interview

techniques[.]” Delbridge, 855 A.2d at 30. “[T]aint is a legitimate question

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for examination in cases involving complaints of sexual abuse made by young

children.” Id. at 39.

      This Court has also explained the distinction between credibility and

competency and the burden on a party alleging tainted recall:

            A competency hearing concerns itself with the minimal
            capacity of the witness to communicate, to observe an
            event and accurately recall that observation, and to
            understand the necessity to speak the truth. A
            competency hearing is not concerned with credibility.
            Credibility involves an assessment of whether ... what
            the witness says is true; this is a question for the fact
            finder. An allegation that the child witness’ memory of
            the event has been tainted raises a red flag regarding
            competency, not credibility. Where it can be
            demonstrated that a witness’ memory has been
            affected so that their recall of events may not be
            dependable, Pennsylvania law charges the trial court
            with the responsibility to investigate the legitimacy of
            such an allegation.

      [Delbridge,] 855 A.2d at 40 (emphasis added). Furthermore,

            In order to trigger an investigation of competency on
            the issue of taint, the moving party must show some
            evidence of taint. Once some evidence of taint is
            presented, the competency hearing must be
            expanded to explore this specific question. During the
            hearing the party alleging taint bears the burden of
            production of evidence of taint and the burden of
            persuasion to show taint by clear and convincing
            evidence. Pennsylvania has always maintained that
            since competency is the presumption, the moving
            party must carry the burden of overcoming that
            presumption.

Adams-Smith, 209 A.3d at 1021 (quoting Delbridge, 855 A.2d at 40)

(emphasis added).




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     The trial court addressed Appellant’s first issue as follows:

           Instantly, [Appellant] alleged that [K.C] spoke to [Child] on
     at least two occasions prior to [Child’s] interview at Mission Kids,
     thereby tainting [Child’s] memory of the incident. N.T., Motion to
     Exclude Testimony Based Upon Taint, Apr. 4, 2017 at 9-17.
     [Appellant] also alleged that [K.C.’s] own childhood experience
     influenced the way in which she questioned [Child].4 Id. at 9. The
     [c]ourt allowed [Appellant] to present testimony in an attempt to
     meet his initial burden to show some evidence of taint. The [c]ourt
     also watched the video of [Child’s] interview by a forensic
     interviewer at Mission Kids.

           4 The parties stipulated that when she was a child,
           K.C. was groped by an older child in her
           neighborhood. Id. at 84.

            K.C. testified at the hearing that she spoke to [Child] on two
     occasions before the Mission Kids interview. Id. at 54. She testified
     that on the day of the incident, December 15, 2015, she spoke to
     [Child] upstairs in the master bedroom. Id. at 46. She asked
     [Child] questions in a calm manner, as if everything was normal.
     Id. at 48-49. K.C. did not tell [Child] what she had witnessed when
     she walked down the basement stairs, she only asked [Child] for
     information about what happened. Id. at 49. [Child] hunched up
     and would not make eye contact with [K.C.]. Id. [Child’s]
     demeanor remained more serious than normal throughout the
     conversation. Id. at 49-50. K.C. asked [Child] what happened with
     [Appellant] in the basement. Id. [Child] indicated that [Child was]
     sitting on [Appellant’s] lap. Id. at 55. When asked where on his
     lap, [Child] indicated that [Child was] sitting on [Appellant’s] penis
     and that [Appellant] moved [Child] up and down on his penis. Id.
     K.C. asked [Child] if [Appellant] ever said anything when this was
     happening and [Child] indicated that one time [Child] asked
     [Appellant] why and he said because it feels good. Id. [Child] told
     K.C. that this happened on more than one occasion, “three or four
     times.” Id. K.C. thanked [Child] for speaking with her and they
     went downstairs to watch television. Id. At the end of the
     conversation [Child] and K.C. returned to the living room area
     where the other two children were watching television. Id. at 52.
     K.C. and the children ultimately left the home that evening. Id.
     On December 16, 2015, K.C. gave a statement to the State Police.
     Exhibit DS-1.


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            On the morning of December 19, 2015, [Child] climbed in
     bed with K.C. Id. at 53. K.C. asked Child if they could talk about
     what happened, and [Child] said no, indicating that their stuffed
     animal would hear them. Id. at 56-57. They made earmuffs out of
     a sock for the stuffed animal. Id. at 57. K.C. asked [Child] if
     [Child] sat on [Appellant’s] lap in that manner by choice. Id.
     [Child] said no, that [Appellant] asked [Child] to come sit on him.
     Id. [Child] demonstrated how [Appellant] motions for [Child] to
     come over and sit on his lap. Id. K.C. next asked [Child] if it was
     like when she and [Child] wrestle and [Child] said it was nothing
     like that. Id. at 57-58. She again asked [Child] if [Appellant] said
     anything when this was happening, [Child] indicated that it is
     mostly peace and quiet when it happens but that one time he did
     say he did it because it feels good. Id. at 58. The conversation
     ended at this point. Id. K.C. memorialized the conversation in the
     notes application on her phone and also texted it to herself. Id.;
     Exhibits CS-2, CS-3.

            Joanna Crocetto, the forensic interviewer from Mission Kids
     also testified regarding the protocol that she follows when
     conducting a child interview. Mission Kids interviews are designed
     to minimize the number of times a child has to recount an incident
     of abuse. Id. at 27. At the time of the interview, a case worker
     from the office of children and youth, a detective from the
     Montgomery County Detective bureau, a detective from the
     jurisdiction in which the alleged abuse occurred, and an Assistant
     District Attorney [were] all present for the interview and
     observe[d] the interview in real time via video feed. Id. at 28. Ms.
     Crocetto spoke to K.C. to obtain her consent for the interview, but
     pursuant to Mission Kids policy, she did not obtain any information
     concerning the allegations from K.C. Id. at 31. Once obtaining
     consent from K.C., Ms. Crocetto interviewed [Child] and employed
     Mission Kids protocol for questioning which included, inter alia,
     rapport building with [Child], review of the rules for the interview,
     review of the difference between a truth and a lie, and basic
     questions about family before transitioning into questions about
     the allegations of abuse. Id. at 33-34. The interview itself is
     conducted by asking the child open-ended questions. Id. at 34.
     Ms. Crocetto also stated[:]

           from my experience of interviewing at Mission Kids, ...
           with most kids, they talk about who they’ve talked
           about it with when I ask questions around who have
           you talked about this with in terms of who did you tell

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            or did you tell anyone else. They may also actually
            talk about a certain part of their narrative and say that
            someone told them to say that.

      Id. at 36. [Child] did not make any such statements in [the]
      videotaped interview. Regarding the video, the [c]ourt noted that
      it was clear that [Child] had spoken to [K.C.] prior to the
      interview, but that there was no indication that [Child] had been
      coached in any way. Id. at 109-110.

             Based on the testimony of K.C., K.C.’s statement to police,
      the testimony [of] Joanna Crocetto (Mission Kids Forensic
      Interviewer), and the [c]ourt’s review of the actual interview of
      [Child], the [c]ourt found that [Appellant] did not meet his burden
      of establishing taint by clear and convincing evidence, as would
      warrant the expansion of the competency hearing to question
      [Child] about taint.5 The testimony elicited and the video clearly
      show the consistency in [Child’s] story and did not establish any
      evidence of taint. Therefore, this [c]ourt did not err in denying
      [Appellant’s] motion to exclude [Child’s] testimony because of
      taint.

            5 A competency hearing was conducted prior to
            [Child’s] testimony at trial. N.T., Apr. 6, 2017 at 125-
            140.

Trial Court Opinion, 11/14/18, at 7-10.

      We agree with the trial court’s conclusion. Joanna Crocetto, the forensic

interviewer from Mission Kids, testified concerning her interview with Child

and the method she employs when interviewing a child generally.             N.T.,

4/4/17, at 32-38. Ms. Crocetto discussed her use of open-ended questions to

allow for accurate answers. Id. at 34. The open-ended questions enabled

Child to “own” the answers and to provide detail.        Id.   Additionally, K.C.

testified that although she discussed with Child the events that led to criminal

charges against Appellant, she did not provide Child with an opinion. Id. at


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49. Rather, K.C. testified that she asked Child what occurred in the basement,

an open-ended question, and Child provided the details concerning the times

Appellant touched her in a sexual manner. Id. at 55.

      The trial court also conducted a competency hearing outside the

presence of the jury.     N.T., 4/6/17, at 127-140.       The Assistant District

Attorney, Appellant’s trial counsel, and the trial court asked Child questions.

Child explained the difference between the truth and a lie and knew it was

important to tell the truth. Id. at 130-132.

      The trial court concluded that Child was consistent when recounting

Appellant’s assault, Child was not coached, and there was no taint. Trial Court

Opinion, 11/14/18, at 10. After review, we agree, and we conclude there was

no abuse of discretion in the trial court’s denial of Appellant’s motion to

exclude Child’s testimony based on taint.

      Next, Appellant avers that the trial court abused its discretion in allowing

K.C. to testify about out-of-court statements made by Child. Appellant’s Brief

at 23. Specifically, Appellant asserts that K.C.’s testimony regarding Child’s

statements did not meet the requirements of the tender-years exception to

the rule against hearsay because there were insufficient indicia of reliability.

Id. at 23-24. We conclude that Appellant is entitled to no relief.

      At the outset, we reiterate that the admissibility of evidence is left to

the discretion of the trial court, and the trial court’s determination will not be

disturbed absent an abuse of discretion. Leaner, 202 A.3d at 773. Hearsay


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is defined as “a statement that (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers into evidence

to prove the truth of the matter asserted in the statement.” Commonwealth

v. Golphin, 161 A.3d 1009, 1022-1023 (Pa. Super. 2017) (quoting Pa.R.E.

801(c)). “Hearsay is not admissible except as provided by the Pennsylvania

Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme

Court, or by statute.” Id. at 1023 (quoting Pa.R.E. 802).

       However, 42 Pa.C.S. § 5985.1 created an exception to the prohibition

on hearsay under limited circumstances.            At the time of Appellant’s trial,

Section 5985.1 provided as follows:

       (a) General rule.—An out-of-court statement made by a child
       victim or witness, who at the time the statement was made was
       12 years of age or younger,[1] describing any of the offenses
       enumerated in 18 Pa.C.S. [Chapters 25, 27, 29, 31, 35, and 37],
       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.

____________________________________________


1We reiterate that Child was six year old at the time of the assault. Trial
Court Opinion, 11/14/18, at 1; Criminal Complaint, 2/5/16, at unnumbered 4.




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Golphin, 161 A.3d at 1023 (quoting 42 Pa.C.S. § 5985.1(a)).2

       “A statement admitted under the tender years exception must possess

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

circumstances of its making.” Golphin, 161 A.3d at 1023 (citation omitted).

              The Tender Years Act concerns the admissibility of
              out-of-court statements made by a child victim or
              witness to third parties. The admissibility of this type
              of hearsay is determined by assessing the
              particularized     guarantees      of   trustworthiness
              surrounding the circumstances under which the
              statements were uttered to the person who is
              testifying. To determine whether a child’s out-of-court
              statements are admissible under the Tender Years
              Act, a trial court must assess the relevancy of the
              statements and their reliability in accordance with the
              test enunciated in Idaho v. Wright, 497 U.S. 805,
              110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Although the
              test is not exclusive, the most obvious factors to be
              considered include the spontaneity of the statements,
              consistency in repetition, the mental state of the
              declarant, use of terms unexpected in children of that
              age and the lack of a motive to fabricate.

Id. (quoting Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014)).

       In the case at bar, the trial court addressed Appellant’s claim of error

and discussed the reliability of Child’s statements as follows:

             In determining whether a child’s statement is admissible
       under the [tender years exception], our Superior Court has stated
       that “indicia of reliability include: the spontaneity of the
       statements, consistency in repetition, the mental state of the
       declarant, use of terms unexpected in children of that age and the
       lack of a motive to fabricate.” Commonwealth v. Barnett, 50
____________________________________________


2 Section 5985.1 was amended effective August 27, 2019. The amendments
renumbered the subsections and clauses in Section 5985.1 and expanded the
list of criminal offenses a child-witness could describe under this exception.

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       A.[3]d 176, 183-184 (Pa. Super. 2012) (internal quotation marks
       and citations omitted). Thus, assuming an examination of the
       proposed adult witnesses confirms the reliability of the minor’s
       statements, they are admissible under the Tender Years hearsay
       exception.

              Instantly, the Commonwealth gave notice of its intention to
       introduce hearsay statements of [Child], as required by § 5985.1.
       Having previously heard K.C.’s testimony at the taint hearing, the
       Court allowed K.C. to testify to what [Child] told her moments
       after the incident, when she questioned [Child] in the bedroom as
       outlined above. N.T., Apr. 6, 2017 at 43. The near
       contemporaneous recounting of the story to K.C. on December 15,
       2018, the consistency of [Child’s] story when speaking to [K.C.]
       again on December 19, 20156 and in the Mission Kids interview all
       demonstrate indicia of reliability. Furthermore, the Court found
       [Child] competent to testify[,] and [Child] ultimately testified at
       trial in a manner totally consistent with the statements K.C.
       indicated [Child] made and consistent with the Mission Kids
       interview. Therefore, the [c]ourt did not err in admitting [Child’s]
       hearsay statements.

              6Testimony regarding K.C.’s second conversation with
              [Child] was elicited at the hearing on [Appellant’s]
              Motion to Exclude based on Taint, but the jury did not
              hear testimony regarding this conversation. N.T. Apr.
              6, 2017 at 66-69.

Trial Court Opinion, 11/14/18, at 11-12.

       After review, we discern no abuse of discretion in the trial court allowing

K.C. to testify regarding statements made by Child.3 As discussed above, the

____________________________________________


3The record reveals that Appellant’s counsel objected to K.C. testifying about
what Child said to K.C. following the assault in the basement. N.T., 4/6/17,
at 38. Thus, Appellant’s objection to that portion of K.C.’s testimony was
preserved. See Commonwealth v. Guilford, 861 A.2d 365, 370-372 (Pa.
Super. 2004) (in order to preserve an issue for appellate review, a party must
make a timely and specific objection at trial, otherwise the issue is waived).
However, we agree with the trial court that any challenge Appellant had



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trial court found that Child’s statements were made close in time to the events

at issue, Child recalled the events consistently, and Child’s statements were

not coached. Trial Court Opinion, 11/14/18, at 10. We agree with the trial

court that there were sufficient indicia of reliability to permit K.C.’s testimony

concerning Child’s statements under the tender years exception to the rule

against hearsay. Accordingly, Appellant’s claim fails.

       For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Therefore, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/19




____________________________________________


regarding statements Child made during the interview at Mission Kids was
waived. Trial Court Opinion, 11/14/18, at 10. Appellant’s counsel did not
object when the video of Ms. Crocetto interviewing Child at Mission Kids was
played for the jury. N.T., 4/6/17, at 181.

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