Com. v. Harsh, C.

J-S63015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CHRIST EUGENE HARSH,

Appellant No. 349 MDA 2014

Appeal from the Judgment of Sentence January 6, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004709-2012

BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 15, 2014

Christ Eugene Harsh appeals from the judgment of sentence of

eighteen to forty-five years incarceration that the trial court imposed after a

jury convicted Appellant of two counts each of involuntary deviate sexual

intercourse and indecent assault, and one count each of aggravated indecent

assault, unlawful conduct with a minor, corruption of a minor, and indecent

exposure. We affirm.

Appellant’s convictions were premised upon his sexual abuse of K.S.,

the seven-year-old daughter of T.S., Appellant’s live-in girlfriend. The trial

court summarized the evidence adduced in support of Appellant’s

convictions.

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-S63015-14

In April of 2012, [T.S.] contacted the Northwest Regional
Police Department of Lancaster County because her seven year
old daughter, K.S., had been setting fires in her bedroom. On
April 3, [T.S.] took K.S. to the police station to meet with Officer
Harry Cleland who had offered to talk to her about fire safety.
During the conversation, Officer Cleland sensed that K.S. had
something she wanted to communicate to him privately, and
asked [T.S.] to leave the room. Once they were alone, K.S.
pointed to her vagina and told Officer Cleland that [T.S.]'s
boyfriend, whom she referred to as “Daddy Gene,” had touched
her “down there.” (N.T. Jury Trial Vol. 1, 104:7-13.)

Officer Cleland immediately relayed K.S.'s disclosure to
[T.S.], and contacted Detective Gregory Wahl and Lancaster
County Children and Youth Services. Before Detective Wahl
arrived at the police station, K.S. asked to speak to
Officer Cleland a second time. This time, K.S. told Officer
Cleland that Defendant, Christ Eugene Harsh, took her into the
bathroom of their home, pulled down her pants, and put his
penis into her anus. K.S. also revealed that Defendant
instructed her not to tell anyone about the incident.

On April 4, [T.S.] took K.S. to Lancaster General Hospital
for a sexual assault examination which was conducted by nurse
examiner Angela Mays. During the initial interview, K.S. told Ms.
Mays that Defendant had “hurt her” and indicated that her
genital area was sore and itchy. (N.T. Jury Trial Vol. 2, 171:2-
11.) Ms. Mays completed a rape kit and collected several
vaginal, rectal and oral samples from K.S. Ultimately, all of the
samples tested negative for the presence of blood and seminal
material.

On April 10, [T.S.] took K.S. to the Lancaster County
Children's Alliance for a forensic interview and medical
examination arranged by Detective Wahl. Mary Hayle conducted
K.S.'s forensic interview. During the interview, and in
subsequent testimony and statements, K.S. once again stated
that Defendant pulled her pants down in the bathroom of their
home and stuck his penis in her anus until he “made it drool.”
(N.T. Jury Trial Vol. 1, 83:20-84:11). K.S. also revealed that
Defendant put his penis into her mouth and ejaculated while
[T.S.] was at work. Further, K.S. disclosed that Defendant
performed oral sex on her and inserted his fingers into her
vagina in the bathroom and living room of their home. K.S.

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J-S63015-14

stated that Defendant had oral and anal sex with her “a lot of
times.” (N.T. Jury Trial Vol. 1, 87:15-23.) Finally, K.S. disclosed
that Defendant grabbed her hand, put it on his penis, and
instructed her to “go up and down.” (N.T. Jury Trial Vol. 1, 89:7-
17.)

Trial Court Opinion, 4/10/14, at 1-3 (extraneous citations to record omitted).

Appellant filed a post-sentence motion after he received the above-

described sentence. This appeal followed denial of that motion. Appellant

presents these issues on appeal:

I. Did not the court err in entering an order under 42 Pa.C.S.
§5985 that the trial testimony of the minor complainant (KS) be
taken under oath or affirmation in a room other than a
courtroom and transmitted by a contemporaneous alternative
method?

II. Did not the court err in granting the Commonwealth's oral
motion in limine to exclude defendant's presentation of evidence
from defendant's mother which would have contradicted
testimony that the Commonwealth elicited from the minor
complainant's mother when the court incorrectly concluded that
defendant had not satisfied the prerequisites under Pa.R.E.
613(b) governing the proof of prior inconsistent statements
through extrinsic evidence?

Appellant’s brief at 5.

As to Appellant’s first position, we observe that, “The manner and

circumstances under which a child victim of sexual assault is permitted to

testify outside the presence of a defendant is governed by 42 Pa.C.S.A.

§ 5985, Testimony by contemporaneous alternative method.”1

____________________________________________

1
That section provides for an alternative method by which a child victim
can testify and provides:

(Footnote Continued Next Page)

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J-S63015-14

_______________________
(Footnote Continued)

(a) Contemporaneous alternative method.--Subject to
subsection (a.1), in any prosecution or adjudication involving a
child victim or a child material witness, the court may order that
the testimony of the child victim or child material witness be
taken under oath or affirmation in a room other than the
courtroom and transmitted by a contemporaneous alternative
method. Only the attorneys for the defendant and for the
Commonwealth, the court reporter, the judge, persons
necessary to operate the equipment and any person whose
presence would contribute to the welfare and well-being of the
child victim or child material witness, including persons
designated under section 5983 (relating to rights and services),
may be present in the room with the child during his testimony.
The court shall permit the defendant to observe and hear the
testimony of the child victim or child material witness but shall
ensure that the child cannot hear or see the defendant. The
court shall make certain that the defendant and defense counsel
have adequate opportunity to communicate for the purposes of
providing an effective defense. Examination and cross-
examination of the child victim or child material witness shall
proceed in the same manner as normally permitted.

(a.1) Determination.--Before the court orders the child victim
or the child material witness to testify by a contemporaneous
alternative method, the court must determine, based on
evidence presented to it, that testifying either in an open forum
in the presence and full view of the finder of fact or in the
defendant's presence will result in the child victim or child
material witness suffering serious emotional distress that would
substantially impair the child victim's or child material witness's
ability to reasonably communicate. In making this
determination, the court may do all of the following:

(1) Observe and question the child victim or child
material witness, 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 victim or child material witness in a medical
or therapeutic setting.
(Footnote Continued Next Page)

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J-S63015-14

Commonwealth v. Charlton, 902 A.2d 554, 558 (Pa.Super. 2006). We

give deference to the trial court’s decision to permit a child to testify by

alternative method. Id. Herein, the Commonwealth petitioned to present

K.S.’s testimony by this alternative method, and the trial court conducted

the appropriate hearing. Based upon the child’s actions at the preliminary

hearing, where she was too terrified of Appellant to speak, an in camera

interview, and the testimony of K.S.’s counselor, the trial court granted the

request. We affirm the trial court’s decision to permit the victim to testify

outside of Appellant’s presence on the basis of its April 10, 2014 opinion at

pages four through six.

Appellant’s second position concerns the trial court’s refusal to allow

him to present extrinsic evidence of a purported verbal statement that K.S.’s

mother made to Appellant’s mother. Appellant suggests that the statement

was admissible under Pa.R.E. 613(b), which provides:

(b) Extrinsic Evidence of a Witness's Prior Inconsistent
Statement. Unless the interests of justice otherwise require,
extrinsic evidence of a witness's prior inconsistent statement is
admissible only if, during the examination of the witness,

(1) the statement, if written, is shown to, or if not
written, its contents are disclosed to, the witness;

(2) the witness is given an opportunity to explain or
deny the making of the statement; and

_______________________
(Footnote Continued)

42 Pa.C.S. § 5985.

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J-S63015-14

(3) an adverse party is given an opportunity to
question the witness.

Pa.R.E. 613(b).

Initially, we note that, “Our standard of review for a trial court's

evidentiary rulings is narrow, as the admissibility of evidence is within the

discretion of the trial court and will be reversed only if the trial court has

abused its discretion.” Commonwealth v. Melvin, 2014 WL 4100200, 24

(Pa.Super. 2014). The present issue concerns Appellant’s ability to impeach

T.S. On cross-examination, she was asked the following questions:

Q Had there ever been any other accusations while you lived at
114 Colebrook Road that somebody else, besides the defendant,
may have had sexual relations or sexual misconduct with [K.S.]?

A No.

Q Never? Okay. So it was never alleged that Tuan or Tim had
done anything sexually inappropriate with [K.S.]?

A No.

N.T. Trial Vol. 1, 9/30/13, at 58.

During presentation of his defense, Appellant stated that he intended

to call his mother, Donna Lee Harsh, as a witness. Appellant proffered that

T.S. told Ms. Harsh that K.S. made allegations of child abuse against T.S.’s

brother, Tuan a/k/a Tim. The Commonwealth objected on the basis that

Appellant had not confronted T.S. with making that statement to Ms. Harsh

and had, concomitantly, failed to give her an opportunity to deny making it,

or, if T.S. did make the remark, to offer an explanation for its utterance.

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J-S63015-14

The trial court sustained the objection2 and ruled that Appellant failed to

satisfy the mandates of Rule 613 in that he never asked T.S. if she told

Ms. Harsh that K.S. leveled abuse allegations against Tuan/Tim.

This ruling is unassailable. Appellant never asked T.S. whether she

made any statement to Ms. Harsh about other sex abuse allegations. The

statement was not disclosed to the witness at any point during cross-

examination. T.S. never had the ability to deny making that statement, or,

if she did, to explain why she made it. Thus, the first and second aspects of

the Rule were not satisfied, and the trial court correctly found that the

proposed proof of the alleged prior statement was inadmissible.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2014

____________________________________________

2
There was no motion in limine at issue, as suggested by Appellant’s
statement of the issue. Rather, there was a Commonwealth objection when
Appellant proposed to present Ms. Harsh’s testimony, and the trial court
sustained the objection.

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 Circulated 09/30/2014 02:13 PM

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMIN AL

COMMONWEALTH OF PENNSYLVANIA

v. No. 4709-2012;;-:
,
D
'.
CHRIST EUGENE i-iARSH

OPINION
'.-. ( •.1 ,.::.

BY: WRIGHT, J. April
--,. Iii; 2014; .
....-......
"
This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate

Procedure. Defendant, Christ Eugene Harsh, claims that this Court erred in permitting the

victim's testimony to be presented via contemporaneous alternative method and by excluding the

testimony of his 'mother, Donna Lee Harsh. A review of the record and applicable law

demonstrates that Defendant's claims lack merit and, therefore, his appeal should be dismissed.

BACKGROUND

In April of20]2, Tara Shenk contacted the Northwest Regional Police Department of

Lancaster County because her seven year old daughter, KS., had been setting fires in her

bedroom. (N.T. Jury Trial Vol. ], 5]: 18-25.) On April 3, Ms. Shenk took KS. to the police

station to meet with Officer Harry Cleland who had offered to talk to her about fire safety. (N.T.

Jury Trial Vol. 1,52:21- 53:2; 99:23 -100:10.) During the conversation, Officer Cleland

sensed that K.S. had something she wanted to communicate to him privately, and asked Ms.

Shenk to leave the room. (N.T. Jury Trial Vol. 1, Hi2:7-19.) Once they were alone, KS. pointed

to her vagina and told Officer Cleland that Ms. Shenk's boyfriend, whom she referred to as

"Daddy Gene," had touched her "down there." (N.T. Jury Trial Vol. 1, 104:7-13.)

Exhibit B
 Circulated 09/30/2014 02:13 PM

Officer Clelanq immediately relayed KS. 's disclosure to Ms. Shenk, and contacted

Detective Gregory Wahl and Lancaster County Children and Youth Services. (N.T. Jury Trial

Vol. 1, 105:4-21.) Before Detective Wahl arrived at the police station, KS. asked to speak to

Officer Cleland a second time. (N.T. Jury Trial Vol. 1, 106:20·22.) This time, KS. told Officer

Cleland that Defendant, Christ Eugene Harsh, took her into the bathroom of their home, pulled

doWll her pants, and put his penis into her anus. (N .T. Jury Trial Vol. 1, 107:2·7.) KS. also

revealed that Defendant instructed her not to tell anyone about the incident. (N.T. Jury Trial Vol.

1,107:8·11.)

On April 4, Ms·. Shenk took K.S. to Lancaster General Hospital for a sexual assault

examination which was conducted by nurse examiner Angela Mays. (N.T. Jury Trial Vol. 2,

170; 11 - 171 :2.) During the initial interview, KS. told Ms. Mays that Defendant had "hurt her"

and indicated that her genital area was sore and itchy. (N.T. Jury Trial Vol. 2, 171 :2·11.) Ms.

Mays completed a rape kit and collected several vaginal, rectal and oral samples from KS.

(N.T. Jury Trial Vol. 2, 178: 18-23.) Ultimately, all of the samples tested negative for the

presence of blood and seminal material. (N.T. Jury Trial Vol. 2, 161:2 - 163:4.)

On April 10, Ms. Shenk took KS. to the Lancaster County Children'S Alliance for a

forensic interview and'medicaI examination arranged by Detective Wahl. (N.T. Jury Trial Vol.

1, 117:24 - 118:2.) Mary Hayle conductedK.S.'sforensicintel'view. (N.T, Jury Trial Vol.: 1, .

117:24 - 118:2.) During the interview, and in subsequent testimony and statements, K.S. once

again stated that Defendant pulled her pants down in the bathroom of their home and stuck his

penis in her anus until he "made it drool." (N.T. Jury Trial Vol. 1, 83:20 - 84: 11.) K.S. also

revealed that Defendant put his penis into her mouth and ejaculated while Ms. Shenk was at

work. (N.T. Jury Trial Vol. 1,84:19 - 85:23.) Further, K.S. disclosed that Defendant performed

2
 Circulated 09/30/2014 02:13 PM

oral sex on her and inserted his fingers into her vagina in the batlu'oom and living room of their

home. (N.T. Jury Trial Vol. 1,86:14 - 88:25.) KS. stated that Defendant had oral and anal sex

with her "a lot of times." (N.T. Jury Trial Vol. 1, 87: 15-23.) Finally, KS. disclosed that

Defendant grabbed her hand, put it on his penis, and instructed her to "go up and down." (N.T.

Jury Trial Vol. 1,89:7-17.)

After the forensic interview, Julie Stover, a nurse practitioner and an expert in child

sexual abuse, performed a physical examination ofKS. (N.T. Jury Trial Vol. 2, 183:19-23.)

While the results ofK.S.'s examination were normal, Ms. Stover cautioned that the mucosal

tissue lining the vagina and rectum typically heals within seventy-two hours of injury, and that

visible scarring is only'observed in 5% of cases. (N.T. Jury Trial Vol. 2, 192:2-24.)

As a result ofK.S.'s statements, in May of2012, Detective Wahl charged Defendant with

two 'counts ofInvoluntary Deviate Sexual Intercourse with a Child, lone count of Aggravated

Indecent Assault,2 one count of Unlawful Conduct with a Minor? two counts ofIndecent

Assault,4 one count or'Conuption of Minors/ and one count ofIndecent Exposure. 6 Following a

tWo day jury trial, (lIl October 2, 2013, Defendant was convicted of all charges and a Pre-

Sentence Investigation was ordered. (N.T. Jury Trial Vol. 3, 287:18 - 291 :7.) On JanualY 6,

2014, Defendant was sentenced to a total aggregate of 18 - 45 years of incarceration. (N.T.

Sentencing Hearing, 18:12-19:19.)

On January 16, 2014, Defendant filed a Post Sentence Motion comprised of a Motion for

Judgment of Acquittal, Motion for New Trial and Motion to Modify Sentence, all of which were

t 18 P.S. §3123(b).
218 Pa.C.S.A. § 3125(b).
, 18 P•. C.S.A. § 63 I 8(a)(I).
418 Po.C.S.A. § 3126(a)(7).
s 18 P•. C.S.A. § 6301 (a)(I)(ii).
618 P.S. § 3127.
3
 Circulated 09/30/2014 02:13 PM

denied on January 23, 2014. On February 21, 2014, Defendant filed a timely Notice of Appeal

to the Superior Court, and on March 11,2014, Defendant submitted his Concise Statement of

Errors Complained of on Appeal. In his Statement, Defendant claims that this Court erred in

permitting KS. 's testimony to be presented via contemporaneous alternative method and by

excluding the testimony of his mother, DOlllla Lee Harsh.

DISCUSSION

Defendant's first claim is that the Court erred in permitting K.S. 's testimony to be taken

under oath outside of the courtroom and transmitted by contemporaneous alternative method.

On July 29, 2013, the Commonwealth filed a Motion asking the Court to permit K.S. to testify at

trial by contemporane~us alternative method. Accordingly, on August 16, 2013, a Hearing was

conducted on the Motion. As a part of the Hearing, K.S., who was then nine years old, was

questioned in camera about her ability to testify in Defendant's presence. While KS. stated that

she thought she could testify with Defendant in the courtroom, she appeared uncomfortable and

often did not provide v.erbal responses to the qUestions she was asked. (N.T. Tender Years

Hearing, 5: 13 - 6:2.)

Following the in camera interview, Heidi Getsy, KS. 's counselor, stated that K.S.

ft'equently indicated that she was aft'aid Defendant would hurt her if she testified while he was in

the courtroom. (N.T. Tender Years I-learing, 12:4 -13:2.) Ms. Gelsy also stated that she

believed testifying in Defendant's presence would cause KS. serious emotional distress and

impair her ability to communicate reasonably. (N.T. Tender Years Hearing, 15:3-12.) Finally,

Ms. Shenk, Detective Wahl, and Rodney Stoltzfus, KS.'s biological father, all stated that at the

Preliminary Hearing, despite initially indicating she was capable of testifying, KS. became

4
 Circulated 09/30/2014 02:13 PM

terrified when she saw Defendant and was unable to speak about the sexual abuse. (N.T. Tender

Years Hearing, 17:23 -18:9; 22:7" 16; 24:19 - 25: 1.)

The manner under which a child victim may testify outside of the presence of a defendant

is governed by 42 Pa.C.S.A. § 5985, "Testimony by contemporaneous alternative method."

Section 5985(a) provides that "[i)n any prosecution or adjudication involving a child victim or a

child material witness, the court may order that the testimony of the child victim or child

material witness be taken under oath or affinnation in a room other than the courtroom and

transmitted by a contemporaneous alternative method." Before permitting a child to testify via

contemporaneous alternative method, a'court must find that "testifYing either in an open forum in

the presence and full view of the finder of fact or in the defendant's presence will result in the

child victim or child material witness suffering serious emotional distress that would

substantially impair the child victim's or child material witness's ability to reasonably

communicate." 42 Pa.C.S.A. § 5985(a.l). In making this determination, a court is permitted to:

(I) Observe and question the child victim or child materia! witness, either inside or outside of the

courtroom; and (2) Hear testimony of a parent or custodian or any other person, such as a person

who has dealt with the child victim or child material witness in a medical or therapeutic setting."

42 Pa.C.S.A. § 5985(a.l)(1-2).

After complyin.s: with the procedures outlined in Section 5985, the Court found numerous

reasons to permit K.S. to testify via contemporaneous alternative method. Despite previously

indicating that she could testifY in Defendant's presence, at the Preliminary Hearing KS. became

so terrified upon seeing Defendant that she was unable to speak. Additionally, Ms. Getsy

revealed that KS. frequently expressed trepidation about seeing Defendant in the courtroom and

indicated that she was afraid he would physically harm her. Moreover, Ms. Getsy stated that

5
 Circulated 09/30/2014 02:13 PM

testifYing in Defendant's presence would cause KS. serious emotional distress and hamper her

ability to communicate. Finally, my own observations ofK.S.'s in camera interview

underscored my belief.that she would be unable to effectively communicate in Defendant's

presence. Therefore, the Court had ample. reason for granting the Commonwealth's Motion and

permitting KS. to testifY by contemporaneous alternative method.

Defendant's second claim is that the Court erred in granting the Commonwealth's

objection to the testimflny of Defendant's mother, Donna Lee Harsh. At the conclusion of the

Commonwealth's case in chief, Defendant's allomey indicated his intention to call Ms. Harsh as

a rebullal witness. (N.T. Jury Trial Vol. 2,214:21-23.) Specifically, defense counsel wanted

Ms. Harsh to testify that Ms. Shenk told her there were allegations that KS.'s uncle, Tuan Pham,

had sexually abused her. (N.T. Jury Trial Vol. 2, 214:23 - 215:9.) The Commonwealth objected

to the proposed testimony claiming that defense counsel did not lay the proper foundation to

impeach Ms. Shenk with extrinsic evidence of a prior inconsistent statement. (N.T. Jury Trial

Vol. 2, 215:10-19.)

Pennsylvania Rule of Evidence 613(b) provides:

Unless the interests of justice otherwise require, extrinsic evidence ofa
witness's prior inconsistent statement is admissible only if, during the
examination ofthc witness,

(1) The statement, ifwrillen, is shown to, or ifnot wrillen, its contents are
disclosed tq, the wi tness;

(2) The wihiess is given an opportunity to explain or deny the making of
the statement; and

(3) An adverse party is given an opporhlllity to question the witness.

6
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During his cross-examination, defense counsel and Ms. Shenk engaged in the following

relevant exchange:

Q: flad there ever been any other accusations while you lived
at 114 Colebrook Road that somebody else, besides the
Defendant, may have had sexual relations or sexual
misconduct with [K.S.]?

A: .No.

Q: Never? Okay. So it was never alleged that Tuan or Tim
had done anything sexually inappropriate with [K.S.]?

A: No.

(N.T. Jury Trial Vol. 1,58:6-14.)

Considering the foregoing, defense counsel didnot lay the proper foundation to impeach

Ms. Shenk with extrinsic evidence of a prior inconsistent staiement. Whlle defense counsel

asked generally whether there were ever allegations that K.S. 's uncle sexually abused her, he

never confronted Ms. Shenk with the statements she allegedly made to Ms. Harsh. Accordingly.

Ms. Shenk was deprived of the opportunity to explain or deny making these specific comments.

Since defense counsel did not comply with the requirements ofPelillsylvania Rule of Evidence

613(b), the COUli properly sustained the Commonwealth's objection and excluded Ms. Harsh's

proposed testimony.

CONCLUSION

Since Defendant's claims of error lack merit, this Court respectfully quests that

Defendant's appeal be dismissed.

Accordingly, I enter the following:

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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

v. No. 4709·2012

CHRIST EUGENE HARSH

ORDER

AND NOW, this 'lo day of April, 2014, the Court hereby submits this Opinion

pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

I certify this document to be filed BY THE COURT:
In Rhe Lancaster County Office of rl
I\
tho Clerk of the Courts. '~

.)J'~G.;g Clerk of the Courts
(fEFFE
\. nmG'
"',

Copies to:
James M. Reeder, Assistant District Attorney
James J. Karl, Chief Public Defender