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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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