In the Interest of: J.J.B., a Minor

J-S19016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.J.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA
No. 1035 MDA 2016

Appeal from the Order Entered May 27, 2016
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-JV-0000019-2016

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 12, 2017

Appellant, the Commonwealth of Pennsylvania, appeals from the

juvenile court’s order sustaining Appellee’s, J.J.B. (a minor), objection to the

admission of a March 23, 2016 videotaped statement of the victim, on the

grounds that the statement is hearsay. We affirm.

The juvenile court provided the factual background and procedural

history of this case as follows:
J.J.B. (hereinafter referred to as [] Juvenile) is a minor … and is
presently sixteen (16) years of age. [] Juvenile is presently in
the custody of R.F. and B.F., who pursuant to an [o]rder entered
by this [c]ourt in a [d]ependency matter are permanent legal
custodians. R.F. and B.F. have been foster parents in … Clinton
County for more than two (2) decades.

Chief David Winkleman of the Pine Creek Township Police
Department filed a [w]ritten [a]llegation against [] Juvenile on
March 14, 2016[,] alleging that on March 12, 2016[,] [] Juvenile
had committed the offense of Indecent Assault. [] Juvenile was
charged with two (2) Counts of Indecent Assault, Count one (1)
____________________________________________

*
Former Justice specially assigned to the Superior Court.
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graded as a misdemeanor of the first degree[,] and Count two
(2) graded as a misdemeanor of the second degree. Count No.
1 is graded as a misdemeanor of the first degree because it is
alleged that [] Juvenile had indecent contact with a person under
the age of thirteen (13) years of age, who is four (4) years
younger than [] Juvenile and not married to [] Juvenile.[1] Count
No. 2 alleges that [] Juvenile had indecent contact with a person
under sixteen (16) years of age, four (4) or more years younger
than [] Juvenile and not married to [] Juvenile.[2] The victim in
this matter is a nine (9) year old daughter of the permanent
legal custodians R.F. and B.F. … [T]he victim[] … is clearly four
(4) years younger than [] Juvenile. Chief Winkleman alleges
that on March 12, 2016[,] … while playing hide and seek[,] the
victim hid in the closet of the victim’s bedroom and that []
Juvenile entered the closet to hide with the victim and started to
rub the vaginal and buttocks area of the victim, over the clothes
of the victim.

[] Juvenile was detained at the Central Counties Youth Detention
Center and a Petition Alleging Delinquency was filed on March
14, 2016[,] by Probation Officer Meghan Bitner. At the
Detention Hearing on March 16, 2016, Senior Judge J. Michael
Williamson continued [] Juvenile’s placement in the Central
Counties Youth Detention Center and an Adjudication Hearing
was scheduled for March 28, 2016. At the hearing on March 28,
2016, the Commonwealth was not prepared to proceed and the
matter was continued. [] Juvenile continued to be held in the
Central Counties Youth Detention Center. The Adjudication
Hearing was rescheduled for April 6, 2016.

At the April 6, 2016 hearing, the Commonwealth failed in the
Commonwealth’s attempt to prove that the victim was
unavailable as a witness as defined in 42 Pa.C.S.[] § 5985.1,[3]

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1
See 18 Pa.C.S. § 3126(a)(7).
2
See 18 Pa.C.S. § 3126(a)(8).
3
This statute is referred to as the Tender Years Hearsay Act (“TYHA”). See,
e.g., Commonwealth v. Walter, 93 A.3d 442, 444-45 (Pa. 2014). It
states, in relevant part, the following:
(Footnote Continued Next Page)

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was unable to proceed further and requested a continuance.
During said hearing, the Commonwealth presented the
testimony of the victim in [c]hambers before this [c]ourt with
counsel present. The victim indicated on at least two (2)
occasions that the victim did not want to discuss the alleged
incident that occurred on March 12, 2016. No testimony was
elicited from the victim who was the only witness presented
_______________________
(Footnote Continued)

(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
homicide), 27 (relating to assault), 29 (relating to kidnapping),
31 (relating to sexual offenses), 35 (relating to burglary and
other criminal intrusion) and 37 (relating to robbery), not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(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.

(a.1) Emotional distress.--In order to make a finding under
subsection (a)(2)(ii) that the child is unavailable as a witness,
the court must determine, based on evidence presented to it,
that testimony by the child as a witness will result in the child
suffering serious emotional distress that would substantially
impair the child’s ability to reasonably communicate. In making
this determination, the court may do all of the following:
(1) Observe and question the child, 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 in a
medical or therapeutic setting.

42 Pa.C.S. § 5985.1(a), (a.1).

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concerning the indecent assault at the hearing of April 6, 2016.
Also on April 6, 2016, this [c]ourt released [] Juvenile from
[d]etention and placed [] Juvenile in the legal and physical
custody of [] Juvenile’s permanent legal guardians with the
understanding that the Clinton County Children and Youth Social
Services Agency would implement a safety plan. The
Adjudication Hearing was continued to May 6, 2016.

At the May 6, 2016 hearing, the Commonwealth presented two
(2) witnesses. The first witness was once again the victim, who
[was] eight (8) years of age. The victim indicated that the
victim did not know her address or in what town the victim lived,
did not know the victim’s grade in school, and did not remember
talking to anyone in Bellefonte, which is a Borough in Centre
County, Pennsylvania, where the Child Advocacy Center is
located. The victim indicated that the victim did not remember
talking about [] Juvenile to anyone or any allegations about []
Juvenile.

The second witness presented by the Commonwealth at the May
6, 2016 hearing was Ashley Carper, who is a Forensic
Interviewer with the Children’s Advocacy Center located in
Bellefonte, Pennsylvania. Ms. Carper interviewed the victim on
March 23, 2016. Ms. Carper indicated that Ms. Carper was
trained in forensic interviewing and that forensic interviewing
was an attempt to grant the child a safe space to be interviewed.
Ms. Carper indicated that Ms. Carper attempts to build a rapport
with the child and then to allow the child to give a narrative as to
what occurred. The Commonwealth then requested to present
the videotape of the interview which occurred at the Child
Advocacy Center in Bellefonte, Pennsylvania on March 23, 2016.
[] Juvenile objected. This [c]ourt recessed the hearing and
directed the parties to file [b]riefs. This [c]ourt has … received
the [b]riefs.

Trial Court Opinion (TCO), 5/27/2016, at 1-4.

After receiving the parties’ briefs regarding whether the victim’s

videotaped statement should be admitted into evidence, the juvenile court

ultimately determined that it should be excluded because the victim did not

testify concerning the alleged incident and “Juvenile has not had a full and

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fair opportunity to cross-examine the victim which will deny [] Juvenile’s

right to confront [] Juvenile’s accuser.” Id. at 7.

Subsequently, the Commonwealth filed a timely notice of appeal

pursuant to Pa.R.A.P. 311(d), in which it certified that the juvenile court’s

order will terminate or substantially handicap the prosecution. Thereafter, it

filed a timely concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On appeal, the Commonwealth raises a

single issue for our review:
Did the court err in finding that the videotape[d] statement of
the victim from March 23, 2016 was hearsay, and therefore
sustain[ing] Juvenile’s objection?

Commonwealth’s Brief at 4 (numbering and unnecessary capitalization

omitted).4

Initially, we set forth our standard of review:
An appellate court’s standard of review of a trial court’s
evidentiary rulings which include rulings on the admission of
hearsay is abuse of discretion. [] Walter, …93 A.3d [at] 449 …
citing Commonwealth v. Delbridge, 578 Pa. 641, 653 n.8, 855
A.2d 27, 34 n.8 (2003). However, whether a defendant has
been denied his right to confront a witness under the
Confrontation Clause of the Sixth Amendment to the United
States Constitution, made applicable to the States via the
Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403,
85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965), is a question of
law, for which our standard of review is de novo and our scope
of review is plenary. Commonwealth v. Yohe, 621 Pa. 527,
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4
With respect to the Commonwealth’s argument that the victim’s videotaped
statement should be admitted under the TYHA, we believe a more apt
phrasing of this issue is whether the juvenile court erred in finding that the
videotaped statement was not admissible hearsay.

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542–45, 79 A.3d 520, 530–531 (2013) citing Commonwealth
v. Cannon, 610 Pa. 494, 22 A.3d 210 (2011).

In re N.C., 105 A.3d 1199, 1210 (Pa. 2014).

The Commonwealth argues that “[t]he [v]ictim took the stand, briefly

testified, and was available for cross-examination by [] Juvenile. The

specific elements under … [the TYHA,] 42 Pa.C.S.[] § 5985.1[,] were

satisfied when the [v]ictim took the stand, and therefore it is permissible for

the videotape[d] interview to be played by the Commonwealth.”

Commonwealth’s Brief at 8. We disagree.

The Commonwealth claims that “[t]he question presented at the May

6, 2016 hearing focused specifically on what and how much testimony is

sufficient to satisfy … 42 Pa.C.S.[] § 5985.1(a)(2)(i).” Id. at 12. However,

we think that this mischaracterizes the issue; instead, the juvenile court

pointed out that, at the hearing, Juvenile “objected[,] indicating that the

videotape[d] statement was still hearsay as the victim had not testified

regarding the facts of the incident at the hearing and the victim could not be

cross-examined on those facts.” TCO at 4. Thus, in its opinion, the juvenile

court considered the Confrontation Clause of the Sixth Amendment of the

United States Constitution, as well as the Confrontation Clause of Article I,

Section 9 of the Pennsylvania Constitution, and concluded that “no

opportunity occurred for [] Juvenile’s counsel to cross-examine the victim

concerning the incident.” Id. at 5, 6. The juvenile court observed that at

the May 6, 2016 hearing, “the victim did not remember participating in the

forensics interviews … [,] and at the proceeding on April 6, 2016[,] the

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victim declined to discuss the incident.” Id. at 5. Accordingly, the trial

court made the finding that “the victim … declined to testify regarding this

incident,” and did not simply fail to “recall the alleged criminal incident.” Id.

at 8.5

Our Supreme Court has explained:
The Confrontation Clause guarantees that “in all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him.” U.S. CONST.,
amend. VI. The High Court in Crawford [v. Washington, 541
U.S. 36 (2004)] … rejected the indicia of reliability standard
which it had applied previously in Ohio v. Roberts, 448 U.S. 56
… (1980) as violative of the Sixth Amendment and
fundamentally altered Confrontation Clause jurisprudence with
regard to testimonial hearsay when it held that the Confrontation
Clause prohibits the admission of testimonial hearsay against a
criminal defendant, regardless of whether the statements are
deemed reliable by the trial court, unless the declarant is
unavailable to testify and the defendant had a previous
opportunity to cross-examine the witness. Crawford, 541 U.S.
at 68…. See also Commonwealth v. Yohe, … 79 A.3d 520,
530–31 ([Pa.] 2013); Commonwealth v. Allshouse[,] … 36
A.3d 163, 171 ([Pa.] 2012). In keeping with its framing of the
necessary inquiry as whether the defendant had an opportunity
to cross-examine the witness, rather than whether the witness
was, in fact, cross-examined, the Crawford Court espoused that
“when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of
his prior testimonial statements.” Crawford, 541 U.S. at 59 …
(citation omitted).

While the right to confrontation is a fundamental one, this Court
has explained it is not absolute. See Commonwealth v.
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5
The trial court states that “[t]here is no question that the child victim’s
statement to a forensic interview specialist is testimonial.” TCO at 5.
Further, the Commonwealth does not argue on appeal that the victim’s
videotaped statement is not testimonial.

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Wholaver, … 989 A.2d 883 (2010) cert. denied [562 U.S. 933],
131 S.Ct. 332, 178 L.Ed.2d 216 (2010) (discussing generally the
“forfeiture by wrongdoing” exception to the hearsay rule and the
Confrontation Clause and upholding a trial court’s admission of
two murder victims’ preliminary hearing testimony at
defendant’s trial). In addition, when determining whether a
defendant has a right to present expert testimony to rebut the
Commonwealth’s introduction of evidence in support of its
motion pursuant to 42 Pa.C.S.[] § 5985 to allow a child witness
to testify in a room outside of the courtroom, this Court recently
explained:

the right to confrontation is basically a trial right, and
includes both the opportunity for cross-examination of the
witnesses and the occasion for the jury to consider the
demeanor of the witnesses. Barber v. Page, 390 U.S.
719, 725, … (1968). “The central concern of the
Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding
before the trier of fact.” Maryland v. Craig, 497 U.S.
836, 845 … (1990).

Commonwealth v. Williams, [624 Pa. 183], 84 A.3d 680, 684
([Pa.] 2014).

In re N.C., 105 A.3d at 1215 (original brackets omitted).

In In re N.C., our Supreme Court affirmed that a juvenile defendant’s

right to be confronted with a witness against him under the Confrontation

Clause of the Sixth Amendment of the United States Constitution had been

“violated where the juvenile court admitted into evidence an out-of-court,

video-taped, forensic interview of a child complainant under the Tender

Years Hearsay Act (‘TYHA’), even though defense counsel did not cross-

examine the child complainant who had taken the witness stand at the

juvenile’s contested adjudication hearing.” Id. at 1200. In that case, the

four-year-old victim “answered questions concerning various innocuous

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topics such as her birthday, school, family, and her ability to differentiate

the truth from a lie with nods and shakes of her head, along with a few

verbal responses[,]” but “was unable to provide direct examination

testimony regarding any contact [the juvenile defendant] might have had

with her” and “became totally unresponsive to [the prosecutor’s] repeated

efforts to elicit information regarding inappropriate contact [the juvenile

defendant] may have had with her….” Id. at 1216.6 Ultimately, while on

the witness stand, the victim recoiled into a fetal position, and “the

Commonwealth conceded continued questioning of the unconversable child

complainant on direct examination would have been futile, and the juvenile

court suggested she be removed from the witness stand….” Id. at 1200,

1216. Afterwards, following subsequent testimony by a forensic interviewer,

the juvenile court admitted the victim’s video interview into evidence over

defense counsel’s objection that it violated the juvenile’s right to

confrontation under the Sixth Amendment. Id. at 1206-07.

In determining whether the victim’s videotaped interview in that case

violated the juvenile’s right under the Confrontation Clause of the Sixth

Amendment, our Supreme Court observed that “the juvenile court conflated

the federal constitutional challenge before it—whether [the juvenile

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6
The Supreme Court noted that the victim was three years old at the time of
the alleged incident, and was four years old when the adjudicatory hearing
took place. Id. at 1200, 1200 n.1.

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defendant’s] right to confrontation … had been satisfied—with the separate

issues of [the victim’s] competency to testify at the hearing … and of

whether the forensic interview was admissible under the TYHA.” Id. at

1216. It noted that “[a]n accused’s right to confront and cross-examine

witnesses against him applies to both in-court testimony and to out-of-court

statements introduced at trial, regardless of the admissibility of those

statements under the law of evidence[,]” and it did not “speak to whether

[the victim’s statements] in the forensic interview satisfied the requirements

of the TYHA….” Id. at 1215 n.18. Therefore, with respect to the

Confrontation Clause issue, our Supreme Court explained that it could not

“find the confrontation element of Crawford was met herein, for Crawford

and its progeny require an opportunity for effective cross-examination which

[the juvenile defendant] simply did not have[,]” as the victim provided

“virtually no verbal responses on direct examination … which effectively left

defense counsel with no opportunity to cross-examine her on the charges

brought against [the juvenile defendant].” Id. at 1216, 1217.7
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7
Cf. Commonwealth v. Kemmerer, 33 A.3d 39, 43-44 (Pa. Super. 2011)
(determining that the appellant’s constitutional right to confront witnesses
against him was not violated where “[the victim] … testified at both the
pretrial TYHA hearing, and at trial via closed circuit television, regarding
[the a]ppellant’s conduct, and [the a]ppellant likewise had ample
opportunity to confront and cross-examine [the victim]”) (emphasis added);
Commonwealth v. Charlton, 902 A.2d 554, 560-61 (Pa. Super. 2006)
(“Here, unlike Crawford, the record reveals the victim testified at length
regarding the underlying events at both the pretrial competency hearing
and the jury trial, and [the] appellant had more than ample opportunity to
(Footnote Continued Next Page)

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While the victim’s inability to communicate regarding the alleged

incident at issue in the case sub judice was not as acute as the victim’s

behavior in In re N.C., we conclude that Juvenile in this case was similarly

denied an opportunity for effective cross-examination.8 Like the victim in In

re N.C., the victim here did not provide any testimony regarding the alleged

incident. Further, the juvenile court determined that the victim’s lack of

testimony regarding the alleged incident was not due to lack of memory, but

because she declined to testify about it. See TCO at 7-8.9 Accordingly, we

agree with the juvenile court that “Juvenile has not had a full and fair

opportunity to cross-examine the victim which will deny [] Juvenile’s right to

confront [] Juvenile’s accuser.” Id. at 7. Therefore, the juvenile court did

_______________________
(Footnote Continued)

confront and cross-examine her in each instance. Accordingly, we do not
find the concerns of Crawford are implicated in this case.”) (emphasis
added; citations omitted).
8
In fact, Juvenile claims that “[n]ot only was there no opportunity for
‘effective’ cross-examination, there was no opportunity for cross-
examination at all given that no evidence of any crime was established.”
Juvenile’s Brief at 6. Moreover, the juvenile court points out that “the
victim’s testimony is not only vital but evidently the only evidence that the
Commonwealth possesses in this matter linking [] Juvenile to this alleged
crime.” TCO at 6.
9
The Commonwealth acknowledges that the victim “was unable and
unwilling to provide details surrounding the interview [at the Child Advocacy
Center] or the allegations.” Commonwealth’s Brief at 6.

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not err or abuse its discretion in precluding the admission of the videotaped

statement.10

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/12/2017

____________________________________________

10
As an alternative argument, the Commonwealth claims that the
videotaped statement should be admitted as a prior recorded recollection
under Pa.R.E. 803.1(3). Commonwealth’s Brief at 14-15. Notwithstanding
the constitutional issue discussed above, because the trial court found that
the victim declined to testify regarding the alleged incident — and was not
simply unable to recall it — we agree with the trial court that this hearsay
exception does not apply, and we do not delve into it further. See TCO at 7-
8.

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