J-S64039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.C.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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:
APPEAL OF: B.C.H. :
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:
:
: No. 211 MDA 2017
Appeal from the Order Entered December 28, 2016
In the Court of Common Pleas of Lancaster County Juvenile Division at
No(s): CP-36-JV-0000525-2016
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 20, 2017
Appellant, B.C.H., appeals from a dispositional order adjudicating him
delinquent for committing involuntary deviate sexual intercourse (“IDSI”),1
aggravated indecent assault,2 indecent assault3 and simple assault.4
Appellant argues that the trial court erred in refusing to permit him to cross-
examine one of the victims, B.F., about her romantic interest in another boy
at the time of the incident. We affirm.
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3123(a)(1).
2 18 Pa.C.S. § 3125(a)(1).
3 18 Pa.C.S. § 3126(a)(2).
4 18 Pa.C.S. § 2701(a)(1).
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The juvenile court accurately recounted the evidence against B.C.H. as
follows:
The Commonwealth called victim M.B., victim B.F., and
Officer Nelson Renno as witnesses. While both victims
recounted consistent versions of what happened on the
day of the incident, their testimony was not identical. The
victims’ testimony was further corroborated by Officer
Renno’s testimony.
Victim M.B. testified that on June 30, 2016, she was
hanging out with [Appellant], [A.J.], and victim B.F., [A.J.]
left to go to a swim meet, and the remaining three
youth[s] went to [Appellant]’s house to continue hanging
out. They were all sitting on the futon in [Appellant]’s
house when [Appellant] attacked them. It started when
[Appellant] put a pillow over victim B.F.’s face, and victim
M.B. pulled him off of her. [Appellant] would grab one
victim by the neck, and the other victim would try to pull
[Appellant] off of the victim being attacked. During this
back and forth, victim M.B. testified that [Appellant] pulled
her shorts to the side and tried to sodomize her with a
black air pump, put his finger in her anus, and groped her
body. At one point, [Appellant] left the room and the
victims tried to leave, but could not get the door open.
Victim M.B. also testified that she and victim B.F. told
[Appellant] multiple times to stop and get off them, but he
would not. [Appellant] finally stopped when victim M.B.
pointed out the bruises on victim B.F.’s neck. At
[Appellant]’s instruction, the victims Google searched how
to get rid of bruises and learned that cold spoons in the
freezer and toothbrushes for circulation can help, and then
they proceeded to use these methods to try and lessen the
bruising. Victim B.F.’s grandmother picked up both victims
at [Appellant]’s house. Victim [M.B.] testified that victim
B.F. told her grandmother what happened that night, and
victim [M.B.] told her mother the next day, and then their
parents called the police. Victim M.B. further testified that
she was with victim B.F. when they were interviewed by
the police and wrote their written statements, but that she
and victim B.F. did not tell each other what to write in the
statement. The Commonwealth presented photographs of
bruises on both victims’ necks and victim B.F.’s thighs, a
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photograph of the black air pump, and a photograph of
[Appellant]’s living room. The [c]ourt found victim M.B.’s
testimony credible.
Victim B.F.’s testimony regarding the incident on June
30, 2016 included many of the same details as victim
M.B.’s testimony. Victim B.F. testified that the assault
started when [Appellant] pushed her down into the futon
and put a pillow on her face. The next time he pushed her
down it was by her neck, and this is when the back and
forth of [Appellant] grabbing a victim’s neck and holding
her down while the other victim tried to pull [Appellant] off
began. During the attack, victim B.F. testified that
[Appellant] pulled up her shirt and was biting her stomach,
and was touching her thighs. She also saw [Appellant] put
the black air pump inside victim M.B.[’s anus]. Victim B.F.
also testified that victim M.B. could not get the door open
for them to leave, and that they used cold spoons and a
toothbrush to lessen the bruising. When her grandmother
arrived, they still could not open the door, and [Appellant]
opened it for them. Victim B.F. testified on cross-
examination [that] her grandmother noticed the bruising
on her neck, and she said it was a bug bite because she
did not want to tell her grandmother what happened yet.
Victim B.F. further testified that she was with victim M.B.
when the police interviewed them, they wrote their written
statements at the same time, but did not discuss what to
write with each other. The [c]ourt found victim B.F.’s
testimony credible.
Officer Nelson Renno, a state police trooper, testified
that during the search of [Appellant]’s home, they found a
black air pump, a pack of open toothbrushes on top of a
laundry appliance, and in what appeared to be
[Appellant]’s bedroom, a backpack that contained multiple
silver spoons. The Commonwealth presented photographs
of the toothbrushes and spoons in the backpack. The
[c]ourt found Officer Renno’s testimony credible.
Juvenile Ct. Op., 3/3/17, at 5-7. The court further summarized the evidence
thusly:
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[Appellant] forcibly inserted the pointed end of an air
pump and his finger into the anus of victim M.B., forcibly
grabbed the inner thighs and buttocks of victim M.B.,
forced his fingers into victim M.B.’s mouth, pushed victim
M.B. to the ground and grabbed her throat, making it hard
for her to breath[e] and resulting in bruising. [Appellant]
also . . . forcibly put his hands under the shirt and bra of
victim B.F., grabbed victim B.F.’s breasts and forcibly bit
victim B.F.’s neck and stomach, kissed her lips[] and
grabbed her inner thighs and buttocks.
Id. at 2 (citations omitted). Appellant testified and claimed that B.F.
consented to his conduct. N.T., 12/8/16, at 66-69.
The juvenile court adjudicated Appellant delinquent, found him in need
of rehabilitation and treatment, and committed him to a secure juvenile
facility. Appellant filed a timely notice of appeal, and both Appellant and the
juvenile court complied with Pa.R.A.P. 1925.
Appellant raises a single issue on appeal:
I. Did the [juvenile] court err in sustaining the
Commonwealth’s objection and not allowing [Appellant] to
cross-examine the victim[,] B.F.[,] on her romantic
interest in another boy, A.J., at the time of the incident,
where the testimony was relevant to show the victim’s bias
and motive to fabricate?
Appellant’s Brief at 5.
In juvenile proceedings,
[t]he scope and limits of cross-examination are largely
within the discretion of the trial court[,] and its actions
pertaining thereto will not be reversed in the absence of a
clear abuse of its discretion or error of law. Nevertheless,
“[c]riminal defendants have a constitutional right to
confront witnesses against them, which includes the right
to cross-examine. Cross-examination may be employed to
test a witness’ story, to impeach credibility, and to
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establish the witness’ motive for testifying.” It is well
established, therefore, “that a witness may be cross-
examined as to any matter tending to show the interest or
bias of that witness.” “It is particularly important that,
where the determination of a defendant’s guilt or
innocence is dependent upon the credibility of a
prosecution witness, an adequate opportunity be afforded
to demonstrate through cross-examination that the
witness is biased.
Interest of Dixon, 654 A.2d 1179, 1181 (Pa. Super. 1995) (internal
citations and some internal quotations omitted).
This Court has held with regard to cross-examination for the purpose
of showing bias or motive:
Generally, evidence of interest or bias on the part of a
witness is admissible and constitutes a proper subject for
cross-examination. It is well-settled law that cross-
examination directed toward revealing possible bias,
interest or motive of a witness in testifying against the
defendant is always relevant as discrediting the witness
and affecting the weight of his testimony.
Commonwealth v. Gentile, 640 A.2d 1309, 1313 (Pa. Super. 1994)
(internal citations omitted).
If the hearing judge errs in disallowing certain cross-examination, such
an error is subject to a harmless error analysis. The Pennsylvania Supreme
Court has stated that “an error can be harmless only if the appellate court is
convinced beyond a reasonable doubt that the error is harmless.”
Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). To determine
whether an error is harmless, “the uncontradicted evidence of guilt must be
so overwhelming, and the prejudicial effect of the improperly admitted
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evidence so insignificant by comparison, that it is clear beyond a reasonable
doubt that the error could not have contributed to the verdict.” Id. at 168.
Thus, an error is harmless if “the appellate court determines that the error
could not have contributed to the verdict.” Commonwealth v. Rush, 605
A.2d 792, 794 (Pa. 1992).
We agree with Appellant that the juvenile court erred in refusing to
permit him to cross-examine B.F. with regard to her romantic interest in A.J.
at the time of the incident, because it gave her a motive to fabricate her
testimony. Appellant described the incident as consensual. B.F. might have
feared that A.J. would be angry with her if he learned that the incident with
Appellant was consensual.
Nevertheless, we conclude that this error was harmless, because the
testimony of the other victim, M.B., and Officer Renno corroborated B.F.’s
testimony and overwhelmingly established the Commonwealth’s case. The
juvenile court credited M.B.’s detailed testimony that Appellant attacked her
and B.F. Appellant does not contend that M.B. had any possible bias or
motive to fabricate, and the record shows that M.B. and B.F. did not tell
each other what to write in their accounts of the incident. Moreover, Officer
Renno searched Appellant’s house and found the air pump that Appellant
used to penetrate M.B.’s anus and the spoons and toothbrush that the
victims used to treat their injuries. Thus, the juvenile court correctly
concluded:
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Since the substance of victim B.F.’s testimony was
confirmed by the testimony of other witnesses at the
adjudicatory hearing, the result at the hearing would not
have differed, and . . . the [juvenile] court’s refusal to
permit cross-examination of victim B.F. to reveal possible
bias or motive to fabricate had no impact on the outcome
of this case.
Juvenile Ct. Op. at 9.
Order affirmed.
Judge Shogan joins the Memorandum.
Judge Panella files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
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