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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37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.
CONCURRING/DISSENTING MEMORANDUM BY McCAFFERY, J.:
FILED AUGUST 7, 2023
I respectfully disagree with the Majority’s conclusion that the trial court
erred in admitting the child A.S.’s statement under the excited utterance
exception1 to the general rule against hearsay. Instead, I would conclude
Father has waived this claim, where he raises it for the first time on appeal.
Nevertheless, I join the Majority’s decision to vacate the restriction completely
excluding M.C. during Father’s custodial time and to remand for further
proceedings. Accordingly, I concur and dissent.
First, I would determine that because Father did not raise any hearsay
challenge to the child’s statement, this issue is waived. According to Father,
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1 Pa.R.E. 803(2).
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on January 20, 2022, his counsel received Mother’s notice of intent to
introduce statements made by the Child, A.S., pursuant to the Tender Years
Hearsay Act.2 Eight months later, on August 15, the same day as the custody
hearing, Father filed a motion in limine,3 objecting to admission of the Child’s
statements on the ground they were tainted by Mother’s “coach[ing].”4
Father’s Motion in Limine, 8/15/22, at 3.
At the beginning of the custody hearing, the parties presented
arguments on Father’s allegation of taint. N.T., 8/15/22, at 7-15. The trial
court stated it would hold the arguments under advisement until it interviewed
the Child. Id. at 12. The first witness, Father’s sister (the Child’s aunt)
testified the Child told her that M.C. touched her. Id. at 32-33. Father
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2 42 Pa.C.S. § 5985.1(a)(1)(i)-(ii). See Interest of D.C., 263 A.3d 326, 333
(Pa. Super. 2021) (as an exception to the general rule against hearsay, Tender
Years Hearsay Act provides: “a court may admit a child-victim’s out-of-court
statement for the truth of the matter asserted when (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 ‘is unavailable as a witness’”).
3 This motion in limine, along with other filings, were not included in the
original certified record. Upon the parties’ joint stipulation, filed in this Court,
that the filings should have been included, the trial court transmitted the
additional filings to this Court as a supplemental record.
4 See Commonwealth v. Cesar, 911 A.2d 978, 984 (Pa. Super. 2006)
(“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.”).
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objected to this testimony on the ground that the trial court, at that time, had
not conducted an in camera interview of A.S.5 Id. at 33. The trial court
responded it would hold the objection under advisement, and broached, for
the first time, the excited utterance exception: “[The Child’s statement] may
be considered an excited utterance[ ] exception to the hearsay rule.” Id.
Father did not respond to this statement. See id.
When the Child’s paternal grandmother testified the Child told her that
M.C. touched her, Father “renew[ed]” his objection with regard “to hearsay[,]”
without citing any specific grounds. See N.T. at 52-53. Father did not object
when Mother testified that Child stated M.C. had touched her. See id. at 71.
The next and only other reference to the excited utterance exception
arose following the close of evidence, when the trial court made the following
rulings:
[W]ith regard to tender years, I’m going to deny that because the
child did not qualify. And there was . . . no statement to be
bolstered or for there to be any testimony . . . in that regard.
However, I do find that under [R]ule 803(2) of
Pennsylvania [R]ules of [E]vidence, it does qualify as an
excited utterance. And I am going to permit those statements
to come in under the exception to the rules of evidence.
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5 The trial court conducted the off-record, in camera interview of A.S. later, at
that same hearing. N.T. at 80. As the Majority notes, the court found A.S.
not competent to testify. See id. at 81; Maj. Mem. at 5.
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N.T. at 311. Father’s counsel did not object to this ruling. See id. Instead,
Father challenged the excited-utterance reasoning for the first time in his
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. See Father’s
Concise Statement of Errors Complained of on Appeal, 9/14/22, at 2
(unpaginated).
“Issues not raised in the trial court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a). “Failure to raise a
contemporaneous objection to the evidence at trial waives that claim on
appeal. Further, a litigant may not raise a new theory for an objection made
at trial in his appeal.” Commonwealth v. T.B., 232 A.3d 915, 922 (Pa.
Super. 2020).
Because Father did not raise a timely objection to the trial court’s
reliance on the excited utterance exception, I would conclude he has waived
this issue for our review. See Pa.R.A.P. 302(a); T.B., 232 A.3d at 922.
Furthermore, Father’s brief does not point to the place in the record where he
preserved this issue. See Pa.R.A.P. 2119(e) (where an issue is not reviewable
on appeal unless preserved below, the argument section of a brief must cite
place in the record where issue was preserved). Therefore, I dissent from the
Majority’s decision to grant relief on a claim not raised before the trial court.
See Maj. Mem. at 12 (trial court erred in admitting testimony, as to A.S.’s
statements, under excited utterance hearsay exception), 15 (admission of this
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testimony prejudiced trial court’s decision to impose a restriction on Father’s
partial custody).
Moreover, on the merits, I would defer to the trial court’s discretion in
admitting or excluding evidence, and conclude the court did not act with bias,
prejudice, ill-will or partiality. See Wilson v. Smyers, 284 A.3d 509, 514
(Pa. Super. 2022). Pennsylvania Rule of Evidence 803(2) defines an excited
utterance 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). As the Majority notes,
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.
“Such a relaxation of the rule recognizes both the
likelihood of a young child’s inability to comprehend . . .
the assault and the possibility of the child’s hesitancy to
discuss the matter for fear of incurring punishment.”
See Commonwealth v. McEachin, 537 A.2d 883, 889-90 (Pa. Super. 1988)
(citations omitted); Maj. Mem. at 9 n.6.
Here, the trial court reasoned the Child had been in a bath for 10
minutes, but when Mother began to wash her “private areas,” the Child “made
an unsolicited statement” that M.C. had touched her “deto,” which was the
family’s word for vagina. Trial Ct. Op., 10/19/22, at 10-11. The trial court
reasoned the Child’s initial statement to Mother was “unsolicited and
spontaneous,” and thus found the Child “was still acting under the stress of
the event,” sufficiently invoking the excited utterance hearsay exception. Id.
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at 11. The trial court also considered the paternal grandmother’s similar
testimony — that when, during a bath, the grandmother washed the Child’s
“bottom,” the Child stated M.C. touched her. Id. at 11. Furthermore, the
paternal aunt testified she and Child were in the hospital emergency room,
talking about a toy the hospital staff had given her, when the Child stated
M.C. touched her “booty.” Id. The court found “[t]he consistency of [these]
statements[,] as well as the fact that Father’s own family [members were]
testifying on behalf of Mother[,] provided sufficient indicia of reliability[.]” Id.
at 11-12.
The Majority, however, concludes Mother failed to establish when or
whether the startling event occurred, how much time had elapsed until the
Child’s disclosure, and whether the Child talked to, or had the opportunity to
talk to, others before making the disclosure to Mother. See Maj. Mem. at 12.
In my opinion, the Majority’s application of these Rule 802(3) principles is
overly strict. Instead, especially as the Child was three years old at the time
of the statements, I would defer to the trial court’s ruling under the relaxed
standard for a finding of spontaneity. See McEachin, 537 A.2d at 889-90.
“It is ‘the spontaneity of . . . an excited utterance [that] is the source of
reliability and the touchstone of admissibility.’” Commonwealth v. Bibbs,
970 A.2d 440, 454 (Pa. Super. 2009) (citations omitted). The Child made the
statements, unprompted, to her mother and grandmother when they began
washing her genitals and bottom in the bath. I would not disturb the court’s
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finding that, although some unknown time had passed since the alleged
touching, the Child was at that point “under the stress of excitement that it
caused.” See Pa.R.E. 803(2).
On balance, however, I agree with the Majority’s decision to vacate the
restriction completely excluding M.C. during Father’s custodial time, and to
remand for the trial court to consider whether it is necessary to fashion a
narrower restriction that promotes investigation or resolution of Mother’s
allegations. See Maj. Mem. at 16. I agree the custody order does not provide
for Father to take appropriate steps to address Child’s reports of abuse, does
not allow supervised or therapeutic contacts to determine whether abuse
occurred in Father’s household, nor provides a mechanism to lift the restriction
should M.C. be found to not have abused the Child or engaged in other
improper conduct. See id.
I emphasize both parties failed to comply with the trial court’s directive
to undergo either a psychological assessment or custody evaluation. Although
Father’s counsel stated the parties could not afford a mental health
assessment, neither party explained why they did not comply with the
alternative provided — a custody evaluation. See N.T. at 23. Furthermore,
Father’s partner (who is M.C.’s mother) testified she did not discuss the
allegations with M.C., who was 14 years old at the time of the hearing. Id.
at 272, 275.
Accordingly, I concur and dissent.
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