J-S03033-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SELINA PEREZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN SANTIAGO :
:
Appellant : No. 2352 EDA 2022
Appeal from the Order Entered August 15, 2022
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): 0C2107734
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 7, 2023
Jonathan Santiago (“Father”) appeals from the order awarding him and
Selina Perez (“Mother”) shared legal custody of their daughter, A.S., born in
May 2018, with Mother to have primary physical custody and Father to have
partial physical custody subject to an exclusion of a member of Father’s
current household. We affirm in part, vacate in part, and remand for further
proceedings consistent with this decision.
We summarize the relevant facts and procedural history from the
record. Mother and Father were never married but lived together with A.S. in
Father’s house in Philadelphia. See N.T., 8/15/22, at 142. In early July 2021,
Father began communicating with another woman, C.M. See id. at 254-55.
Mother and Father got into a fight over C.M., and, according to Father, Mother
punched him, got a knife, and damaged his property. See id. at 79, 152-53,
157-58, 160.
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Father filed for a petition for protection from abuse (“PFA”) order shortly
after the fight, and he obtained a temporary ex parte PFA order. See id. at
151-52. Mother moved into her own apartment.1
In August 2021, Father began moving into C.M.’s home in Montgomery
County, where she lived with her then-thirteen-year-old son, M.C. See id. at
254. By October 2021, Father was living full-time in C.M.’s home. See id. at
173. A.S. had a separate bedroom in the home next to M.C.’s bedroom.
Shortly before Father moved in with C.M. full-time, Mother was bathing
then-three-year-old A.S. As Mother washed A.S.’s genitalia, A.S. stated that
“M[.]” touched her “deto,” a term Mother and her family used for vagina or
private parts. See id. at 69-74. Mother initially believed that A.S. was
referring to A.S.’s cousin named M.2 See id. at 71. That evening, Mother
called that cousin’s mother (“Paternal Aunt”) and learned that C.M. also had
a son named M. See id. at 71.
Mother took A.S. to a hospital the following day. See id. at 29-30, 85.
Paternal Aunt went to the hospital and waited with A.S. while Mother was
speaking to the doctor. See id. at 33. A.S. told Paternal Aunt that “[M.]
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1 Mother had an apartment in Philadelphia. By the time of the hearing, Mother
moved to Delaware County.
2The record indicates that when reporting the inappropriate touching, A.S.
only used the first name, “M.,” which was the first name of C.M.’s son, with
whom Father lived, and A.S.’s cousin. There is no indication in the record
before us that A.S. specifically identified which M. had inappropriately touched
her.
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touched her on her booty” as A.S. patted her own buttocks. Id. A.S.’s
paternal grandmother (“Paternal Grandmother”) testified that a few days
later, she was bathing A.S., when A.S. told her, “[M.] touched me.” See id.
at 51, 54-55. There were no facts in the trial record as to when this event
occurred or even an approximation of timing in relation to when Mother,
Paternal Aunt, and Paternal Grandmother obtained the information from A.S.
Shortly after learning of these reports, Mother filed a custody complaint
seeking primary physical custody and sole legal custody of A.S. From October
2021 to November 2021, Mother withheld A.S. from Father because she did
not want A.S. to be near M.C. See id. at 100-01. When Mother told Father
about the reasons for keeping A.S. from him, Father did not believe the
reports. See id. at 101. However, Father managed to regain physical custody
of A.S.
Mother filed an amended custody complaint due to her “continued
concerns about [A.S.]’s safety in the presence of [M.C. in C.M.’s home].”
Amended Complaint for Custody, 12/6/21. From December 2021 to January
2022, Father withheld A.S. from Mother. See N.T., 8/15/22, at 101.
In January 2022, the trial court entered a temporary agreed-upon order
for Mother and Father to share legal and physical custody of A.S.. Father
subsequently filed a counterclaim for custody and moved for a mental health
assessment and a home investigation of Mother. The trial court ordered, inter
alia, that each party submit to a psychological evaluation, if they could acquire
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one at a cost of under $500 each, or to mutually agree to submit a custody
evaluation. Neither party underwent a psychological evaluation or a custody
evaluation.
In August 2022, the trial court held a hearing on Mother’s and Father’s
custody claims. Mother and Father discussed Mother’s intent to admit
testimony concerning A.S.’s reports of being inappropriately touched by “M.”
pursuant to the Tender Years Act.3 Father objected on the basis of “hearsay”
and the trial court’s failure to hold a pre-trial hearing. The trial court reserved
ruling on Mother’s proffer and Father’s objections until it examined A.S. See
id. at 7-12. During opening arguments, Father’s counsel stated that Father
intended to testify concerning Mother’s mental health. However, the trial
court ruled it would not hear testimony regarding any mental health conditions
because neither party completed a custody or psychological evaluation before
the hearing; Father’s counsel responded, “Okay.” See id. at 24. Mother’s
counsel argued that Mother was seeking primary physical custody due to
Father’s failures to take any actions concerning A.S.’s reports that an
individual named M. had inappropriately touched her. See id. at 22-23.
Mother testified on her own behalf, and she presented testimony from
Paternal Aunt, Paternal Grandmother, and her boyfriend, A.G. Mother,
Paternal Aunt, and Paternal Grandmother all testified about A.S.’s reports that
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3 See 42 Pa.C.S.A. § 5985.1.
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M. had inappropriately touched her.4 Father testified on his own behalf, and
he presented the testimony of his girlfriend, C.M. Mother and Father both
testified about the difficulties they had communicating with each other. The
trial court also conducted an in camera interview with A.S., after which the
court determined that she was not competent to testify because she did not
understand the difference between a truth and a lie. See id. at 81.
During his case-in-chief, Father, in relevant part, explained that he
learned of A.S.’s reports that M. had inappropriately touched her in October
2021, but he claimed that Mother, Paternal Aunt, and Paternal Grandmother
fabricated the allegations. See id. at 260. Father asserted that Paternal Aunt
and Paternal Grandmother had ulterior motives to testify because he stopped
helping them financially and A.S. began spending more time with C.M. and
less time with Paternal Grandmother. See id. at 232-36. When asked to
explain what steps he and C.M. took after learning of A.S.’s report, Father
testified that he spoke to A.S. when he was able to see her in December 2021.
See id. at 174-76. C.M. testified that she did not speak with M.C. about the
allegation because she did not want to upset him. See id. at 275.
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4 As noted above, the trial court reserved ruling on Mother’s motions in limine
to admit A.S.’s reports for substantive purposes and Father’s objections based
on hearsay, A.S.’s incompetence as a witness, and taint. See N.T., 8/15/22,
at 7-14, 33, 53.
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At the conclusion of the hearing, the trial court admitted the testimony
about A.S.’s reports that M. touched as excited utterances.5 See id. at 311.
The trial court then entered on the record its findings regarding the best
interest factors. See id. at 318-25; see also 23 Pa.C.S.A. § 5328(a). The
trial court noted A.S.’s reports of abuse, DHS’s involvement, and Father’s PFA
petition against Mother, but did not make a finding of abuse by Mother or
M.C.6 The trial court, however, found Father’s lack of a response to A.S.’s
reports of abuse to be detrimental to A.S.’s best interests; conversely, the
trial court found that Mother responded appropriately to A.S.’s reports and
weighed Mother’s responses, among other factors, in her favor. See id. at
320-24. The trial court concluded that section 5328(a)(1), (4), (9), and (10)
favored Mother and that the remaining custody factors did not favor either
party. See id. at 318-24.
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5 The trial court, however, denied Mother’s offer of A.S.’s reports under the
Tender Years Hearsay Act and did not make any additional findings required
by section 5985.1(a)(1)(ii)(B) and (a.1) (requiring a finding of a child’s
unavailability to testify due to serious emotional distress that would
substantially impair the child’s ability to communicate). See N.T., 8/15/22,
at 311.
6 There is no dispute that the Philadelphia Department of Human Services
(“DHS”) investigated A.S.’s reports of abuse. Although the trial court
sustained hearsay objections to the outcome of DHS’s investigation, see N.T.,
8/15/22, at 170, the court later stated that it was aware that DHS determined
that the allegations of inappropriate touching to be unfounded. See Trial
Court Opinion, 10/19/22, at 16.
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On August 15, 2022, the trial court entered the order awarding Mother
and Father shared legal custody, Mother primary physical custody, and Father
partial physical custody on alternating weekends. The trial court required that
M.C. not be present during Father’s custodial time. See Order, 8/15/22
(stating that Father’s custodial time “was to the exclusion of M.C.”). Father
timely filed a notice of appeal and concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed a
Rule 1925(a) opinion.
Father presents the following issues for review:
A. Whether the trial court erred and abused its discretion by
finding that hearsay testimony from the non-competent
[A.S.] was admissible, specifically as an excited utterance
exception per Pennsylvania Rule of Evidence 803(2)?
B. Whether the trial court erred or abused its discretion by
ordering, as a safety condition or otherwise, the exclusion
of M.C. from Father’s custodial periods without a finding or
evidence of an ongoing risk of harm to [A.S.] by M.C.?
C. Whether the trial court erred and abused its discretion by
ignoring and prohibiting evidence related to the safety and
best interests of [A.S]?
Father’s Brief at 6.
Our standard and scope of review of the trial court’s custody decision is
as follows:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it. . . . However, this broad
scope of review does not vest in the reviewing court the duty
or the privilege of making its own independent
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determination. . . . Thus, an appellate court is empowered
to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings; and
thus, represent a gross abuse of discretion.
Moreover,
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
The test is whether the evidence of record supports the trial
court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (internal citations omitted).
“[I]t is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether, based on the
evidence presented, given due deference to the trial court’s weight and
credibility determinations, the trial court erred or abused its discretion in
awarding custody to the prevailing party.” E.B. v. D.B., 209 A.3d 451, 468
(Pa. Super. 2019) (internal citation and some quotations omitted). To that
end, we have explained:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
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by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
D.Q. v. K.K., 241 A.3d 1112, 1117 (Pa. Super. 2020) (internal citation
omitted).
In his first issue, Father challenges the trial court’s admission, over his
hearsay objection, of A.S.’s reports that M. inappropriately touched her.
Father’s challenge to the trial court’s evidentiary ruling implicates the following
standard of review:
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. An
abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.
Wilson v. Smyers, 284 A.3d 509, 514 (Pa. Super. 2022) (internal citations
and quotations omitted). Further, an evidentiary ruling, even if erroneous,
must be prejudicial to the complaining party to constitute reversible error.
See A.J.B. v. M.P.B., 945 A.2d 744, 751 (Pa. Super. 2008).
Hearsay is an out-of-court statement offered for the truth of the matter
asserted. See Pa.R.E. 801. Hearsay is generally inadmissible unless it is
subject to one of the hearsay exceptions. See Pa.R.E. 802. “The rationale
for the hearsay rule is that hearsay is too untrustworthy to be considered by
the trier of fact,” Commonwealth v. Kriner, 915 A.2d 653, 656 (Pa. Super.
2007) (en banc) (internal citation and quotation marks omitted), and the
hearsay exceptions delineate certain classes of hearsay that are substantially
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more trustworthy and reliable to merit their consideration for the truth of the
matter assert in the out-of-court statements, see id.
One such exception is an excited utterance, which Rule 803(2) defines
as: “[a] statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” Pa.R.E. 803(2).
Spontaneity is the touchstone for determining the reliability and thus the
admissibility of an excited utterance, and our courts have likened an excited
utterance to an event speaking through the declarant rather than the
declarant speaking about an event.7 See Commonwealth v. Zukauskas,
462 A.2d 236, 237 (Pa. 1983). Factors relevant to the admission of an excited
utterance include:
1) whether the declarant, in fact, witnessed the startling event;
2) the time that elapsed between the startling event and the
declaration; 3) whether the statement was in narrative form
(inadmissible); and, 4) whether the declarant spoke to others
before making the statement, or had the opportunity to do so.
These considerations provide the guarantees of trustworthiness
which permit the admission of a hearsay statement under the
excited utterance exception.
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7 Under the common law, the requirement of spontaneity is a question which
turns on the circumstances of each case and is relaxed when the child
declarant is the victim of a sexual assault. See Commonwealth v.
McEachin, 537 A.2d 883, 889 (Pa. Super. 1988). While relaxed for child
victims of sexual assault, McEachin does not countenance admitting hearsay
statements when the record lacks a foundation for the out-of-court statement
as an excited utterance, or when, as here, the statement or variations thereof
were given to three different people at three different times and none of the
witnesses discussed the timing of the reports in relation to purported exciting
event.
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See Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003)
(internal citations and emphasis omitted). Except for the requirement that
the declarant witnesses a startling event, no one factor is dispositive. See id.
Rather, a court must consider the factors in all the surrounding circumstances
to determine whether a statement is an excited utterance. See id.
To admit an out-of-court statement as an excited utterance, there must
be an event that is “startling.” Pa.R.E. 803(2), Comment. An excited
utterance itself, however, does not establish that a startling event occurred.
See Commonwealth v. Keys, 814 A.2d 1256, 1259 (Pa. Super. 2003); see
also Commonwealth v. Murray, 83 A.3d 137, 157-58 (Pa. 2013) (noting
that the common law definition of an excited utterance is still applicable to
Rule 803(2), but concluding that the circumstances surrounding a statement
may be sufficient to establish the existence of a sufficiently startling event).
Where the circumstances surrounding an excited utterance do not indicate
that the startling event occurred, an excited utterance cannot be admitted as
an exception to the hearsay rule. See Keys, 814 A.2d at 1259.
Father claims that the trial court erred in admitting A.S.’s reports that
M. inappropriately touched her as substantive evidence that M.C. abused A.S.
He asserts that the trial court lacked a proper foundation to admit the reports
as excited utterances because no independent evidence corroborated that a
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startling event occurred.8 He further claims that there was no basis to
determine how much time elapsed between the alleged touching and A.S.’s
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8 The concurring and dissenting memorandum asserts, in part, that Father
waived his challenge to the trial court’s determination that A.S.’s reports
constituted excited utterances. The unconventional procedures followed in
this case makes this analysis problematic.
Here, the parties and the trial court all recognized that A.S.’s reports, to be
admitted for the truth of the matters asserted therein, constituted hearsay
that must satisfy an exception. The concurring and dissenting memorandum
does not mention that Father’s motion in limine and pre-trial arguments stated
objections to “hearsay,” as well as Mother’s intended offer under the Tender
Years Act. Compare Motion in Limine, 8/15/22, at 2; N.T., 8/15/22, at 8,
with Concurring and Dissenting Memorandum at 3-4. While Father’s further
arguments regarding taint and the need for a pretrial hearing were muddled,
there is no doubt that Father stated hearsay objections before the admission
of the challenged evidence as required by Pa.R.E. 103(a)(1). See N.T.,
8/15/22, at 33, 53. In response to Father’s hearsay and other objections, the
trial court repeatedly reserved ruling until it examined A.S. in camera. See
id. at 11, 33, 53, and despite referring to the possible application of the
exited utterance exception, see id. at 32, the court did not ask or require
Mother, as the proponent of the evidence, to lay a proper foundation. Under
these circumstances Father’s decision not to object a fifth time to hearsay
when Mother testified, but before the trial court examined A.S. was reasonable
under the circumstances.
To the extent the concurring and dissenting memorandum also criticizes
Father for not specifying the basis of his hearsay objections, see Concurring
and Dissenting Memorandum at 3 (noting that Father objected to hearsay but
did not cite any specific grounds), that criticism is misplaced. It is the
proponent of hearsay evidence who must establish that an exception applies
to admit an out-of-court statement for the truth of the matter asserted. See
Adams v. Rising Sun Med. Ctr., 257 A.3d 26, 36 (Pa. Super. 2020).
Here, Mother was the proponent of the evidence, and she bore the burden of
establishing that a valid hearsay exception applied. The record here shows
Mother relied solely on the Tender Years Act to admit testimony concerning
A.S.’s statements. It was the trial court that sua sponte raised and then
decided the evidentiary issue. The trial court, not Mother, first suggested that
(Footnote Continued Next Page)
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reports, or whether A.S. had an opportunity to deliberate or talk to others
before making the reports. Father concludes that A.S.’s reports lacked any
indicia of reliability to admit them for the truth of the matter asserted and that
Mother’s, Paternal Aunt’s, and Paternal Grandmother’s testimony about her
reports were equally unreliable due to their biases against him. Father
continues that the improper admission of A.S.’s reports prejudiced the trial
court’s decision to impose safety conditions on Father’s custodial time and the
court’s findings that several section 5328 factors favored Mother. See
Father’s Brief at 41-43.
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A.S.’s reports might be considered for the truth of the matters asserted under
the excited utterance exception. See id. at 32. At no point during the hearing
did Mother argue that the A.S.’s reports constituted “excited utterances,” or
did the trial court require Mother to lay a proper foundation. It was only at
the close of the testimony that the trial court, not Mother, who propounded
that the evidence of A.S.’s reports were admissible as excited utterances
without further discussion of the foundations for its ruling. The concurring
and dissenting memorandum thus minimizes the unusual procedure wherein
the trial court, not Mother, acted as the actual proponent of the evidence.
Lastly, although it would have been better practice for Father’s counsel to
respectfully note an objection to the trial court’s own suggestions and specific
ruling that A.S.’s reports were excited utterances, because counsel preserved
his objections that A.S.’s reports were hearsay if considered for the truth of
the matter asserted, he is entitled to a review of his claim. See Pa.R.E.
103(a)(1); cf. Commonwealth v. Mitchell, 902 A.2d 430, 456 n.18 (Pa.
2006) (declining to find waiver of a challenge to the admission of evidence
under the state-of-mind exception to hearsay where the defendant’s counsel
raised a standing hearsay objection at the beginning of a witness’s testimony
regarding a victim’s diary entries but later objected on other grounds, i.e., the
basis that the evidence was not contemporaneously recorded or was too
remote).
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The trial court reasoned that A.S.’s reports had sufficient indicia of
reliability because they were spontaneous, unsolicited, and consistent, noting
that, on two occasions, A.S. reported the inappropriate touching as Mother
and Paternal Grandmother washed A.S.’s private areas. See Trial Court
Opinion, 10/19/22, at 10-12. The trial court emphasized that Father’s own
sister and mother, Paternal Aunt and Paternal Grandmother, testified about
A.S.’s reports. See id. at 11. The trial court continued that even if A.S.’s
reports were not excited utterances, her reports were,
not used in any way against the alleged perpetrator. It was
absolutely necessary for this court to be aware of the prior
allegation in order to craft an order that was in the best interest
of [A.S.]. What most concerned this court was not necessarily the
veracity of the statement but rather that the statement was in fact
made by [A.S.] and that Father categorically refused to believe
his daughter.
Id. at 13.
Following our review, we conclude that the trial court erred in admitting
A.S.’s reports that M. inappropriately touched her as excited utterances.
Mother, as the proponent of A.S.’s reports for the truth of the matter asserted,
did not establish a foundation to determine whether the startling event
occurred, how much time elapsed between the event and A.S.’s disclosure, or
whether A.S. had talked to, or had an opportunity to talk to, others before
making her initial report to Mother, nor did the trial court discuss these factors
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when ruling sua sponte that A.S.’s reports constituted excited utterances.9
See Keys, 814 A.2d at 1259. Keys provided that, without an appropriate
direct or circumstantial foundation in the record, a proffered excited utterance
alone cannot be admitted to establish that the exciting event actually
occurred. See id. In the absence of any information regarding the timing of
this event in relation to A.S.’s report to Paternal Aunt, Paternal Grandmother,
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9 Nothing in the record shows when A.S. made the reports in relation to the
last time M.C., or any other person named M., would have had an opportunity
to have contact with A.S. Paternal Aunt suspected M.C. based on her unease
with the fact that M.C., who was six-feet tall and weighed over 200 pounds,
would fall asleep in the same bed as C.M. and Father. See N.T., 8/15/22, at
45.
Given the absence of an appropriate proffer by Mother or any additional record
evidence of a foundation to consider A.S.’s reports as excited utterances, the
concurring and dissenting memorandum’s reliance on McEachin and
Commonwealth v. Bibbs, 970 A.2d 440 (Pa. Super. 2009), to conclude that
the trial court appropriately considered Paternal Aunt’s, Paternal
Grandmother’s, and Mother’s testimony about A.S.’s reports for the truth of
the matters asserted is unpersuasive. In both Bibbs and McEachin, there
was sufficient evidence actually put on the record that supported the
admission of the excited utterances, namely, that an exciting event occurred,
the alleged perpetrator recently had access to the victim, and the victim, even
if a child, reported the abuse within a reasonable time. See Bibbs, 970 A.2d
at 454 (holding that an adult shooting victim’s report to a responding officer
that “Bill” shot him was an excited utterance where there was no evidence
that people who already spoke to the victim impacted the victim’s statement,
the police officer to whom the statement was made responded within minutes
of a dispatch, and the victim was sitting on a sidewalk bleeding from an
apparent gunshot wound); McEachin, 537 A.2d at 890 (noting the relaxed
standard of spontaneity for child-victims of sexual assault and concluding that
among other circumstances that a five-year-old victim’s report to his mother
that a school employee molested him occurred approximately two-and-one-
half hours after the child returned from school and the child’s parent observed
he was behaving strangely). Here, as noted above, there was no proffer or
foundation for admitting A.S.’s reports as excited utterances.
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and Mother, we are constrained to conclude that the trial court abused its
discretion in admitting A.S.’s reports for their truth under the excited
utterance exception.
Nevertheless, the trial court also reasoned that it did not use the
evidence to determine that abuse occurred or that M.C. perpetrated the abuse.
See Trial Court Opinion, 10/19/22, at 13. Instead, the trial court focused on
Father’s responses to A.S.’s report. See id. Because an evidentiary ruling
must be erroneous and prejudicial to merit appellate relief, see A.J.B., 945
A.2d at 751, we will continue to examine Father’s claims of reversible error in
the context of his challenges to the trial court’s restriction on his partial
physical custody and award of primary custody to Mother.
In his second issue, Father asserts that the trial court abused its
discretion by requiring Father to exclude M.C. from his custodial times. A trial
court may impose restrictions on child custody awards based on the
agreement of the parties or upon a request from one of the parties. See
Fatemi v. Fatemi, 489 A.2d 798, 801-02 (Pa. Super. 1985); see also
Ferencak v. Moore, 445 A.2d 1282, 1286-87 (Pa. Super. 1982). When a
party moves for a restriction, that party must show that without the
restriction, custody with the other parent will have a detrimental impact on
the child. See J.R.M. v. J.E.A., 33 A.3d 647, 653 (Pa. Super. 2011). “Once
a court concludes that the imposition of a restriction is necessary, it must
phrase the restriction in the least intrusive language reasonably needed to
safeguard the child. Broad or nonspecific restrictions will be invalidated in
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favor of narrowly focused, precise restrictions that are directed toward the
child’s welfare.” Fatemi, 489 A.2d at 801-02 (Pa. Super. 1985) (internal
citations omitted).
Additionally, the trial court may impose safety conditions pursuant to
section 5323(e), which provides:
[I]f the court finds that there is an ongoing risk of harm to the
child or an abused party and awards any form of custody to a
party who committed the abuse or who has a household member
who committed the abuse, the court shall include in the custody
order safety conditions designed to protect the child or the abused
party.
23 Pa.C.S.A. § 5323(e).
Father claims that the trial court erred or abused its discretion when it
imposed safety conditions pursuant to section 5323(e) without finding abuse
or an ongoing risk of harm to A.S. Father asserts that without A.S.’s hearsay
reports that M. inappropriately touched her, no evidence established an
ongoing risk of harm to A.S. in his household. Additionally, Father contends
that M.C. is not the only possible perpetrator because A.S. only reported that
M. had touched her, and A.S. has a cousin also named M. Father concludes
that the trial court’s imposition of safety conditions on his custodial time was
unreasonable because it impairs his ability to foster a relationship with A.S.
while he resides with C.M. and M.C and attempts to create a family-like unit.
Id. at 46.
The trial court addressed Father’s issue and noted that a finding of
ongoing risk of harm was not required when excluding a third party in the best
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interests of a child. See Trial Court Opinion, 10/19/22, at 9. The trial court
explained that it was “very concerned that Father did not take the appropriate
actions regarding [A.S.] and [M.C.].” Id. The trial court concluded that it
“crafted” an order “to ensure that the subject child would not be in the
presence of the older child with whom she shared no biological connection and
who was not a party to this case.” Id.
Following our review, we conclude that the admission of A.S.’s reports
for the truth of the matter asserted as excited utterances prejudiced the trial
court’s decision to impose the restriction on Father’s partial custody of A.S.
Although the trial court did not refer to section 5323(e), we note that a safety
condition pursuant to that section would be improper because the only
evidence of abuse or an ongoing risk to A.S.’s safety was A.S.’s hearsay
reports that M. inappropriately touched A.S. on her vagina or buttock. As
discussed above, Mother did not establish a foundation for the admission of
A.S.’s reports for the truth of the matters asserted. Further, A.S. did not
specifically identify M.C. as the perpetrator, and our review reveals no other
competent evidence in the record to support a finding that A.S. had identified
M.C. as the perpetrator.
To the extent the trial court imposed a restriction to ensure Father takes
reasonable measures to address A.S.’s reports and safeguard her welfare, we
appreciate the trial court’s concerns and agree that it is in A.S.’s best interest
that Father believe A.S.’s reports until there is a reasoned and factual basis to
conclude that A.S.’s reports did not involve M.C. However, nothing in the
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current record establishes a basis for the trial court to determine whether M.C.
bore responsibility for A.S.’s report or engaged in conduct amounting to
inappropriate touching or abuse of A.S. Indeed, when Mother argued for a
restriction on Father’s custodial time, she requested that M.C. not be in the
presence of A.S. “until more is understood about what happened and what’s
going on[, o]r at least until A.S. has had some degree of therapy to find out
what’s happening with her.” N.T., 8/15/22, at 314.
Thus, the trial court’s exclusion of M.C. was overbroad in light of the
competent evidence of record. See J.R.M., 33 A.3d at 653 (vacating
restrictions when the trial court’s findings did not support the court’s
restrictions on periods of partial custody); Fatemi, 489 A.2d at 802 (vacating
a prohibition that a mother not have male companions present when
exercising physical custody where the father only offered vague allegations
that mother’s relationships caused her to neglect a child). The exclusion of
M.C. does not allow for Father to take appropriate steps to address A.S.’s
reports of abuse or allow additional supervised or therapeutic contacts to
determine whether abuse occurred in Father’s household. Moreover, the trial
court did not provide a mechanism for Father to lift the restriction if M.C. did
not abuse A.S. or engage in other improper conduct that caused A.S.’s reports.
For these reasons, we vacate the restriction completely excluding M.C.
during Father’s custodial time and remand this matter to the trial court for
further consideration of whether such restrictions are necessary, and if so, to
fashion a narrowly focused and more precise restriction “using the least
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intrusive language reasonably needed to safeguard” A.S. Fatemi, 489 A.2d
at 801. The trial court, upon remand, may hold any additional hearings or
receive additional evidence it deems necessary to render a proper decision on
the necessity, scope, or duration of a restriction upon Father’s periods of
physical custody of A.S. The parties, similarly, are free to present the trial
court with any agreement they reach as to reasonable restrictions on Father’s
periods of custody. See id. (noting that the trial court may impose restrictions
based on the agreement of the parties).
In his third issue, Father contends that the trial court erred in its analysis
of A.S.’s best interests. It is well settled that the primary concern in any
custody case is the best interests of the child. “The best interests standard,
decided on a case-by-case basis, considers all factors which legitimately have
an effect upon the child’s physical, intellectual, moral and spiritual well-being.”
Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (internal citation
omitted).
Section 5328(a) enumerates the custody factors a trial court must
consider when assessing a child’s best interests, and the trial court must
consider “[a]ll of the factors listed in section 5328(a) . . ..” J.R.M., 33 A.3d
at 652 (emphasis in original). Section 5328(a) states:
(a) Factors.—In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
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(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
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(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
We have further explained:
Section 5323(d) provides that a trial court shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order. Additionally, section 5323(d) requires the trial
court to set forth its mandatory assessment of the sixteen [section
5328 custody] factors prior to the deadline by which a litigant
must file a notice of appeal.
In expressing the reasons for its decision, there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with [s]ection 5323(d).
A.V., 87 A.3d at 822-23 (internal citations and quotations omitted).
Father asserts that the trial court ignored uncontradicted evidence that
Mother: (1) blocked his attempts to communicate with her and A.S.; (2)
assaulted him, physically threatened him with a knife and damaged his
personal property while A.S. was in his home, (3) unilaterally made medical
appointments for A.S., (4) did not tell Father when A.S. was sick or taking
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medication, and (5) withheld documents necessary for him to schedule
appointments for her. Father also argues that the trial court improperly
denied him the opportunity to present evidence concerning Mother’s mental
health conditions. Father concludes that the trial court’s errors affected its
determinations under sections 5328(a)(1), (2), (9), (10), (13), and (15).
Initially, we conclude that Father has not preserved his contention that
the trial court erred in prohibiting him from testifying about Mother’s mental
health conditions. Father’s counsel, during opening arguments, stated that
Father intended to present evidence that Mother was bipolar and had mental
health issues. See N.T., 8/15/22, at 23-24. The trial court precluded such
evidence noting that neither party had complied with the trial court’s order to
undergo psychological or custody evaluations. See id. at 24. Rather than
offering proof to establish that Father had any admissible evidence concerning
Mother’s mental health diagnosis or condition, Father’s counsel responded,
“Okay.” Id. Therefore, Father has waived this issue for review.10 See
Pa.R.A.P. 302(a); Pa.R.E. 103(a)(2).
As to Father’s assertions that the trial court abused its discretion when
considering the section 5328(a) custody factors, the trial court concluded that
it properly considered the evidence as to all factors and made appropriate
credibility findings. See Trial Court Opinion, 10/19/22, at 15-16. As to section
____________________________________________
10 Moreover, even if we were to conclude that Father preserved this issue, he
proffered no basis to conclude that he had competent evidence or a proper
foundation to offer evidence of a diagnosis or opine about Mother’s mental
health condition.
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5328(a)(1), which party is more likely to encourage and permit frequent and
continuing contact between the child and another party, see 23 Pa.C.S.A.
§ 5328(a)(1), the trial court found this factor favored Mother. Our review
shows that the trial court credited Mother’s testimony that she has been
allowing A.S. to speak with Father and C.M. See N.T., 8/15/22, at 109, 319.
Father acknowledged that Mother allows him to FaceTime with A.S., though
he maintained that Mother would sometimes block his number. See id. at
198. Further, the trial court found credible Mother’s testimony that during the
time that Father withheld A.S. from Mother, from December 26, 2021, to
January 20, 2022, Father demanded to record each conversation they had and
withheld contact with A.S. unless Mother agreed to the recordings. See id.
at 101, 105, 319. The trial court concluded Father’s demand was “completely
unacceptable.” Id. at 319.
As to section 5328(a)(2), and (2.1), which pertain to present and past
abuse and DHS’s involvement, the trial court noted that DHS investigated
A.S.’s reports of inappropriate touching and that Father has a pending PFA
matter against Mother. See id. at 319. The court determined, however, that
Father had only obtained an ex parte order, based on unproven allegations.
See id. at 320. The court noted it considered the evidence that Mother abused
Father, but it did not give that evidence “a lot of weight.” Id.
Regarding section 5328(a)(9), which party is more likely to maintain a
loving, stable, consistent, and nurturing relationship with A.S., the trial court
weighed Mother’s responses to A.S.’s reports that M. had inappropriately
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touched her against Father’s failure to believe A.S., or take measures to find
out whether the allegations were true. The trial court found significant that
Father only talked to A.S., but there was no evidence that either he or C.M.
talked to M.C., and that there was no evidence whether M.C. was even aware
of “good touch, bad touch.” Id. at 322.
Similarly, as to section 5328(a)(10), which party is more likely to attend
to the daily physical, emotional, developmental, educational and special needs
of the child, the trial court determined that Mother’s responses to A.S.’s
reports, namely, that she believed A.S. and took reasonable measures to
protect A.S. weighed in favor of Mother and that Father’s responses weighed
against him. See id. at 323.
As to section 5328(a)(13), which relates to the level of conflict between
the parties and the willingness and ability of the parties to cooperate with one
another, the trial court found that the parties are in a “high conflict situation”
and that “the parties really need to learn how to communicate with each
other.” Id. The court noted that there is a high conflict situation between
both parties, and it did not expressly find this factor to favor either party. See
id.
Following our review, we conclude that Father’s arguments center on
the trial court’s assessment of the credibility of the witnesses and how it
weighed the evidence presented. Although Father would like this Court to
reweigh the evidence in his favor, this Court has held that “with regard to
issues of credibility and weight of the evidence, we must defer to the presiding
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trial judge who viewed and assessed the witnesses first-hand.” J.M.R. v.
J.M., 1 A.3d 902, 911 (Pa. Super. 2010). Because there was support in the
record for the trial court’s findings of fact and credibility, we will not disturb
the trial court’s findings. See E.B., 209 A.3d at 468.
Lastly, we return to Father’s first issue, namely, that the trial court’s
admission of A.S.’s hearsay reports prejudiced the trial court’s consideration
of the custody factors. We note that where a party offers an out-of-court
statement to show its effect on a listener, it is not being offered for the truth
of the matter asserted and, therefore, is not hearsay. See Commonwealth
v. Fitzpatrick, 255 A.3d 452, 458 (Pa. 2021) (noting that “[t]o constitute
hearsay, a statement first must be uttered out-of-court, and then it must be
offered in court for the truth of the matter asserted in the statement”); accord
In re Adoption of S.-A.T., 272 A.3d 480, 2022 WL 152469 (Pa. Super. 2022)
(unpublished memorandum at *5).11 Accordingly, we will not find reversible
error if the trial court considered the testimony concerning A.S.’s reports for
a proper evidentiary purpose and did not improperly rely on the truth of the
matter asserted when considering the custody factors. Cf. A.J.B. 945 A.2d at
751.
Having reviewed the entire record, the trial court’s findings of fact and
credibility at the hearing, the trial court’s Rule 1925(a) opinion, and the
parties’ arguments, we conclude that no relief is due as it relates to the trial
____________________________________________
11 See Pa.R.A.P. 126 (permitting citation to unpublished memorandum of this
Court filed after May 2019).
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court’s award of primary physical custody of A.S. to Mother. Even if the trial
court erred in admitting A.S.’s reports for the truth of the matter asserted,
the trial court, when granting Mother primary physical custody, appropriately
limited its consideration of those reports to non-hearsay purposes, that is, the
parties’ reactions to the reports, and not the substantive allegation that M.
inappropriately touched A.S. Thus, we find no error or prejudice affecting the
trial court’s award of primary custody to Mother and partial custody to Father.
See id.
In sum, we conclude that the trial court erred in admitting A.S.’s reports
of abuse as excited utterances and that error prejudiced the court’s decision
to exclude M.C. from Father’s periods of physical custody. However,
competent evidence supported the trial court’s decision to award Mother
primary physical custody and any error in the court’s ruling A.S.’s reports of
abuse constituted excited utterances did not prejudice the trial court’s
consideration of A.S.’s best interest pursuant to section 5328(a). As the trial
court noted, its concern was “not necessarily the veracity of the statement but
rather that the statement was in fact made by [A.S.] and that Father
categorically refused to believe [her],” Trial Court Opinion, 10/19/22, at 13,
and the court’s specific findings of fact at the hearing demonstrate that it did
not weigh A.S.’s reports for the truth of the matter asserted, but rather
Father’s disbelief of the reports. See N.T., 8/15/22, at 319-25. Thus, we
affirm the order to the extent it awarded primary physical custody to Mother,
but vacate its restriction to exclude M.C. from Father’s periods of physical
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custody and remand this matter for further proceedings consistent with this
decision.
Order affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished.
Judge Bowes concurs in the result.
Judge McCaffery files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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