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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                           Appellee          :
                                             :
                    v.                       :
                                             :
LAUREN ENNIS,                                :
                                             :
                           Appellant         :     No. 2774 EDA 2014

            Appeal from the Judgment of Sentence February 18, 2014
                In the Court of Common Pleas of Monroe County
               Criminal Division No(s).: CP-45-CR-0001319-2012
                                         CP-45-CR-0001320-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED JANUARY 15, 2016

        Appellant, Lauren Ennis, appeals from judgment of sentence entered in

the Monroe County Court of Common Pleas, after a jury found her guilty of

two counts of endangering welfare of children, and two counts of corruption

of minors.1     Appellant claims the trial court erred in permitting testimony

under Pennsylvania’s Tender Years Statute.2 We affirm.

        As we write for the exclusive benefit of the parties, a full recitation of

the facts and circumstances giving rise to the filing of the above charges is



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 4304(a)(1), 6301(a)(1).
2
    42 Pa.C.S. § 5985.1.
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unnecessary. It suffices to note Appellant was charged for failing to protect

two of her children (“Children”) from continued abuse by Codefendant.3

Codefendant was separately charged with multiple sexual offenses related to

two incidents of abuse that occurred in Pennsylvania. Following reports of

abuse, the children were placed in CYS care.

        Appellant and Codefendant proceeded to a joint jury trial beginning on

July 11, 2013.     Before trial, the Commonwealth filed a notice of intent to

offer evidence under the Tender Years Statute.           Notice Pursuant to 42

Pa.C.S.    §   5985.1,    12/11/12.   After   Children   testified   at   trial,   the

Commonwealth sought to rehabilitate or corroborate their testimony that

Codefendant molested them. Specifically, the Commonwealth requested the

trial court allow testimony by a County Children and Youth Services (“CYS”)

caseworker and Children’s foster mother, stating that Children reported the

abuse to them.           N.T. In-Camera Proceedings, 7/11/13, at 5.                The

Commonwealth offered three bases to admit its proffer: the Prompt

Complaint Statute,4 Pennsylvania Rule of Evidence 613(c),5 and the Tender

Years Statute.6 N.T. Trial, 7/11/13, at 119-23. The trial court determined


3
    Codefendant was Children’s stepfather.
4
    18 Pa.C.S. § 3105.
5
    Pa.R.E. 613.
6
    42 Pa.C.S. § 5985.1.




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the Commonwealth’s proffer was not admissible as a prompt complaint or

under Rule 613(c). N.T. In-Camera Proceeding at 3. However, after an in-

camera hearing at which the caseworker and foster mother testified, the

court, over Appellant’s objections, ruled the testimony was admissible under

the Tender Years Statute.

     On July 23, 2013, the jury found Appellant guilty of all charges. On

February 18, 2014, the trial court sentenced her to twenty-four to sixty

months’ imprisonment in a state correctional institution. Following extended

post-sentence procedures,7 Appellant perfected this appeal and submitted a

timely Pa.R.A.P. 1925(b) statement claiming error in the ruling to admit the

caseworker’s and foster mother’s testimony as substantive evidence.

     The trial court filed a responsive Rule 1925(a) opinion, asserting its

ruling under the Tender Years Statute was proper. The court suggested the

testimony was relevant because it “describe[d] the sexual attack [by

Codefendant] that transpired.”      Trial Ct. Op., 9/2/14, at 8. (citing


7
  The trial court granted Appellant’s request for an extension to file post-
sentence motions.     However, we note the trial court did not rule on
Appellant’s post-sentence motion within 120 days or purport to grant a 30-
day extension for deciding the motion. See Pa.R.Crim.P. 720(b)(3)(a)-(b).
However, Appellant’s motion was not otherwise denied by operation of law,
which would constitute a breakdown in the operation of the courts. See id.;
Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007).
Therefore, even if the trial court’s order denying the post-sentence motion
was not timely entered, Appellant’s notice of appeal would still perfect this
Court’s jurisdiction. See Johnston the Florist v. TEDCO Constr. Corp.,
657 A.2d 511, 513 (Pa. Super. 1995) (en banc).




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Commonwealth v. Lyons, 833 A.2d 245, 255-56 (Pa. Super. 2003)). The

trial court also noted that under the Tender Years Statute, the underlying

statements were, by “statutory definition . . . potentially corroborative in

nature.”    Id. (citing Commonwealth v. Curley, 910 A.2d 692, 699 (Pa.

Super. 2006)).

      Appellant’s sole contention in this appeal is that the trial court abused

its discretion by admitting the caseworker’s and foster mother’s testimony

about Children’s reports of sexual abuse.8 Appellant’s Brief at 10. Appellant

suggests the trial court should have considered the Commonwealth’s proffer

under Pa.R.E. 613(c), and “never properly limited the scope of evidence

proffered under Tender Years to its narrow purpose.” Id. at 12. Relatedly,

he asserts this error was “compounded” by the Commonwealth’s closing

statement that Children’s “prior consistent statements provided further proof

of the claims of the victims.” Id. at 12-13. No relief is due.

      Our standard for reviewing a challenge to a trial court’s evidentiary

ruling is well-established:

           “[T]he admissibility of evidence is a matter addressed to
           the sound discretion of the trial court and... an appellate
           court may only reverse upon a showing that the trial court
           abused its discretion.” Commonwealth v. Weiss, . . .
           776 A.2d 958, 967 ([Pa.] 2001) (citations omitted). “An

8
 Appellant’s sole argument in this appeal is whether the principles of Pa.R.E.
613 should have governed the use of the subject testimony at trial. He does
not contest whether the Commonwealth provided proper notice, that
Children testified at trial, or whether indicia of reliability was met.




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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. Hoover, 16 A.3d. 1148, 1150 (Pa.
         Super. 2011).

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa. Super. 2015) (en banc).

      The Tender Years Statute creates an exception to the general rule

against hearsay for a statement made by a child who was twelve years old

or younger at the time of the statement.             42 Pa.C.S. § 5985.1(a);

Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super. 2012); cf.

Pa.R.E. 802. Of relevance to this appeal, a court may admit an out-of-court

statement of a child victim for the truth of the matter asserted when, inter

alia, the following elements are satisfied:

             (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

42 Pa.C.S. § 5985.1(a)(1), (2)(i).      One “indicia of reliability” is the child

victim’s “consistency in repetition” of the offered statement.       Barnett, 50

A.3d at 182-83 (citation omitted).

      This court considered a similar issue to the one presented in the case

at bar in Curley, 910 A.2d at 697-99. The defendant in Curley asserted the

Tender Years Statute conflicted with Rule 613(c). Id. at 698. According to


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the defendant, the conflict could only be resolved by admitting the child

victim’s prior statements “solely to bolster the victim’s credibility in light of

[his] denial of the victim’s version of events.”         Id. at 698.     The Court

rejected the defendant’s argument because it failed to account for the

fundamental differences between the Tender Years Statute and Rule 613(c).

Id. Specifically, we found the Tender Years Statute permits a child’s prior

statements to be used as substantive evidence of guilt, which stands “in

stark contrast to Rule 613(c), which governs rehabilitation of a testifying

witness.” Id. at 699.

      Based on Curley, we discern no abuse of discretion or error of law in

the trial court’s ruling. Notwithstanding Appellant’s assertion, the challenged

testimony was consistent with, and thus corroborative of, Children’s trial

testimony.     The   court   was   not   required   to    limit   or   analyze   the

Commonwealth’s proffer under Rule 613(c). See Curley, 910 A.2d at 699;

accord Barnett, 50 A.3d at 187. Lastly, because Appellant’s principal claim

lacks merit, his derivative argument that the alleged error was compounded

by the Commonwealth’s closing argument warrants no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/15/2016




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