J-A18041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAY LEE WALTER, SR.

                        Appellant                   No. 1829 MDA 2010


          Appeal from the Judgment of Sentence November 1, 2010
              In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0000532-2009


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                    FILED SEPTEMBER 09, 2014

      Jay Lee Walter, Sr., appeals from his judgment of sentence, entered in

the Court of Common Pleas of Franklin County, following his conviction by a

jury for rape of a child (under 13), involuntary deviate sexual intercourse

with a child (under 13), indecent assault, endangering the welfare of a child,

and aggravated indecent assault of a child.     The charges stemmed from

events that occurred between October 2006 and October 2008 during which

Walter allegedly had sexual intercourse with his daughter (born November



incarceration and was ultimately determined to be a sexually violent

predator (SVP) pursuant to 42 Pa.C.S. § 9792.       After careful review, we

affirm.
J-A18041-14



       This case has been remanded to this Court from our Supreme Court,

see Commonwealth v. Walter, No. 53 MAP 2012, 2014 Pa. LEXIS 428

(Pa. Feb. 18, 2014), which reversed our previous decision finding the trial

court abused its dis                                       -of-court statements

into evidence pursuant to the Tender Years Hearsay Act (TYHA), 42

Pa.C.S.A. § 5985.1,1
____________________________________________


1
  The TYHA allows statements made by a child victim of sexual assault to be
admitted into evidence, if the statements are relevant and sufficiently
reliable. The statute provides, in relevant part:

       (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 offense), 35 (relating to
       burglary and other criminal intrusion) and 37 (relating to
       robbery), 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.1) 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
(Footnote Continued Next Page)


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J-A18041-14



601 is not a prerequisite to the admission of hearsay statements under the

TYHA. In reaching its decision, the Supreme Court also concluded that the

trial court correctly determined that the instant victim was unavailable as a

witness.2

remaining issues on appeal:3

       (1)   Did the Court err in prohibiting the Defense from having
             the opportunity, as requested, to retain an expert on the
             issues related to the statements allegedly made by the
             victim?

       (2)   Did the Court err in precluding the defense from calling the
             alleged victim as a witness at trial?


                       _______________________
(Footnote Continued)

       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 of any
             other person, such as a person who has dealt with
             the child in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985.1(a), (a.1) (emphasis added).
2
    Specifically, the Supreme Court held that ou


             Walter, 2014 Pa. LEXIS 428, at *35.
3
                                   disposed of by the Supreme Court. See
Walter, 2014 Pa. LEXIS 428, at *35-36 (trial court correctly concluded
victim was unavailable as witness and, therefore, that her out-of-court
statements provided sufficient indicia of reliability so as to be admissible
under TYHA). Therefore, we need not address it on appeal.



                                            -3-
J-A18041-14


      (3)     Did the Court err in precluding the Defense from bringing
              forth at trial testimony of eye-
              interaction with the alleged victim?

      (4)     Did the Court err in precluding the Defense from bringing
              forth at trial the fact that alleged eye-witness [sic] Angel
              Morris has been convicted of a criminal act similar to that
              in which the Defendant was charged?

      (5)
              the Defendant professionally evaluated to determine if he
              was competent to stand trial and/or to withdraw a guilty
              plea tendered?

      (6)     Was the Defendant inappropriately motivated to withdraw
              his plea of guilty by the fact that the Franklin County
              Probation Department refused to release the Defendant on
              pre-trial release pending sentencing?

      (7)



      The Supreme Court aptly summarized the underlying facts of this case

as follows:

      On October 17, 2008, Franklin County Children & Youth Services
      ("CYS") received an anonymous call regarding the welfare of
      A.W. (hereinafter "victim"), the four-year-old daughter of
      Appellee Jay Lee Walter. A CYS caseworker, Leann Briggs,
      asked Appellee and his wife, the victim's mother, to bring the
      victim to the agency, so that Briggs could verify the child's
      safety. During an interview Briggs conducted with the victim, the
      victim indicated that she was afraid of Appellee because of
      "Chuckie," a name she used to refer to Appellee's penis. The
      victim told Briggs that Chuckie moves back and forth on top of
      her, and that Chuckie goes inside of her body, specifically, her
      vagina. The victim also told Briggs that Appellee made the
      victim take her clothes off, lie down, and then forced the family
      dog, "Baby," to lick the victim's vagina. Following Briggs'
      interview, the victim was placed in foster care on an emergency
      basis. Pennsylvania State Police Trooper Courtney Pattillo began
      an investigation, during which time she interviewed various
      witnesses, including Appellee. On October 20, 2008, Appellee
      was charged with rape of a child, two counts of involuntary

                                      -4-
J-A18041-14


     deviate sexual intercourse with a child, indecent assault, and
     endangering the welfare of a child.

     Thereafter, the Commonwealth filed a motion seeking to
     introduce certain statements made by the victim to third parties
     into evidence pursuant to the TYHA.

                                    *      *   *

     At a hearing on January 30, 2009 ("TYHA Hearing"), the
     Commonwealth conducted an in camera evaluation of the victim,
     who by then had turned five. The trial court asked the victim a
     number of questions, including questions regarding her name,
     age, and living arrangements, and she appeared to give
     appropriate answers. However, when the Commonwealth asked
     the victim various questions related to her understanding of
     truth and lies, the victim gave a number of nonsensical or
     bizarre answers.

     The Commonwealth presented the testimony of the CYS
     caseworker, Briggs, as well as testimony by the victim's foster
     mother ("Foster Mother"), with whom the victim had been living
     since October 17, 2008. Foster Mother testified regarding the
     emotional effect court hearings and appearances had on the
     victim; specifically, Foster Mother testified that the victim
     became "very unsettled" and "very emotional" in the days
     following an appearance at the courthouse, and would suffer
     from nightmares for several days after attending court
     proceedings. N.T. Hearing, 1/30/09, at 42. On one occasion,
     immediately after a preparatory session with the prosecutor, the
     victim smeared feces on the walls of the house. Foster Mother
     stated that, in her view, requiring the victim to testify in front of
     Appellee would traumatize the victim.

     Foster Mother also testified regarding an incident that occurred
     at the end of October 2008, shortly after the victim moved in
     with the family. According to Foster Mother, the victim was on
     the toilet and Foster Mother was cleaning up after her when the
     victim suddenly asked, "is there anymore blood?" Id. at 39.
     When Foster Mother asked the victim what she meant, the victim
     replied, "there was blood when Daddy Jay sticks his finger in
     there." Id. Foster Mother recounted another occasion on which
     she was awakened as the victim screamed and ran into Foster
     Mother's bedroom. The victim was crying and shaking and


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J-A18041-14


     stated that she was "afraid that daddy was going to bring
     Chuckie to her room," and that "Chuckie bites." Id. at 40. The
     victim told Foster Mother that "Chuckie is daddy's body's part,"
     and drew a picture which indicated that that "Chuckie" was her
     father's penis. Id.

     The Commonwealth next presented the testimony of Angela
     Morris, a family friend of the Walters. Morris testified that,
     around October 2007, she and her son were at a child's birthday
     party at which the victim was also a guest. During the party,
     the victim grabbed Morris' son's "private part." Id. at 50. When
     Morris confronted the victim about the behavior, the victim
     responded, "it was okay to do that;" "daddy says it's okay;" and
     that she "touch[es] daddy there." Id. at 50-51.

     Diane Bulger, a neighbor and former friend of the family, also
     testified at the TYHA hearing. Bulger testified that, in October
     2008, she went to the Chambersburg Mall with her son, the
     victim, Appellee, and Appellee's wife. Bulger testified that
     Appellee took the victim into the men's bathroom at the mall,
     and when the victim exited the bathroom, she was crying and
     stated, "don't let daddy hurt me down below." Id. at 61.

     Another friend of the family, Rebecca Alkire, testified that, in
     May 2008, while she was babysitting the victim, she was in the
     process of changing the victim's diaper when the victim stated,
     "watch [your] fingers." Id. at 64. Concerned about the
     statement, Alkire later discussed it with the victim's mother, who
     explained that she and Appellee were trying to train the victim to
     use this phrase if someone tried to touch her in her vaginal area.
     Id. Alkire recounted another time, in July or August 2008, when
     the victim was watching cartoons at Alkire's house and Alkire
     tickled the victim. The victim immediately became tense, and
     Alkire asked the victim if anyone had ever touched her. The
     victim replied that her daddy touches her "pussy" with his "dick."
     Id. at 65.

     On February 23, 2009, the trial court entered an order holding
     the victim was competent to testify, but was unavailable as a
     witness because testifying would cause her serious emotional
     distress that would substantially impair her ability to reasonably
     communicate to the jury. Trial Court Order, 2/23/09, at 2. The
     court, however, instructed the parties that the court's finding of
     the victim's competence at the TYHA hearing did not preclude
     Appellee from challenging the child's competency at later stages

                                   -6-
J-A18041-14


     of the proceedings. The court further concluded the statements
     the victim made to the five adult witnesses (Briggs, Foster
     Mother, Bulger, Morris, and Alkire) who testified at the TYHA
     hearing, contained sufficient indicia of reliability to be admissible
     under the TYHA. Finally, the court granted the Commonwealth's
     motion to allow the victim to testify by contemporaneous
     alternative method.

     A preliminary hearing was held on March 31, 2009, before a
     magisterial district judge ("MDJ") and the victim was called to
     testify outside of Appellee's presence. However, following
     questioning of the victim, the MDJ concluded the victim was not,
     in fact, competent to testify because, inter alia, she repeatedly
     stated that it was a "good thing" to tell a lie. N.T. Hearing,
     3/31/09, at 10. Nevertheless, the MDJ proceeded with the
     preliminary hearing, and the prosecutor called the same
     witnesses who previously testified at the TYHA hearing.

     On July 19, 2010, a jury trial commenced, and the trial court
     permitted a defense witness to read into the record the victim's
     testimony from both the TYHA hearing and the preliminary
     hearing. The court also permitted the five adult witnesses to
     testify pursuant to the TYHA regarding the statements made by
     the victim. The jury convicted Appellee of all charges, and the
     trial court sentenced him to an aggregate term of 30 to 60

     evaluation by the Sexual Offender Assessment Board, and,
     ultimately, was determined to be a sexually violent predator.

Walter, 2014 Pa. LEXIS 428, at *1-10.      After   careful   review,   we    affirm

                                                             -reasoned decision

authored by the Honorable Douglas W. Herman.




tainted as a result of improper interview techniques used in prior

proceedings.   Walter hired an expert who prepared a preliminary opinion,




                                     -7-
J-A18041-14




a     comprehensive       evaluation    of     the   child.   However,   when   the

Commonwealth informed the court at a pretrial hearing that it would not call

the child victim or play any interview videos of the victim, the court ruled



that time.4 Moreover, while various adult witnesses did testify in camera to

statements made by the victim regarding the alleged abuse, the defense

nev

coerced into making the relevant statements.              Commonwealth v. Cesar,

911 A.2d 978 (Pa. Super. 2006) (during hearing on competency of child

witness on issue of taint, party alleging taint bears burden of production of

evidence of taint and burden of persuasion to show taint by clear and

convincing evidence). Based on the fact that the court deemed the victim

competent (closer to the time that the actual statements were made to adult

witness as opposed to a later scheduled competency hearing), found an

indicia of reliability5
____________________________________________


4
                                                                                  -

was competent to testify (albeit unavailable under section 5985.1 of the
TYHA).
5
    Specifically, the court found that:
(Footnote Continued Next Page)


                                             -8-
J-A18041-14



produce evidence of any taint, the court correctly ruled that the expert

                                                  y.

      Moreover, the trial court correctly determined that the victim was

unavailable to testify because doing so would result in her suffering serious

emotional    distress      to   the   point      where   she   could   not   reasonably

communicate. See 42 Pa.C.S. § 5985.1(a.1).

compulsory process was not violated. Commonwealth v. Lyons, 833 A.2d

245, 254 (Pa. Super. 2003).

request to call witnesses to testify that they had observed him with the

victim in the past and that he acted appropriately with the victim on many

occasions.     Because the admission of such evidence would constitute



not admissible under Pa.R.E. 404, 405.



                       _______________________
(Footnote Continued)


      [T]he child was particularly likely to be telling the truth when the
      child made the statements in light of their spontaneity and
                                                               state at the
      time of the alleged incidents and at the time the child made the
      statements to the adults, the use of graphic sexual terminology
      and descriptions which is unexpected of a child of similar age,
      and the lack of motive to fabricate or to make false statements
      for the purpose of manipulating situations to her advantage
      insofar as the result of making the statements was removal from
      the only home the child has ever known.

Trial Court Order, 2/23/09, at 2.




                                            -9-
J-A18041-14



      Additionally, the trial court correctly refused to permit Walter to cross-

examine witness, Angela Moore, about her past statutory sexual assault



were relevant with regard to her bias or motive to testify falsely, or that they



convictions were not considered crimen falsi crimes that would be admissible

under Pa.R.E. 609.

                                                                 request   for    a



understandable throughout a hearing held on the issue, he presented no

evidence on the issue of his incompetency other than the fact that he had

mental health issues in the past and was emotional about the recent loss of

his father and the fact that his daughter had been adopted.                    See

Commonwealth v. Chopak, 615 A.2d 696, 700 (Pa. 1992) (regarding

issue of defendant's competence, appellate courts recognize significance of

and give deference to trial judge's determination of competency based upon



      The trial court correctly permitted Walter to withdraw his guilty plea

after an extensive colloquy where Walter indicated that he was innocent and

the   Commonwealth     would   suffer   no    substantial   prejudice   from     the

withdrawal. N.T. Withdraw of Guilty Plea Proceedings, 4/7/2010, at 6-7, 13-

14. See Commonwealth v. Shaffer, 446 A.2d 591, 593 (Pa. 1982) (pre-

sentence requests to withdraw guilty plea should be liberally granted when

                                     - 10 -
J-A18041-14




prejudice;" mere assertion of innocence is "fair and just" reason for

withdrawal). Moreover, because Walter never requested reconsideration of

the plea withdrawal prior to trial, the claim that his decision to withdraw his

plea was uninformed, which is raised for the first time on appeal, is waived.

Pa.R.A.P. 302(a).

       Finally, the trial court properly classified Walter as an SVP6 where a

thirteen-year member of the Sexual Offenders Assessment Board (SOAB)

testified and the evidence clearly showed that Walter suffers from a mental

abnormality (pedophilia) as defined in the Diagnostic and Statistical Manual

of Mental Disorders (DSM-IV), exhibited predatory behavior in this case, and




to make his SVP determination was

fully discussed all of the factors pertaining to Walter and how they were
____________________________________________


6
  A sexually violent predator is defined as a person who has been convicted
of a sexually violent offense as set forth in 42 Pa.C.S. § 9795.1 (relating to
registration) and who is determined to be a sexually violent predator under
42 Pa.C.S. § 9795.4 (relating to assessments) due to a mental abnormality
or personality disorder that makes the person likely to engage in predatory
sexually violent offenses.        See 42 Pa.C.S. § 9792; see also
Commonwealth v. Krouse, 799 A.2d 835, 838 (Pa. Super. 2002) (en
banc). "Mental abnormality" is a congenital or acquired condition of a
person that affects the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission of criminal sexual
acts to a degree that makes the person a menace to the health and safety of
other persons. 42 Pa.C.S. § 9792.



                                          - 11 -
J-A18041-14



relevant to his mental abnormality. See Commonwealth v. Feucht, 955

A.2d 377 (Pa. Super. 2008) (no statutory requirement that all or any

particular number section 9795.4 factors be present or absent to support



                                                                       7



authored by Judge Herman, in the event of further proceedings in the

matter.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




____________________________________________


7
 See Order of Court, 2/24/2009; Opinion and Order, 1/6/2010; and Opinion
sur Pa.R.A.P. 1925(a) and Order of Court, 1/7/2011.



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