J-S18006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

OSCAR CABAN,

                            Appellant                No. 1208 MDA 2015


             Appeal from the Judgment of Sentence June 17, 2015
             In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0000675-2014


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 04, 2016

       Oscar Caban appeals from the judgment of sentence of six to twenty-

three months imprisonment, a concurrent two year probationary term, and a

consecutive year of probation. The sentence was imposed after a jury

convicted Appellant of two counts of indecent assault and one count of

corruption of a minor. We affirm.

       E.F., the victim, called Appellant Cocoa.1 N.T. Trial, 12/1-3/14, at 43.

Appellant was the step-grandfather of the victim’s twin half-brothers. E.F.,


____________________________________________


1
  E.F.’s nickname for Appellant is spelled as Cocoa in the trial transcript and
Coco in the transcript of a competency hearing and affidavit of probable
cause for Appellant’s arrest. We will utilize the spelling that appeared in the
trial transcript.

*
    Retired Senior Judge assigned to the Superior Court.
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who was eight years old at the time of trial, told the jury that, when she was

being babysat by Appellant and his wife, Shirley, Appellant “touched bad

body parts of mine” while they were in the computer room. Id. at 45. E.F.

said that she and Appellant were alone in that room with the door slightly

ajar and were playing a game on the computer when the conduct occurred.

E.F. delineated that, by bad body parts, she meant “[w]here you go to the

bathroom” as well as your “chest” and your “butt.” Id. at 47, 54.

      The victim reported that she was wearing a shirt and leggings at the

time and then delineated that Appellant, “put his hand up my shirt and

touched my body part,” and that he also touched “[w]here I go to the

bathroom” by placing his hand underneath her leggings. Id. at 48, 54. The

girl specified that Appellant was touching her skin and moved his hand

“down and touched” where she urinates.       Id.   55. Appellant then rubbed

her stomach. When Shirley indicated lunch was ready, Appellant ceased his

actions. The abuse occurred for fifteen to twenty minutes. The victim was

angry, disgusted, and scared by Appellant’s activities.

      Although E.F. could not remember when the incident occurred, J.W.,

E.F.’s mother, explained that it was around August 6, 2013, when E.F. was

six years old. J.W. testified to the following. Appellant and his wife Shirley

babysat E.F. and J.W.’s twin sons while J.W. was at work. In August 2013,

J.W. was separated from E.F.’s father. E.F. had been at Appellant’s house

on a Thursday, and then went to her father’s house for his period of

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custodial visitation.   The following Tuesday night, before E.F. was due to

return to Appellant’s house to be babysat, E.F. told J.W. “she was

uncomfortable returning to [Appellant and Shirley’s] home to be baby-sat

while I worked.” Id. at 95-96. J.W. again told her daughter that they would

discuss it in the morning. J.W. said that E.F. then “woke up in the middle of

the night and again told me that she did not want to go back there.” Id. at

97. J.W. said that they would talk about it in the morning. J.W. testified

that, when E.F. “woke up the next morning, she again told me that she did

not want to go there. And at this time with her persistence, I thought it was

very abnormal, so I asked her why.” Id. at 98.

      E.F. responded, “Cocoa had touched her stomach.”             Id.   When J.W.

asked E.F. what she meant, E.F. said that she was embarrassed to talk

about it.    J.W. informed her daughter, “[Y]ou don't have anything to be

embarrassed about.        It's just you and mommy here, and you can talk to

mommy about anything.”           Id. at 98-99.   Then, E.F. “leaned back on the

couch, and she took her hand and put it down her pants and touched her

vagina and said he went like this.” Id. at 99.

      J.W.    contacted    the    Pennsylvania   ChildLine   and    scheduled   an

appointment for E.F. with the Pinnacle Health Children's Resource Center in

Harrisburg. Megan Leader, who had specialized training in questioning child

abuse victims, interviewed E.F. on August 13, 2013.            The tape of that

interview was played to the jury. While the transcript of the interview is not

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contained in the certified record, the affidavit of probable cause for

Appellant’s arrest indicates that E.F. “freely spoke and communicated in a

clear and understandable voice.” Affidavit of Probable Cause, 1/23/14, at 1.

When asked “what has happened,” E.F. responded that Cocoa touched “my

privates.”    Id.   E.F. additionally related that “she had her clothes on but

Coco[a]’s bare skin touched her vagina underneath her clothes.         She also

advised Cocoa “touched her buttocks one time and he touched her breast”

by moving his “hand in a circular motion.”          Id.    E.F. was shown an

anatomical drawing and “was able to accurately identify her private parts as

her vaginal area, buttocks, and breasts.” Id. E.F. also told Ms. Leader that

“when Coco[a] touched her that she felt scared. She also related when he

touched her privates it felt weird.” Id.

       Pennsylvania State Trooper Steven Nesbit, a member of the criminal

investigation unit2 of the Troop H Carlisle Barracks, also testified on behalf of

the Commonwealth.          He was contacted by Children and Youth Services

about E.F.’s allegations, and he met with E.F. and her parents as well as

members of the Pinnacle Health Children's Resource Center. He was present

when the August 13, 2013 interview was conducted, and went to meet with



____________________________________________


2
  A criminal investigator with the Pennsylvania State Police has specialized
investigative training and is the equivalent of a detective.



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Appellant to discuss the accusations leveled by E.F. Appellant and Shirley

allowed him into their home, where there was a computer room.

      Appellant agreed to speak with Trooper Nesbit about E.F.        Trooper

Nesbit informed Appellant that E.F. had accused Appellant of touching her

and Appellant “immediately said, well then, I could have accidentally

touched her.” Id. at 131. Appellant explained that he held the children in

his lap while they were on the computer and that he could have accidently

touched her chest while E.F. was falling off his lap.   Appellant repeatedly

denied placing his hand on E.F.’s vagina but admitted to being alone in the

computer room with her.

      Based upon this evidence, the jury convicted Appellant of unlawful

contact with a minor under age sixteen with the perpetrator more than four

years older, two counts of indecent assault, and corruption of a minor. The

case proceeded to sentencing on April 7, 2015, when Appellant was given an

aggregate sentence of ten to twenty-three months imprisonment on the

unlawful contact offense, a concurrent term of six to twelve months in jail on

one count of indecent assault, a concurrent two years of probation on the

other indecent contact offense, and one year of probation on the corruption-

of-a-minor charge that was imposed consecutively to the other sentences.

Thereafter, Appellant filed a post-sentence motion, and the trial court

accorded Appellant partial relief.   Specifically, the trial court granted a

judgment of acquittal as to the offense of unlawful contact and vacated the

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sentence imposed thereon, which reduced Appellant’s jail term to six to

twenty-three months. This appeal followed. Appellant raises five issues for

our review.

      A. Whether the evidence in this matter was sufficient to sustain
      the verdict.

      B. Whether the Trial Court committed an error of law and fact
      when it failed to grant [Appellant’s] request for judgment of
      acquittal even though the evidence was insufficient for a finder-
      of-fact to have concluded that [Appellant] committed the alleged
      crimes.

      C. Whether the Trial Court abused its discretion when it failed to
      grant [Appellant’s] judgment of acquittal even though the
      adjudication was against the weight of the evidence.

      D. Whether the Trial Court, by Order of the Honorable Edward
      E. Guido, committed an error of law and fact when it determined
      E.F. to be competent to testify at trial.

      E. Whether the Trial Court, by Order of the Honorable Edward E.
      Guido, committed reversible error when it failed to permit trial
      counsel, over the Commonwealth’s objection as to relevancy, to
      question E.F. regarding E.F.’s ability to perceive, remember, and
      appropriately communicate regarding the events in question.

Appellant’s brief at 7.   While this statement indicates that five issues are

raised, in the body of his brief, Appellant advances only three. He combines

argument on questions A and B as well as on issues D and E.                See

Appellant’s brief at 14-17, 20-25.   Hence, we will address Appellant’ first

and second claims together, both of which challenge the sufficiency of the

evidence supporting his convictions, and we utilize the following principles:

         The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in

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     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying [the above] test,
     we may not weigh the evidence and substitute our judgment for
     the fact-finder. In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant's guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence. Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] of fact while passing upon the credibility of witnesses
     and the weight of the evidence produced, is free to believe all,
     part or none of the evidence.

Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (citation

omitted).

     Appellant was convicted of indecent assault pursuant to 18 Pa.C.S. §

3126(a)(7) and (8):

     A person is guilty of indecent assault if the person has indecent
     contact with the complainant, causes the complainant to have
     indecent contact with the person or intentionally causes the
     complainant to come into contact with seminal fluid, urine or
     feces for the purpose of arousing sexual desire in the person or
     the complainant and:

     ....

     (7) the complainant is less than 13 years of age; or

     (8) the complainant is less than 16 years of age and the person
     is four or more years older than the complainant and the
     complainant and the person are not married to each other.




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18 Pa.C.S. § 3126(a)(7), (8). Indecent contact is defined as “[a]ny touching

of the sexual or other intimate parts of the person for the purpose of

arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

      Corruption of a minor occurs whenever a person, “being of the age of

18 years and upwards, by any act corrupts or tends to corrupt the morals of

any minor less than 18 years of age[.]” 18 Pa.C.S. § 6301(a)(1) “Actions

that tend to corrupt the morals of a minor are those that ‘would offend the

common sense of the community and the sense of decency, propriety and

morality which most people entertain.’” Commonwealth v. Snyder, 870

A.2d 336, 351 (Pa.Super. 2005) (partially quoting Commonwealth v.

DeWalt, 752 A.2d 915, 918 (Pa.Super. 2000)).

      Herein, the evidence established that the victim was six when

Appellant, who was approximately sixty years old, touched the victim’s

vagina and breasts for about fifteen minutes while they were playing a

computer game. Given the nature of the conduct, it could serve no purpose

other than sexual arousal. Hence, that evidence was sufficient to sustain the

convictions for indecent assault.   Touching the vagina and rubbing the

breasts of a six-year-old child offends the common sense of the community

and the sense of decency and morality that most people entertain.          We

therefore conclude that the evidence also sufficiently supported the offense

of corruption of a minor.




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     Appellant’s first challenge to the sufficiency of the evidence supporting

his convictions is that “E.F.’s testimony was so contradictory and ambiguous

that the jury’s decision could only have been based on conjecture or

speculation.” Appellant’s brief at 15. He points to some inconsistencies in

her testimony.   For example, E.F. stated that she was never alone in the

computer room with Appellant but then reported that, when the abuse

occurred, she was with Appellant in the computer room while the door was

ajar and Shirley was in the other room. The victim also was unsure about

whether the incident occurred while she was sitting next to Appellant in a

chair or on his lap.   Additionally, the victim could not remember precisely

when the abuse occurred given the lapse of two years.

     It is well-established that, “The finder of fact . . . exclusively weighs

the evidence, assesses the credibility of witnesses, and may choose to

believe all, part, or none of the evidence.”   Commonwealth v. Sanchez,

36 A.3d 24, 39 (Pa. 2011); see also Commonwealth v. Haney, 2015 WL

9485187, at *8 (Pa. 2015) (rejecting defendant’s position that a witness was

not credible by observing that the “jury was free to find this evidence

credible”); Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013)

(“A determination of credibility lies solely within the province of the

factfinder.”); Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super.

2006) (“It is not for this Court to overturn the credibility determinations of

the fact-finder.”). Our Supreme Court has further articulated, on numerous

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occasions,    that:   “Issues   of   witness    credibility   include   questions   of

inconsistent testimony[.]” E.g. Sanchez, supra at 39.

       Herein, E.F. testified at trial about the abuse in an articulate manner.

The critical aspects of the trial testimony were consistent with what she told

her mother soon after the incident occurred. A week later, E.F. reported the

events to Ms. Leader, also in conformity with her trial testimony. Appellant

relies upon minor inconsistencies and a memory lapse on the part of a very

small child as to when the abuse occurred. However, E.F. was not

inconsistent about the essential facts that supported the convictions in

question.    Appellant touched her vagina and breasts. We do not view her

testimony as so inherently contradictory and unreliable that Appellant’s

convictions cannot stand. Indeed, Appellant heavily relies upon a Supreme

Court decision wherein the Court stated, “While it is true that [the witness’s]

various statements contained contradictions and some inconsistencies, we

do not conclude that her testimony was so inherently unreliable as to justify

a finding that a verdict based upon it must as a matter of law be set aside.”

Commonwealth v. Smith, 467 A.2d 1120, 1122 (Pa. 1983). No relief is

due.

       Appellant also suggests that the evidence was insufficient to establish

that his actions were undertaken for purposes of arousing or gratifying his

sexual desire. Appellant’s brief at 17 (“[T]he record is completely devoid of

any evidence that [Appellant] had contact with E.F. ‘for the purpose of

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arousing sexual desire in the person or the complainant.’”).     We disagree.

We have held that, when the actions undertaken by the defendant do “not

occur outside of the context of a sexual or intimate situation,” then the fact-

finder is free to conclude that the contact was “done for the purpose of

arousing or gratifying [the defendant’s] sexual desire.” Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa.Super. 2006).        Rubbing a female’s breasts

and touching her vagina does not occur outside of the context of a sexual

situation.   Hence, the proof adduced at trial was sufficient to support the

jury’s determination that Appellant’s actions were undertaken for the

purpose of arousing his sexual desire.

      Appellant’s next position is that the trial court committed an abuse of

discretion when it rejected his weight-of-the-evidence claim.        When we

review a weight-of-the-evidence challenge, we do not actually examine the

underlying question; instead, we examine the trial court’s exercise of

discretion in resolving the challenge. Commonwealth v. Leatherby, 116

A.3d 73 (Pa.Super. 2015). This type of review is necessitated by the fact

that the trial judge heard and saw the evidence presented. Id. Simply put,

“One of the least assailable reasons for granting or denying a new trial is the

lower court’s conviction that the verdict was or was not against the weight of

the evidence and that a new trial should be granted in the interest of

justice.” Id. at 82. A new trial is warranted in this context only when the

verdict is “so contrary to the evidence that it shocks one’s sense of justice

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and the award of a new trial is imperative so that right may be given

another opportunity to prevail.” Commonwealth v. Morales, 91 A.3d 80,

91 (Pa. 2014).

      In connection with this issue, Appellant again assails E.F.’s credibility

and does so on the same grounds as articulated in his sufficiency position.

However, as set forth supra, E.F.’s credibility was solely for the jury to

assess. E.F. was cross-examined on the inconsistencies now relied upon by

Appellant, and it is simply not our function to overturn the jury’s

determination.    For the same reasons outlined above, we cannot conclude

that the trial court abused its discretion in rejecting Appellant’s weight claim.

      The third averment presented on appeal is two-fold. Appellant claims

both that the trial court should not have determined that E.F. was competent

to testify and that it committed reversible error when it did not allow

Appellant to delve, on cross examination of E.F., into whether there was

taint, or into the details of the incident.

      We have noted, “It is well-settled that the determination of whether a

child is competent to testify is within the sound discretion of the trial court,

and an appellate court should not interfere with the lower court's ruling

absent a manifest abuse of discretion.”         Commonwealth v. Hunzer, 868

A.2d 498, 507 (Pa.Super. 2005). When a trial court is determining whether

a child witness is competent to testify, it must take into consideration the

following principles:

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         Competency of a witness is presumed, and the burden falls
     on the objecting party to demonstrate incompetency. When the
     witness is under fourteen years of age, there must be a
     searching judicial inquiry as to mental capacity, but discretion
     nonetheless resides in the trial judge to make the ultimate
     decision as to competency. In making its determination, the
     court must inquire whether the child possesses: (1) such
     capacity to communicate, including as it does both an ability to
     understand questions and to frame and express intelligent
     answers, (2) mental capacity to observe the occurrence itself
     and the capacity of remembering what it is that she is called to
     testify about and (3) a consciousness of the duty to speak the
     truth.

Id. (quoting Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa.Super.

2002)).

     Our review of the transcript of competency hearing establishes that

E.F. was articulate in her communications, understood all questions posed of

her, and answered them appropriately and intelligently.    She was able to

relate where she went to school, the precise date of when she was going to

be starting third grade, and the last names of her upcoming teacher as well

as her last two teachers. She told the presiding judge she was not married

and that she thought her first and third grade teachers were nice while her

second grade teacher was not nice.

     The court also questioned E.F.’s capacity to observe and recall the

occurrence itself. She knew she was present at the proceeding “[b]ecause

Coco[a] did something bad” and that Cocoa was her brothers’ grandfather.

Id. at 4. She correctly told the judge that the first person she told “about

what happened with Coco[a]” was her “mom.”       N.T. Competency Hearing,

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8/19/14, at 9. The girl informed the court that after she told her mom, she

stopped going to Appellant’s house and went to “Melissa’s.” Id. When the

trial court asked if Melissa was a counselor, E.F. insightfully responded, “Well

-- I think she’s a therapist.”     Id. at 10. Appellant was allowed to cross-

examine E.F. about her ability to recall the events that transpired after she

reported the abuse to her mother. However, the trial court would not permit

him to engage in extensive questioning about the actual events since the

proceeding was to determine the victim’s competency. The court reasoned

that Appellant already had the benefit of a preliminary hearing and “the

opportunity to question her about these [events] at that point in time.” Id.

at 13.

         Finally, the trial court ascertained the victim’s ability to distinguish

between fact and fiction and her duty to speak the truth. In this respect,

E.F. articulated that it was “[g]ood to tell the truth, “[bad] to tell a lie,” and

“[y]ou’ll get in trouble” if you lie. Id. at 5. The court asked E.F., “If I told

you that my shirt was white, would that be the truth or a lie?,” and she

responded, “Lie.” Id.      It then inquired why that statement was a lie, and

E.F. said, “Because your shirt isn’t white,” as it was blue. Id. Next, she was

asked “If I told you my ears were really, really small, would that be the truth

or a lie?,” and she answered, “A lie” since “they’re not small. They’re big.”

Id. Appellant was permitted to cross-examine E.F. about her awareness of

her duty to tell the truth. Id. at 6-7. E.F. repeated that it was good to tell

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the truth and bad to tell a lie and that she would probably get into trouble if

she lied in court. Thus, our review of the proceeding establishes that E.F.

satisfied all three aspects of the competency determination, and the trial

court’s ruling on the question was not an abuse of discretion.

      Appellant also complains about the curtailment in his questioning of

E.F. about the specifics of the abuse.      This issue concerns the trial court’s

ruling on the scope of cross-examination. “The scope and the manner of

cross-examination are within the sound discretion of the trial court and will

not   be   overturned   unless   the    court   has   abused   that   discretion.”

Commonwealth v. Nunn, 947 A.2d 756, 761 (Pa.Super. 2008) (quoting

Commonwealth v. Eichinger, 915 A.2d 1122, 1143 (Pa. 2007)).

      In this case, Appellant sought to question the victim about the

specifics of what occurred on the day of the incident in question.              A

competency hearing’s purpose is, in pertinent part, to ascertain a victim’s

capacity to observe and remember the event, which Appellant was permitted

to explore.   Our Supreme Court noted in Commonwealth v. Delbridge,

855 A.2d 27 (Pa. 2003), that a competency hearing is not a means of

discovery for the defendant. It ruled specifically in that decision that cross-

examination at a competency hearing “on the details of the events at issue”

is permitted only if there is some proof that the witness has “no recall of the

event in question, or the witness's ability to recall the event has been

corrupted.”   Id. at 45. E.F. evidenced an uncorrupted ability to recall the

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event, and the trial court herein did not abuse its discretion in refusing to

allow the proposed questioning about the details of the indecent contact.

      Appellant also suggests that he was improperly prohibited from

questioning E.F. about taint. Taint is defined as “the implantation of false

memories or the distortion of real memories caused by interview techniques

of law enforcement, social service personnel, and other interested adults,

that are so unduly suggestive and coercive as to infect the memory of the

child.” Id. at 35. “The core belief underlying the theory of taint is that a

child's memory is peculiarly susceptible to suggestibility so that when called

to testify a child may have difficulty distinguishing fact from fantasy.” Id. at

34-35.

      The Delbridge Court indicated that the defendant carries the initial

burden of proving taint, emphasizing that, “In order to trigger an

investigation of competency on the issue of taint, the moving party must

show some evidence of taint” by clear and convincing evidence. Id. at 40.

A non-exhaustive list of factors that can be used to assess whether taint

exists include the victim’s age, the circumstances of the questioning, the

child’s relationship with the interrogator, and the types of questions that

were asked.       Our Supreme Court ruled examination on taint at a

competency hearing becomes “necessary in those cases where there is some

evidence   that   improper   interview   techniques,   suggestive   questioning,

vilification of the accused and interviewer bias may have influenced a child

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witness to such a degree that the proffered testimony may be irreparably

compromised.” Id. at 39.

        In Delbridge, the defendant, at a competency hearing, sought to

explore the possibility that his estranged wife and police, through suggestion

and improper questioning, had implanted the memories of abuse allegations

leveled against him by his children. Despite having significant proof of the

possibility of taint, the trial court precluded any questioning of the children

on the subject. Our Supreme Court reversed, concluding that the defendant

should have been permitted to ascertain whether taint was present.

        In this case, there was not a scintilla of proof that E.F.’s testimony was

tainted. She was six years old when the contact occurred and old enough to

appreciate the nature of the actions by displaying appropriate reactions to

them.     She said that the incident made her angry, disgusted, and afraid.

There was no indication of the existence of animosity towards Appellant by

E.F. or her parents, and no motive to implant false memories in her. No one

was vilifying Appellant.

        E.F. volunteered to her mother that she did not want to go to

Appellant’s house, was asked why, and was hesitant to explain. J.W. did not

encourage E.F. to accuse anyone of abuse; she merely told her daughter

that she could be frank with her about anything.         E.F. then mimed what

Appellant had done to her. At a child resource center, E.F. was questioned

by a neutral specialist.    Neither Appellant nor E.F. had a relationship with

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Ms. Leader, who was trained in how to examine a child abuse victim.

Appellant produced no proof at the competency hearing that Ms. Leader’s

inquiries were leading or suggestive. As Appellant adduced no evidence of

taint, his questioning on that subject properly was restricted.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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