In the Interest of: N.J.E., a Minor

J-A22030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.J.E., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

APPEAL OF: N.J.E., A MINOR

No. 273 MDA 2016

Appeal from the Dispositional Order February 8, 2016
In the Court of Common Pleas of Centre County
Juvenile Division at No(s): CP-14-JV-0000135-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 18, 2016

Appellant, N.J.E., appeals from the dispositional order entered after

he was found delinquent of indecent assault of a minor. N.J.E. contends that

the juvenile court erred in admitting evidence of a prior delinquency

adjudication and in denying his motion asserting that the minor victim’s

testimony was tainted. After careful review, we affirm.

While N.J.E. was under supervision pursuant to a consent decree

entered on a charge that he had exposed himself to his minor brother, N.J.E.

was charged with touching his other minor brother’s genitals. At trial, the

Commonwealth presented the testimony of the victim and evidence of the

circumstances supporting the consent decree. The juvenile court adjudicated

N.J.E. delinquent, and subsequently entered a dispositional order placing
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N.J.E. in a residential sex offender treatment program. This timely appeal

followed.

On appeal, N.J.E. first argues that the juvenile court erred in

permitting the Commonwealth to present evidence of the circumstances

supporting the consent decree. We will disturb a juvenile court’s disposition

only upon a showing of a manifest abuse of discretion. See In re R.D., 44

A.3d 657, 664 (Pa. Super. 2012). “The [a]dmission of evidence is within the

sound discretion of the trial court and will be reversed only upon a showing

that the trial court clearly abused its discretion.” In re F.P., 878 A.2d 91,

93 (Pa. Super. 2005) (citation omitted).

N.J.E. contends that the juvenile court erred in admitting evidence that

he had previously exposed himself to his minor brother. The juvenile court

concluded that this evidence was admissible under the “common plan or

scheme” exception. It is impermissible to present evidence at trial of a

defendant’s prior bad acts or crimes to establish the defendant’s criminal

character or proclivities. See Commonwealth v. Hudson, 955 A.2d 1031,

1034 (Pa. Super. 2008). Such evidence, however, may be admissible “where

it is relevant for some other legitimate purpose and not utilized solely to

blacken the defendant’s character.” Commonwealth v. Russell, 938 A.2d

1082, 1092 (Pa. Super. 2007) (citation omitted). The Rules of Evidence

specifically provide that “[e]vidence of other crimes, wrongs, or acts may be

admitted for other purposes, such as proof of motive, opportunity, intent,

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preparation, plan, knowledge, identity or absence of mistake or accident.”

Pa.R.E. 404(b)(2).

In determining whether the common plan exception applies, a trial

court must assess the distinctiveness and similarity of the circumstances of

the two incidents to determine whether they constitute a “signature.”

Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa.Super. 2015)

(citations omitted). Next, the court must assess the lapse of time between

the incidents, as a prior bad act that is remote in time may not be probative

of a common plan. See id. Finally, the court must determine that the

probative value of the prior bad act evidence is not outweighed by the

prejudicial impact on the trier of fact. See id.

Here, the current charges and the prior bad act both involved

allegations that N.J.E. had indecently assaulted his younger brothers in the

family’s home. The prior bad act was separated from the current allegations

by less than a year. Finally, the juvenile court, as trier of fact, was able to

consider the evidence only for its proper purpose, and not be swayed to

decide the case on improper grounds. See, e.g., Commonwealth v.

Harvey, 526 A.2d 330, 333 (Pa. 1987) (a trial judge is equipped, through

training and experience, to assess the competency and relevance of

proffered evidence and to disregard that which is prejudicial);

Commonwealth v. Brown, 486 A.2d 441, 443–44 (Pa. Super. 1984) (a

trial judge sitting as fact finder is presumed to ignore prejudicial evidence).

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We thus conclude that the juvenile court did not abuse its discretion in

admitting evidence of the prior bad acts.

Next, N.J.E. argues that the juvenile court erred in allowing the victim

to testify in this case. In particular, N.J.E. contends that the victim was

unduly influenced by leading and suggestive questioning by agents of the

Commonwealth. N.J.E.’s claim is an argument against the victim’s

competency to testify. “Our standard of review recognizes that a child’s

competency to testify is a threshold legal issue that a trial court must

decide, and an appellate court will not disturb its determination absent an

abuse of discretion. Our scope of review is plenary.” Commonwealth v.

Pena, 31 A.3d 704, 706-707 (Pa. Super. 2011) (citations, quotation marks,

brackets, and emphasis omitted).

“In Pennsylvania, the general rule is that every witness is presumed

to be competent to be a witness.” Commonwealth v. Judd, 897 A.2d

1224, 1228 (Pa. Super. 2006) (citation omitted); see also Pa.R.E. 601(a).

“A party who challenges the competency of a minor witness must prove by

clear and convincing evidence that the witness lacks the minimal capacity ...

(1) to communicate, (2) to observe an event and accurately recall that

observation, and (3) to understand the necessity to speak the truth.” Pena,

31 A.3d at 707 (internal quotation marks and citations omitted).

N.J.E. specifically challenges the second prong of the above three-part

test, what our Supreme Court has called “taint.” “Taint speaks to the

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second prong ..., the mental capacity to observe the occurrence itself and

the capacity of remembering what it is that the witness is called upon to

testify about.” Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003)

(citation and brackets omitted; emphasis in original).

In Delbridge, the Court stated the following regarding the issue of

taint:

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. Taint is 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, rendering that child incompetent to
testify.

Id., at 34-35 (internal citations omitted). The Court also explained the effect

of taint on the testimonial capacity of immature witnesses:

The capacity of young children to testify has always been a
concern as their immaturity can impact their ability to meet the
minimal legal requirements of competency. Common experience
informs us that children are, by their very essence, fanciful
creatures who have difficulty distinguishing fantasy from reality;
who when asked a question want to give the “right” answer, the
answer that pleases the interrogator; who are subject to repeat
ideas placed in their heads by others; and who have limited
capacity for accurate memory.

A competency hearing concerns itself with the minimal capacity
of the witness to communicate, to observe an event and
accurately recall that observation, and to understand the
necessity to speak the truth. A competency hearing is not
concerned with credibility. Credibility involves an assessment of
whether or not what the witness says is true; this is a question
for the fact finder. An allegation that the witness’s memory of
the event has been tainted raises a red flag regarding

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competency, not credibility. Where it can be demonstrated that a
witness’s memory has been affected so that their recall of events
may not be dependable, Pennsylvania law charges the trial court
with the responsibility to investigate the legitimacy of such an
allegation.

Id., at 39-40 (internal citations omitted).

Here, the juvenile court reviewed the video of the victim’s interview

with a forensic child abuse specialist, and heard the victim’s testimony in

court. It concluded that while the victim demonstrated typical immature

behaviors in reaction to a formal, unfamiliar atmosphere, his testimony

regarding the incident was intelligible and consistent. Furthermore, the

juvenile court found that the questioning utilized by the Assistant District

Attorney and the forensic specialist was not unduly suggestive.

Initially, we note that we are unable to review the interview with the

forensic specialist. The DVD included in the certified record is unplayable.

Furthermore, there is no transcript of the interview in the certified record. “It

is the obligation of the appellant to make sure that the record forwarded to

an appellate court contains those documents necessary to allow a complete

and judicious assessment of the issues raised on appeal.” Everett Cash

Mutual Insurance Company v. T.H.E. Insurance Company, 804 A.2d

31, 34 (Pa. Super. 2002) (quoting Hrinkevich v. Hrinkevich, 676 A.2d

237, 240 (Pa. Super. 1996)). We have no capability to review N.J.E.’s claims

regarding the interview with the forensic specialist, and therefore that claim

is waived.

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Regarding the questioning at the delinquency hearing, we have

reviewed the transcripts and conclude that the juvenile court did not abuse

its discretion. The questioning was not unduly suggestive, and the juvenile

court’s observations of the victim’s testimony are supported by the

transcript. N.J.E.’s second claimed error merits no relief on appeal.

Dispositional order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016

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