The Superior Court has decided the case of Commonwealth v. Strafford. This decision clarifies 42 Pa. C.S.A. § 5985, which governs when a child-victim's out-of-court statement may be introduced by the prosecution under the Tender Years Hearsay Exception and when a child-victim may testify via closed-circuit television instead of in open court.
The Facts of Commonwealth v. Strafford
In Strafford, prosecutors alleged that the defendant sexually abused the complainant, who was eight years old, between June 2013 and December 2014. According to the complainant, the defendant would frequently stay over at the complainant’s home. During these overnight visits, the defendant would regularly touch the complainant’s genitals and perform oral sex on him. In December 2014, the complainant disclosed to his older brother and his mother that the defendant was molesting him. Upon hearing this, the mother called the police. Police arranged for the complainant to provide a video-recorded statement to a child forensic interviewer.
Prosecutors charged the defendant with Indecent Assault of a Person less than 13 years of age, Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with a Child. On March 18, 2015, the Commonwealth filed a petition to admit out-of-court statements under the Tender Years Hearsay Exception and a Motion to Allow a Child Witness to Testify Under Pennsylvania Uniform Child Witness Testimony by Alternative Methods Act. The trial court granted both of these motions.
Following a jury trial, the court convicted the defendant of the above-mentioned charges. The court sentenced him to six to twelve years' incarceration followed by five years probation. The defendant will also have to register as a sex offender upon his release. Because the defendant was found guilty of enumerated Tier III offenses, he will be required to register with the Pennsylvania State Police for life. On November 18, 2016, he filed a timely appeal.
What is the Tender Years Hearsay Exception?
42 Pa. C.S.A. § 5985.1 provides the Tender Years Hearsay Exception which was at issue in this appeal. The Tender Years Hearsay Exception to the rule against hearsay applies to children who are twelve years or younger at the time of the statement. It permits prosecutors to introduce some previously recorded statements from these children which would ordinarily be hearsay. However, this does not mean that all statements made by children twelve or younger qualify for this exception. Specifically, it only applies to certain offenses (i.e. cases involving sexual assault). Additionally, the statement that is to be introduced must be relevant and have sufficient indicia of reliability.
A court will make a determination as to whether or not the statement has the sufficient reliability. To make this determination, the court will look at the time, circumstances, content of the statement, the statement’s spontaneity, the declarant’s mental state, consistency in repetition, and lack of motive to fabricate. The main consideration for a trial court is to determine whether the statement is reliable. In making the determination, the trial court is granted significant leeway in admitting this statement. A trial court’s decision will only be overturned on appeal if the defendant is able to show that the trial court abused its discretion. Typically, this is very difficult standard to show and thus the trial court will likely not be overturned if it allows said statement to be introduced. If the trial court concludes that the statement is relevant, reliable, and the child is going to testify at trial, then the prosecution may introduce the prior out-of-court statement pursuant to this exception to the hearsay rule.
Children Testifying by Contemporaneous Alternative Method
42 Pa. C.S.A. § 5985 allows for juvenile victims to testify via a closed circuit television in a criminal case. When this occurs, the prosecutor, judge, defense attorney, and other enumerated individuals may be allowed to be in the same room as the child witness. However, the defendant is specifically not allowed to be in the room. The defendant (and the jury) is able to watch and listen to the child’s testimony via closed circuit television, but the child witness will note able to see the defendant during his or her testimony. The defense attorney is still allowed to cross-examine the child.
However, before this can occur, the trial court must make a determination that if the child were to testify in the defendant’s presence, the child would suffer serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the trial court may observe or question the child inside or outside the courtroom; or hear testimony from a parent, custodian, or any other person that has dealt with the child “in a medical or therapeutic setting.”
Superior Court Holds that Trial Court Did Not Abuse Its Discretion in Allowing Child to Testify via Closed-Circuit Television and Admitting Out-of-Court Statement
In Strafford, the Superior Court held that the trial court did not abuse its discretion in allowing the child to testify via closed-circuit television and admitting the out-of-court statement. In terms of allowing the complainant to testify via closed-circuit, the Superior Court agreed with the trial court’s conclusion that the child would have suffered serious emotional distress had he testified.
In support of this conclusion, the Superior Court referenced the trial court’s opinion which stated that subsequent to the complainant’s disclosure, he would frequently have nightmares, wet the bed, and sleep with his parents. According to this mother, all of this was atypical of the complainant’s usual behavior. Additionally, when complainant was told he would need to testify, he would get moody and uncomfortable. Complainant also threatened to “run out of the room” if he saw the defendant. He also told his mother he did not want to see him. The complainant also had difficulty in school following this incident according to his mother. Based on these facts, the Superior Court found that the trial court did not abuse its discretion in allowing the complainant to testify via closed-circuit television.
Additionally, the Superior Court held that the trial court did not abuse its discretion when it granted the Commonwealth’s Tender Years Motion to admit the complainant’s out-of-court statements. The Superior Court reasoned that the complainant made a spontaneous statement to his brother about being molested by the defendant. Additionally, there was nothing on the record to suggest that complainant had a motive to fabricate these allegations. Accordingly, the Superior Court found that the trial court did not abuse its discretion when it allowed the complainant’s out-of-court statements to be introduced.
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