J. S08023/17


NON-PRECEDENTIAL DECISION -- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
SHAUN MICHAEL HOWARD,                   :          No. 769 WDA 2016
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, April 29, 2016,
              in the Court of Common Pleas of McKean County
             Criminal Division at No. CP-42-CR-0000591-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 07, 2017

      Shaun Michael Howard appeals from the April 29, 2016 judgment of

sentence entered in the Court of Common Pleas of McKean County after a

jury convicted him of 7 counts each of rape by forcible compulsion, rape of a

child, involuntary deviate sexual intercourse by force, involuntary deviate

sexual intercourse with a child less than 13 years of age, and incest of minor

-- child is less than 13; 4 counts of aggravated indecent assault of a child

less than 13 years of age; 12 counts of indecent assault -- victim less than

13 years of age; 8 counts of indecent exposure; and 1 count each of

endangering welfare of children and corruption of minors -- sexual nature.1




1
  18 Pa.C.S.A. §§ 3121(a)(1), 3123(c), 3123(b), 4302(b)(1), 3125(b),
3126(a)(7), 3127(a), 4304(a)(1), and 6301(a)(1)(ii), respectively.
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The trial court sentenced appellant to an aggregate term of incarceration of

45 to 104 years. We affirm.

      The record reflects that appellant’s convictions resulted from various

sexual assaults that he inflicted upon his then 11-year-old daughter.     The

record further reveals that following imposition of sentence, appellant did

not file post-sentence motions. On May 24, 2016, however, appellant filed a

timely notice of appeal to this court.    Appellant then timely complied with

the trial court’s order to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).           The trial court then filed a

“1925(a) statement” wherein it incorporated its September 15, 2015 opinion

and order2 concerning certain evidentiary rulings that appellant now

challenges.

      Appellant raises the following issues:

              I.    Did the court commit error in admitting the
                    testimony of the [sexual assault nurse
                    examiner (“SANE nurse”)] when the hearsay
                    testimony was unreliable; alternatively[,] when
                    the testimony violated the confrontation clause
                    of the constitution?

              II.   Did the court error [sic] in admitting the letter
                    of     [the    victim]     because     it    was
                    unrelieable [sic][;] alternatively[,] when it
                    violated the right to confrontation of
                    [appellant]?


2
   We note that although the trial court incorporated its “September 19,
2015” order and opinion, the record reflects that the order and opinion which
it incorporated in its “1925(a) statement” were docketed on September 15,
2015.


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Appellant’s brief at 2 (capitalization in original omitted).

      In his first issue, appellant contends that the victim’s statements to

Cheryl Wier, the SANE nurse who examined the victim (“Nurse Wier”), were

testimonial in nature and, therefore, inadmissible under the Confrontation

Clause of the Sixth Amendment of the United States Constitution.

                  The Sixth Amendment’s Confrontation Clause
            provides that, “[i]n all criminal prosecutions, the
            accused shall enjoy the right . . . to be confronted
            with the witnesses against him.” We have held that
            this bedrock procedural guarantee applies to both
            federal and state prosecutions. Pointer v. Texas,
            380 U.S. 400, 406, 85 S. Ct. 1065, 13 L.Ed.2d 923
            (1965).

Crawford v. Washington, 541 U.S. 36, 42 (2004).

      “[T]he Confrontation Clause prohibits the admission of testimonial

hearsay against a criminal defendant, regardless of whether the statements

are deemed reliable by the trial court, unless the declarant is unavailable to

testify and the defendant had a previous opportunity to cross-examine the

witness.” In re N.C., 105 A.3d 1199, 1215 (Pa. 2014).

            [I]n analyzing whether a statement is testimonial,
            and, therefore, subject to the protections of the
            Confrontation     Clause     under    Crawford    [v.
            Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158
            L.Ed.2d 177 (2004)], a court must determine
            whether the primary purpose of the interrogation
            was to establish or prove past events relevant to a
            later criminal prosecution.          In making the
            determination as to the primary purpose of an
            interrogation, a court first should determine whether
            the interrogation occurred during the existence of an
            ongoing emergency, or what was perceived to be an
            ongoing emergency. Although the existence—actual


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            or perceived—of an ongoing emergency is one of the
            most important factors, this factor is not dispositive
            because there may be other circumstances, outside
            of an ongoing emergency, where a statement is
            obtained for a purpose other than for later use in
            criminal proceedings. In determining the primary
            purpose of an interrogation, a court must also
            objectively evaluate the circumstances surrounding
            the interrogation, including the formality and
            location, and the statements and actions of both the
            interrogator and the declarant.

Commonwealth v. Allshouse, 36 A.3d 163, 175-176 (Pa. 2012), cert.

denied, 133 S.Ct. 2336, 185 L.Ed.2d 1063 (2013).         Although the United

States Supreme Court has declined to adopt a categorical rule excluding

statements to individuals who are not law-enforcement officers from the

Sixth Amendment’s reach, it nevertheless recognizes that such statements

are much less likely to be testimonial than statements made to law-

enforcement officers.   Ohio v. Clark, 135 S.Ct. 2173, 2181, 192 L.Ed.2d

306, 315 (2015).

     With respect to our standard and scope of review, “[w]hether

[a]ppellant was denied [his] right to confront a witness under the

[C]onfrontation [C]lause of the Sixth Amendment is a question of law for

which our standard of review is de novo and our scope of review is

plenary.”   Commonwealth v. Yohe, 39 A.3d 381, 384 (Pa.Super. 2012),

affirmed, 79 A.3d 520 (Pa. 2013), cert. denied, 134 S.Ct. 2662, 189

L.Ed.2d 209 (2014) (citations omitted).




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        Preliminarily, we note that the record reflects that the parties

stipulated that the victim was unavailable to testify.   (Notes of testimony,

8/5/15 at 6.) We further note that although the certified record before us is

silent as to whether appellant had the previous opportunity to cross-examine

the victim, appellant fails to advance any argument that he was denied such

opportunity. Appellant’s complaint is that because the SANE exam was not

conducted during the existence of an emergency and because its primary

purpose was to gather evidence, the victim’s statements to Nurse Wier were

testimonial in nature and, therefore, inadmissible under the Confrontation

Clause.

        The record reflects that on August 10, 2014, while the victim was in

the kitchen with her mother, N.P., the victim “blurt[ed]” out that she had

something to tell her mother and then stated that “[h]er daddy was touching

her.”     (Notes of testimony, 8/5/15 at 7, 10.)     N.P. testified that she

“instantly dropped,” “started to cry,” and “didn’t know what to think” when

her daughter told her that. (Id. at 8.) When N.P. asked the victim where

appellant was touching her, the child would not answer.      (Id.)   N.P. then

telephoned her friend Tiffany Lasher, who was at work, and told Ms. Lasher

what the victim had told her.3 (Id. at 8, 30.)




3
  The record is unclear as to whether N.P. telephoned Ms. Lasher on the day
that the victim made the statements to N.P. or whether she telephoned
Ms. Lasher the following day.


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        As soon as Ms. Lasher finished working that day, she went to

N.P.’s home, picked up the victim, and took her to her home in order to

remove the child from a potentially sexually abusive environment. (Id. at

30-31.) Ms. Lasher testified that she did not ask the victim any questions

about what the victim had told her mother until August 13, 2014. (Id. at

31.) On that day, Ms. Lasher and M.B., the child’s paternal aunt, asked the

victim “what was going on.” (Id.) The victim responded that her “[d]addy

was touching her everywhere.” (Id.) When the two women told the child

that she needed to be more specific, the child pointed towards her vagina

and anus and said that “he was touching her there.” (Id. at 32.) The victim

also told the two women that appellant “place[d] his penis in her mouth.”

(Id.)    Ms. Lasher testified that during this conversation, the victim was

crying and upset.    (Id.)   Ms. Lasher then telephoned the victim’s mother,

N.P., to tell her what the victim had revealed.       (Id. at 33.)    Within

15 minutes, N.P. arrived at Ms. Lasher’s home, and then N.P., Ms. Lasher,

and M.B. took the victim to the emergency room at Bradford Regional

Medical Center. (Id.)

        Nurse Wier testified that when she met with the victim in the

emergency room, she met with her alone, and no law enforcement was

present. (Id. at 42.) Nurse Wier further testified that the purpose of her

conversation with the victim was “[f]or a medical exam related to sexual

assault.”   (Id.)   She explained that the questions that she posed to the



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victim were part of a “medical exam [] for the health and welfare of the

patient.”   (Id. at 44.)        She acknowledged her understanding of the

difference between a medical exam and a forensic exam, explaining that

police initiate forensic examinations.    (Id. at 44-45.)     Nurse Wier further

testified that the “whole purpose of the medical exam” is for the “evaluation

and treatment of any patient.”       (Id. at 45.)    She also explained that a

patient’s answers to the questions she poses guide the exam.          (Id.)   For

example, Nurse Wier stated that she asks sexual assault victims whether

and into what orifice an accused ejaculated because the answer to that

question determines whether and where the victim would need to be

checked for sexually transmitted diseases.          (Id.)    Nurse Wier further

testified that prior to examining the victim in this case, she had not

determined whether she would call police. (Id. at 46.)

      With respect to her examination of the victim, Nurse Wier testified that

when she asked the victim why the victim thought she was being seen, the

child stated, “Because my dad is touching me.”              (Id. at 43.)   When

Nurse Wier asked the victim where her father was touching her, the child

“gestured toward her chest and genital area.” (Id.) When asked whether

appellant touched her with his hands and/or with his penis, the child nodded

affirmatively.   (Id. at 44.)    When asked if appellant touched her with his

mouth, the child nodded “no.” (Id.) When asked if appellant put his penis

in the child’s mouth, the victim nodded “yes.”          (Id.)   The victim also



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acknowledged that appellant had ejaculated in her mouth and penetrated

her anus with his penis. (Id.)

     Here, appellant claims that the victim’s SANE exam was not part of an

ongoing emergency because “she did not visit the hospital for her

examination until three days after disclosing the alleged abuse to her

mother” and because “[t]here was no threat to the safety of [the victim]

when she was at the hospital and the preliminary observation determined

that [she] was not experiencing any trauma.”      (Appellant’s brief at 13.)

Appellant is mistaken.

     The record reflects that the victim initially told her mother that

appellant had been touching her. At that point, the victim would not reveal

any further information about the sexual assaults.   The victim’s disclosure

that appellant had been touching her, however, resulted in the victim’s

immediate removal from the family home in order to prevent future sexual

assaults at the hands of appellant.   It was not until three days after the

victim’s removal from the family home that she revealed to Ms. Lasher and

M.B. some of the details of the sexual assaults that appellant had inflicted

upon her.   The victim’s revelations of the details of these sexual assaults

constituted a then-present emergency of suspected child sexual abuse and

prompted the victim’s mother, Ms. Lasher, and the victim’s aunt to

immediately take the victim to the emergency room for a sexual assault

examination to determine, among other things, whether the victim sustained



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internal injury and/or contracted sexually transmitted diseases. Therefore,

appellant’s claim that no emergency existed at the time of the victim’s

SANE exam because three days had gone by since she revealed to her

mother that “daddy was touching her” entirely lacks merit.

      Appellant further contends that the victim’s statements to Nurse Wier

were testimonial in nature because “the purpose of a SANE exam is to

gather evidence.”     (Appellant’s brief at 13.)     Appellant advances no

argument to support that contention; rather, appellant baldly asserts that

Nurse Wier’s testimony that the purpose of the exam is for medical

treatment was “pre-textual in nature.”     (Id.)   Our review of the record

demonstrates that Nurse Wier clearly and unequivocally testified that the

purpose of the SANE exam was to medically treat an 11-year-old child who

was potentially a sexual-assault victim. Therefore, appellant’s claim that the

statements that the victim made to Nurse Wier were inadmissible under the

Confrontation Clause lacks merit.

      Appellant next contends that the trial court erred in admitting

Nurse Wier’s testimony concerning statements that the victim made to her

during the SANE exam because “[the victim’s] statements to [Nurse Wier]

were not reliable enough to be admissible under the [tender years hearsay

exception].” (Appellant’s brief at 14.)

      In reviewing the admissibility of evidence, “an appellate court may

only reverse upon a showing that the trial court abused its discretion. An



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abuse of discretion is not a mere error in judgment but, rather, involves

bias,    ill   will,     partiality,   prejudice,       manifest   unreasonableness,    or

misapplication of law.”              Commonwealth v. Cox, 115 A.3d 333, 336

(Pa.Super. 2015) (citations omitted).

        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.

        The Tender Years Act, 42 Pa.C.S.A § 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 for the admissibility of certain statements

that otherwise may be considered hearsay, 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, describing any of the offenses
                         enumerated in 18 Pa.C.S. [§ 31 (relating to
                         sexual 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



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                        statement provide sufficient indicia
                        of reliability; and

                  (2)   the child either:

                        (i)    testifies    at        the
                               proceeding; or

                        (ii)   is unavailable    as    a
                               witness.[4]

42 Pa.C.S.A. § 5985.1(a).

      “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 the tender years exception must possess sufficient indicia of

reliability, as determined from the time, content, and circumstances of its

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

(citation omitted).   The standard for determining whether the statements

possess the required indicia of reliability was set forth in Idaho v. Wright,

497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).          Obvious factors

tending to demonstrate reliability include:           (1) the spontaneity and

consistent repetition of the statements; (2) the mental state of the

declarant; (3) the use of terminology unexpected in a child of similar age;




4
  As previously noted, the record reflects that the parties stipulated that the
victim was unavailable to testify. (Notes of testimony, 8/5/15 at 6.)


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and (4) the lack of a motive to fabricate. Commonwealth v. Walter, 93

A.3d 442, 451 (Pa. 2014).

      Preliminarily, we note that because the Crawford Court rejected the

“indicia of reliability” standard where a witness is deemed unavailable, we

are first required to determine whether the statements are testimonial or

non-testimonial in nature before determining their reliability under the

tender years exception. See N.C., 105 A.3d at 1208-1209. For the reasons

set forth above, we have found that the statements were not testimonial in

nature. Therefore, we may proceed to the reliability determination.

      Appellant claims that the statements were unreliable and, therefore,

inadmissible because “[the victim] was very reluctant to speak about the

alleged abuse[, and she] would avoid eye contact and would mostly respond

with nonverbal gestures, such as pointing and nodding[.]” (Appellant’s brief

at 14.)   Appellant further contends that the statements lacked reliability

because the victim “had been subject to frequent questioning by [her aunt,

M.B.,] and only disclosed details of the ‘touching’ when pressed.” (Id.) The

record belies appellant’s claims.

      The record demonstrates that the victim spontaneously disclosed the

sexual abuse inflicted upon her by appellant when she “blurted” out to her

mother that she had something to tell her mother, immediately followed by

the revelation that appellant had been touching her.       Additionally, the

statements that the victim made to Ms. Lasher and her aunt, M.B., were



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consistent with what she had told her mother. Further, the statements that

the victim made to Nurse Wier were consistent with the statements that she

had made to Ms. Lasher and M.B.             As for the victim’s mental state,

Nurse Wier described the victim as “very anxious,” “quiet,” “withdrawn,” and

“nervous.”    (Notes of testimony, 8/5/15 at 44.)         That, coupled with the

victim’s reluctance to speak about the abuse, her avoidance of eye contact,

and her use of nonverbal gestures demonstrates the 11-year-old victim’s

fragility, not her unreliability. Moreover, nothing in the record reveals that

the victim used terminology unexpected of a child her age. Finally, nothing

in the record supports the conclusion that the victim had a motive to lie. In

fact, the record demonstrates that at the time of the tender years hearing,

the victim “still love[d] her dad.” (Id. at 10.) Therefore, because the record

demonstrates that the statements the victim made to Nurse Wier possessed

sufficient indicia of reliability, the trial court properly exercised its discretion

in admitting those statements into evidence.

      In his second issue on appeal, appellant complains that the trial court

erred in admitting into evidence a letter that the victim wrote to her aunt,

M.B., in June 2015 because it was testimonial in nature and, therefore,

protected by the Confrontation Clause or, alternatively, unreliable and,

therefore, inadmissible under the tender years exception.             Once again,

appellant is mistaken.




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     The record reflects that the victim wrote the letter to her aunt, M.B.,

on June 11, 2015. (Notes of testimony, 12/17/15 at 6, and Commonwealth

Exhibit 1.) The record further reveals that between the time that the victim

revealed the sexual abuse to her mother and others in August 2014 and the

time that she wrote this letter to her aunt in June 2015, the victim was

withdrawn and refused to speak about the sexual abuse with anyone,

including her counselor at Children & Youth Services (“CYS”) and her aunt,

M.B., with whom she was then living. M.B. explained:

           . . . I tried to talk to her, like, every other day or so,
           couple days a week, whatever trying to get her to
           talk to the counselor, you know, CYS or whatever.
           She wouldn’t even talk to me anymore. So, on that
           day, I was like, you know, I was trying to get her to
           talk to me again, you know, I was, like, I just want
           to know the truth. You got to talk to me. You got to
           talk to somebody, anybody.               Write it down,
           whatever. And at that time, my husband had called
           and I, you know, he asked me what I was doing, and
           I had said I was trying to talk to [the victim], trying
           to get her to talk to me again, and she won’t talk to
           me, she won’t talk to CYS, she won’t talk to
           anybody. She -- I just -- I don’t know what else to
           do. I said she won’t write it down or anything like
           that, so at that point, she’s like, “Oh, I’ll write it
           down.” So, I went and got her a notepad and a pen
           and -- and I continued to be on my -- on my phone
           with my husband at that time.

Notes of testimony, 1/17/15 at 6-7.

     Additionally, it is relevant to the Confrontation Clause determination

that the victim wrote the letter for and to her aunt and not for and to law

enforcement or the Commonwealth.             See Clark, 135 S.Ct. at 2182



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(reiterating that “[c]ourts must evaluate challenged statements in context,

and part of that context is the questioner’s identity” (citation omitted)).

“Statements made to someone who is not principally charged with

uncovering and prosecuting criminal behavior are significantly less likely to

be testimonial than statements given to law enforcement officers.”         Id.

(citation omitted).   Here, no doubt exists that the relationship between a

niece and her aunt is far different than the relationship between a citizen

and a law enforcement officer. Additionally, even though M.B. testified that

she knew that the letter would ultimately be given to police (notes of

testimony, 12/17/15 at 13), the record clearly demonstrates that M.B.’s first

objective in having the victim write the letter was to get the victim to open

up about the sexual abuse that appellant had inflicted upon her. Notably,

M.B. testified that she herself was the victim of childhood sexual abuse and,

therefore, she knows the importance of “get[ting] it out and open.” (Id. at

17.) Because the record clearly demonstrates that the primary purpose of

the writing was to get the victim to open up about the sexual abuse that she

had suffered and not to create a record for trial, the letter falls outside the

scope of Confrontation Clause protection.

      Finally, appellant contends that the letter lacked reliability and was,

therefore, inadmissible under the tender years exception because “[t]he

letter used language that [the victim] had not used before[,] [t]he letter

contained much more explicit descriptions of body parts and actions than



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any of her previous statements,” and “the evidence clearly suggests that

[M.B.] played a major influence in the drafting of the letter.” (Appellant’s

brief at 15-16.)   Having made the determination that the letter was not

testimonial in nature, we may now address appellant’s unreliability claim.

      The record demonstrates that the victim voluntarily wrote the letter.

The record further shows that the victim had severe difficulty communicating

in the spoken word. Our review of the words the victim used in the letter to

describe male genitalia and certain sex acts are consistent with the words a

12-year-old girl would choose. Additionally, although the description of the

sexual assaults set forth in the letter is more detailed than what Nurse Wier

testified to, what the victim wrote in the letter is consistent with the

statements she made to Nurse Wier, Ms. Lasher, and M.B. concerning the

oral and anal sex that appellant subjected her to. The record supports the

trial court’s conclusion that “[there is] nothing about the circumstances that

would make the reliability questionable.” (Notes of testimony, 12/17/15 at

31.) Accordingly, the trial court properly exercised its discretion in admitting

the letter into evidence under the tender years exception.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/7/2017




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