J-S47026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

GUY EDWARD YEAGER

                            Appellant                   No. 2086 MDA 2015


           Appeal from the Judgment of Sentence November 2, 2015
               In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000918-2014


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED AUGUST 09, 2016

        Appellant Guy Edward Yeager appeals from the judgment of sentence

entered in the Franklin County Court of Common Pleas following his jury trial

conviction for three counts of involuntary deviate sexual intercourse (“IDSI”)

with a child, and one count each of corruption of minors and indecent assault

of a child.1 We affirm.

        On December 6, 2013, Franklin County Children and Youth Services

were notified of allegations that Appellant sexually assaulted his nephew

(“Victim”). N.T., 5/18/2015, at 162. On January 9, 2014, CYS caseworker

Nicholas Ranney interviewed Victim.            Id. at 166-68.   Detective Travis

Carbaugh of the Waynesboro Police Department was present.           Id. at 168.

____________________________________________


1
    18 Pa.C.S. § 3123(b), 6301(a)(1)(ii), and 3126(a)(7), respectively.
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During the interview, which was videotaped, Victim described the sexual

abuse committed by Appellant.              On January 15, 2014, Appellant was

arrested.

       On February 28, 2014, the Commonwealth filed a tender years motion

and a motion for closed-circuit testimony.2          The Commonwealth sought to

introduce statements Victim made to his Mother and statements he made

during the January 9, 2014 interview.            The Commonwealth also requested

permission to allow Victim to testify by contemporaneous alternative method

so that he did not have to testify before Appellant.

       On April 23, 2014, the trial court held a hearing on the motions. At

the hearing, Mr. Ranney and Victim’s mother testified, and Victim testified in

camera. On April 29, 2014, the trial court found Mr. Ranney could testify to

statements Victim made to him on January 9, 2014, but found Mother would

not be permitted to testify regarding statements Victim made to her. The

court also granted the Commonwealth’s motion for closed-circuit testimony.

       On May 19, 2015, a jury found Appellant guilty of three counts of IDSI

of a child, and one count each of corruption of minor and indecent assault of

a child.3    The trial court ordered that the Sexual Offender’s Assessment
____________________________________________


2
 The Commonwealth previously requested a continuance of the preliminary
hearing in order to file the motions, and the request was granted.
3
  Victim testified at trial via closed-circuit television. N.T., 5/18/2015, at 33-
106. The video of Mr. Ranney’s interview of Victim also was played for the
jury during Mr. Ranney’s testimony. Id. at 169.



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Board (“SOAB”) conduct an assessment of Appellant and prepare a report

evaluating whether Appellant met the criteria as a sexually violent predator

(“SVP”).4 On November 2, 2015, the trial court held a hearing, and found

Appellant met the criteria as a SVP.             That same day, the trial court

sentenced Appellant to 25 to 60 years’ imprisonment.5

       Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pennsylvania Rule of Appellate Procedure 1925.6

       Appellant raises the following issue on appeal:

          Did the trial court err or abuse its discretion when it
          granted the Commonwealth’s [t]ender [y]ears [m]otion
          allowing Nicholas Ranney to testify as to hearsay
          statements the alleged victim made to him because the
          time, content and circumstances of the statements did not
          provide sufficient indicia of reliability due to the
          inconsistency of the statements made, the use of
          terminology unexpected of a child of similar age and the
          presence of a motive to fabricate?

Appellant’s Brief at 8.
____________________________________________


4
  In his 1925(b) statement, Appellant also alleged the trial court erred or
abused its discretion when it classified Appellant as a SVP. He, however,
does not challenge the court’s SVP classification in his appellate brief.
Therefore, he has waived this claim. Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”).
5
  The trial court sentenced Appellant to the following consecutive sentences:
96 to 240 months’ imprisonment for each IDSI conviction; 6 to 12 months’
imprisonment for the corruption of a minor conviction; and 6 to 12 months’
imprisonment for the indecent assault conviction.
6
  The trial court’s 1925(a) opinion incorporates its April 29, 2014
memorandum addressing the Commonwealth’s tender years motion.



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      This Court applies the following standard of review for admission of

evidence claims:

      The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.        To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012) (quoting

McManamon v. Washko, 906 A.2d 1259, 1268–1269 (Pa.Super.2006)).

      The Pennsylvania Rules of Evidence define hearsay 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.”    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.” Pa.R.E. 802.

In Pennsylvania, the Tender Years Act, 42 Pa.C.S. § 5985.1, creates an

exception to the hearsay rule for victims of childhood sexual abuse.       See

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 988 (Pa.Super.2007).

      The tender years exception provides:

      (a) General rule.–An out-of-court statement made by a child
      victim or witness, who at the time the statement was made was
      12 years of age or younger, describing any of the offenses
      enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
      homicide), 27 (relating to assault), 29 (relating to kidnapping),
      31 (relating to sexual offenses), 35 (relating to burglary and
      other criminal intrusion) and 37 (relating to robbery), not


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        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.[7]

42 Pa.C.S. § 5985.1. “The tender years exception allows for the admission

of a child’s out-of-court statement because of the fragile nature of young

victims of sexual abuse.” Commonwealth v. Lukowich, 875 A.2d 1169,

1172 (Pa.Super.2005), appeal denied, 885 A.2d 41 (Pa.2005). A statement

admitted under Section 5985.1 must possess sufficient indicia of reliability,

____________________________________________


7
    Pursuant to the Tender Years Act:

           [T]o 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.

42 Pa.C.S. § 5985.1(a.1).




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as determined from the time, content, and circumstances of its making.

Commonwealth v. O’Drain, 829 A.2d 316, 320 (Pa.Super.2003) (citing

Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.Super.2002)). Courts

consider various factors to determine whether the statements are reliable,

including “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. Walter, 93

A.3d 442, 451 (Pa.2014) (quoting Commonwealth v. Delbridge, 855 A.2d

27, 34 n. 8 (Pa.2003)).

      Appellant concedes the statements are relevant, but argues the

statements do not contain sufficient indicia of reliability.

      The trial court found:

         After viewing the video recording of the January 9, 2014
         interview and considering the above[-]enumerated factors,
         the [c]ourt finds that [Victim’s] statements to Nicholas
         Ranney provide sufficient indicia of reliability.        First,
         [Victim] said that he did not know why he was brought in
         for the interview but initially started disclosing information
         about the alleged abuse spontaneously. Ranney asked
         [Victim] if he visits any family members, and [Victim] said
         that he goes to see his grandmother but he is not around
         [Appellant] anymore.        [Victim] said his grandmother
         kicked [Appellant] out of the house for molesting him.
         [Victim] was also consistent in the interview as he did not
         recant any statements and he gave very specific,
         organized details about the alleged incidents.             For
         example, [Victim] explained the orientation of [Appellant’s]
         bedroom. Also, the statements [Victim] said to Ranney
         were consistent with the statements he said to his Mother,
         specifically that the alleged incidents occurred in
         [Appellant’s] bedroom. Also [Appellant] told [Victim] to
         “do what girls do,” and that he “sucked” [Victim’s]

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         “privates.” Second, there is little evidence on [Victim’s]
         mental state when he made the statements, but he
         appeared on the video recording to be unimpaired.
         Additionally, [Victim] said that [Appellant] told him “not to
         let anyone know,” that it was a “secret” between [Victim]
         and [Appellant]. Such statements show sufficient indicia
         of reliability as [Victim] likely feared retribution from
         [Appellant]. See Commonwealth v. Kriner, 915 A.2d
         653, 660 n.3 (Pa.Super.2007) (the child victim “made the
         statements despite [the] fact that she was suffering
         negative consequences as a result of the disclosure.”).
         Third, [Victim] recounted the details of the alleged sexual
         acts which children his age may not be likely to know, but
         in terms a child with actual knowledge of such acts would
         likely use. For example, [Victim] said that [Appellant] put
         his “you know what” into his “rear end” when he “humped”
         him.    [Victim] also said that [Appellant] “sucked” his
         “private,” and “sucked” his “thinger” and “humped” him.
         [Victim] said that [Appellant] told him to “touch his private
         and do what a girl does.” Also, [Appellant] “put a rubbery
         thing on his private,” and when he humped [Victim], his
         “you know what” was inside [Victim’s] “rear end.” [Victim]
         also said that [Appellant] “was an adult and my mom told
         me to listen to any adult.” Fourth, there was no evidence
         presented to show [Victim] had a motive to fabricate. The
         [c]ourt finds the time, content, and circumstances of
         [Victim’s] statements to Nicholas Ranney provide sufficient
         indicia of reliability.

Opinion and Order of Court, filed Apr. 19, 2014, at 7-80.      The trial court

considered the factors and did not abuse its discretion or err in applying the

law.

       Appellant argues that the statements were not spontaneous because

they were influenced by an “external stimulus.” Appellant’s Brief at 14. He

claims Victim stated that Appellant used to work for a carnival “but he got

fired a week later because of molesting children” and that Victim’s

grandmother kicked Appellant out of the house “for molesting me.”         Id.


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Appellant argues Victim would not have first-hand knowledge of Appellant’s

termination of employment or of the reason his Grandmother did not let

Appellant live at her home.        Id. at 15.   Therefore, Appellant argues,

someone told Victim the information, and the statements were not

spontaneous. Id.      However, as the trial court noted, Victim did not know

why he was being interviewed and offered many details about the incidents

of abuse.

       Appellant also maintains that Victim’s use of the term “molested” was

not age-appropriate, and established that someone told Victim what to say.

Appellant’s Brief at 16. However, Appellant fails to establish that a 10-year-

old would not use the term “molested.” Further, even if someone had told

Victim that Appellant had lost his job because he molested someone or told

Victim that Appellant had molested him, Victim described the “molestation”

during the interviewing, using details and age-appropriate terms.

       Appellant next argues that there was no indication during the interview

of when the alleged abuse occurred and that the January 9, 2014 interview

occurred a month after the December 6, 2013 allegation of abuse made to

CYS.    Appellant’s Brief at 17.   Appellant maintains, because of the time

delay, Victim was less likely to accurately remember the incidents.        Id.

However, as noted above, Appellant recalled many details of the incidents,

and was able to relay those details during the interview.

       Appellant also maintains that the presence of Detective Carbaugh, a

police officer, gave Appellant motive to fabricate. Appellant’s Brief at 17-18.

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Appellant provides no support for this contention.   Further, during his

competency examination, Victim stated that he believed he could “get in a

lot of trouble” for lying. N.T., 5/18/2015, at 36.

      The trial court acted within its discretion when it admitted the

statements Victim made during the January 9, 2014 interview pursuant to

the Tender Years Act.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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