Appeal from the Order of the Superior Court entered April 18, 2007 at No. 623 WDA 2006, affirming the Judgment of Sentence of the Court of Common Pleas of Jefferson County, Criminal Division, entered November 2, 2005 at No. CP-33- CR-0000419-2004. Order affirmed:
The opinion of the court was delivered by: Madame Justice Todd
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
RESUBMITTED: August 19, 2011
This case has been returned to this Court following the March 7, 2011 per curiam order of the United States Supreme Court, which vacated our prior decision in this matter and remanded the case for our reconsideration in light of the high Court's decision in Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143 (filed Feb. 28, 2011).
The facts and relevant procedural history are as follows.
As recounted in our prior opinion in Commonwealth v. Allshouse, 604 Pa. 61, 985 A.2d 847 (2009), on May 20, 2004, Appellant and M.R. ("Mother") were arguing in the home they shared with their three children. Appellant was shouting from the living room, and Mother was in the kitchen. The couple's 7-month-old twin sons, J.A. and M.A., were in a playpen in the living room, and their 4-year-old daughter, A.A., was playing nearby. Mother's 8-year-old son, R.R., who also lived in the home, had already left for school. Mother reported to police that, at one point, she heard a "squeak" as Appellant sat on a recliner in the living room and, minutes later, she heard him get up from the recliner. She then heard J.A. crying. N.T. Trial, 9/19/05, at 46-47. As Mother ran to the living room, she passed Appellant, who was heading upstairs. Mother observed that A.A. was now in the playpen, holding J.A.'s head on her lap. When Mother picked up J.A., "his arm flopped backwards." Id. at 147. Mother took J.A. to the emergency room, where it was determined that he had suffered a spiral fracture to the right humerus caused by sharp and severe twisting of the arm.
Hospital officials immediately contacted Jefferson County Children and Youth Services ("CYS"), and CYS caseworker John Geist arrived at the hospital and spoke with Dr. Craig Burke, the emergency-room physician who treated J.A. Dr. Burke opined that the spiral fracture of J.A.'s arm indicated abuse. Geist then spoke with Mother, and advised her that J.A. would need to be removed from the family home pending investigation. Mother agreed that J.A. and his siblings would stay with their paternal grandparents.
On May 27, 2004, Appellant suggested to Geist that "possibly [A.A.] had caused injury to [J.A.]." N.T. Hearing, 9/16/05, at 9. *fn1 Accordingly, that same day, Geist went to A.A.'s paternal grandparents' home to speak with A.A. Geist and A.A. sat and talked on the front porch of the house, while A.A.'s grandparents, siblings, and others were inside.
During the interview, A.A. told Geist that Appellant had caused J.A.'s injury.*fn2 After his interview with A.A., Geist spoke with his supervisor, and the two agreed to arrange an evaluation of A.A. by Dr. Allen Ryen, a psychologist. Dr. Ryen interviewed A.A. on June 8, 2004, and during the interview, A.A. again implicated Appellant in J.A.'s injury.*fn3
On June 11, 2004, Appellant was arrested and charged with aggravated assault, simple assault, endangering the welfare of a child, reckless endangerment, and harassment. On September 16, 2005, the trial court conducted a hearing pursuant to the Tender Years Hearsay Act ("TYHA"), 42 Pa.C.S.A. § 5985.1, to determine whether the statements given by A.A. to Geist and Dr. Ryen, admittedly hearsay, were admissible under the tender years exception to the hearsay rule.*fn4 Under the TYHA, certain out-of-court statements made by a child victim or witness may be admissible at trial if the child either testifies at the proceeding or is unavailable as a witness, and the court finds "that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability." 42 Pa.C.S.A. § 5985.1(a)(1).
Analyzing the statements under Crawford v. Washington, 541 U.S. 36 (2004), the trial court first noted that A.A.'s statements to Geist and Dr. Ryen fell "in between" testimonial and non-testimonial statements "because we do have some questioning." N.T. Hearing, 9/16/05, at 61. The court explained, however:
I'm going to find it's non-testimonial for these basis [sic]. I think we have to look at what an objective four-year-old of average intelligence would think. And Mr. Geist, as he appears today, he does not have on a uniform but carries a badge, but not a badge in the sense of police work.
Dr. Ryen has a psychological appointment in the office to believe that later these statements would be used in Court. I certainly do not think for this four-year-old that she could make the determination that it would be available for use later at trial.
Id. at 61-62. The trial court determined that A.A.'s statements to Geist and Dr. Ryen satisfied the requirements of the tender years exception to the hearsay rule, and, under Crawford, would be admissible at trial.
On September 19, 2005, Appellant filed a motion for reconsideration, asserting A.A.'s statements constituted testimonial hearsay that was inadmissible under Crawford. Following argument, the trial judge denied the motion, reiterating his opinion that, in determining whether questioning should be deemed testimonial in nature, "you have to look at it from the 4-year-old's point of view because the concern is reliability in that regard." N.T. Hearing, 9/19/05, at 3. On September 20, 2005, a jury convicted Appellant of simple assault*fn5 and endangering the welfare of a child;*fn6 he was acquitted of the remaining charges.
On November 2, 2005, Appellant was sentenced to one to two years in prison, plus fines, costs, and restitution. Appellant filed a post-sentence motion, and a hearing on the motion was held on January 12, 2006. On March 9, 2006, the trial court denied Appellant's motion to the extent he sought judgment of acquittal on his child endangerment conviction.*fn7 On April 3, 2006, Appellant appealed his judgment of sentence to the Superior Court, challenging, inter alia, the trial court's admission of A.A.'s statements to Geist and Dr. Ryen at trial.
With regard to the issues raised before this Court, the Superior Court agreed with the trial court that A.A.'s statement to Geist was non-testimonial in nature, and thus admissible under Crawford. The Superior Court concluded, however, that it could not determine, based on the record, whether A.A.'s statement to Dr. Ryen was testimonial because "it is impossible to determine what Dr. Ryen's primary purpose was in conducting the interview." Commonwealth v. Allshouse, 924 A.2d 1215, 1224 (Pa. Super. 2007). Nevertheless, the Superior Court opined that it was unnecessary to determine whether A.A.'s statement to Dr. Ryen was testimonial because, even if it was, admission of the statement was harmless error since Dr. Ryen's testimony was merely cumulative of other properly admitted testimony, and there was overwhelming "untainted evidence" to support the jury's verdict. Id. at 1224-25.
The Superior Court declined to address Appellant's additional argument that the trial court's application of the 2004 amended version of the TYHA, which provides that an out-of-court statement of a child victim or witness under age 12 is admissible at trial if, inter alia, the child is unavailable as a witness and the trial court determines the circumstances surrounding the statement provide sufficient indicia of reliability, violated the prohibition against ex post facto laws. The Superior Court determined that, even if it did, the trial court could have admitted A.A.'s statements as non-testimonial hearsay under Ohio v. Roberts, 448 U.S. 56 (1980), based on a finding that A.A.'s testimony contained particularized guarantees of trustworthiness. The Superior Court ultimately affirmed Appellant's judgment of sentence in a published opinion on April 18, 2007.
Thereafter, Appellant filed a petition for allowance of appeal, and, on October 22, 2008, this Court granted Appellant's petition with respect to the following issues:
1. Does the Superior Court's decision conflict with U.S. Supreme Court precedent on the confrontation clause thereby creating a direct conflict with another Superior Court decision?
2. Did the Superior Court disregard this Court's harmless error precedent by allowing the Commonwealth to discharge its burden of proving harmless error through a two-sentence footnote?
3. Did the Superior Court decision misconstrue the reach of Ohio v. Roberts, 448 U.S. 56 . . . (1980), and thereby insulate Pennsylvania's Tender Years Hearsay Act from an ex post facto challenge?
Commonwealth v. Allshouse, 598 Pa. 600, 959 A.2d 903 (2008) (order).
On December 29, 2009, this Court issued an opinion affirming the order of the Superior Court. In so doing, we rejected, inter alia, Appellant's argument that the trial court's admission at trial of A.A.'s statement to Geist violated Appellant's rights under the Confrontation Clause, concluding the challenged statement was non-testimonial because it was given during an ongoing emergency. Allshouse, 604 Pa. at 80, 985 A.2d at 858. Thereafter, Appellant filed a petition for writ of certiorari with the United States Supreme Court, and, on March 7, 2011, the high Court issued an order vacating our decision and remanding the case for further consideration in light of its decision in Michigan v. Bryant.*fn8 On May 31, 2011, this Court issued an order, sua sponte, allowing the parties to submit supplemental briefs to address the impact of the Supreme Court's decision. Both parties have submitted supplemental briefs; thus, we proceed to consider this case under the guidelines set forth by that Court.*fn9
The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const., amend. VI. This constitutional protection is known as the Confrontation Clause.*fn10 In 1980, the United States Supreme Court, in Ohio v. Roberts, supra, held that the Confrontation Clause did not bar admission of an unavailable witness's statement against a criminal defendant, provided the statement was surrounded by "adequate indicia of reliability." 448 U.S. at 66. Such indicia existed when the testimony being considered either fit within a "firmly rooted hearsay exception," or contained "particularized guarantees of trustworthiness." Id.
More than two decades after its decision in Roberts, the Supreme Court, in Crawford v. Washington, supra, overruled its Roberts decision. In doing so, the Crawford Court criticized the Roberts "indicia of reliability" test as a departure from the principles of the Confrontation Clause in two respects:
First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony. This often results in close constitutional scrutiny in cases that are far removed from the core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect against paradigmatic confrontation violations.
Crawford, 541 U.S. at 60 (emphasis original). The Crawford Court explained that, while it had "no doubt that the courts below were acting in utmost good faith" when finding reliability, [t]he Framers . . . would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh's-great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts' providing any meaningful protection in those circumstances.
Accordingly, the Crawford Court held the Confrontation Clause prohibits out-of-court testimonial statements by a witness, regardless of whether the statements are deemed reliable by the trial court, unless (1) the witness is unavailable, and (2) the defendant had a prior opportunity to cross-examine the witness:
Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.
Id. at 68 (emphasis added).
The Crawford Court expressly declined, however, to explain the distinction between testimonial and non-testimonial statements, stating "[w]e leave for another day any effort to spell out a comprehensive definition of 'testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. (footnote omitted).
Two years after the Supreme Court's Crawford decision, the Court had the opportunity to clarify the difference between testimonial and non-testimonial hearsay in Davis v. Washington, 547 U.S. 813 (2006). At issue in the consolidated appeal*fn11 in Davis were two separate statements. The first was a statement made by a victim of spousal abuse to a 911 operator; the second was a wife's statement to police officers dispatched to investigate a domestic disturbance, set forth in a battery complaint. In finding the statement to the 911 operator non-testimonial,*fn12 but the wife's statement to the police officers testimonial, the Davis Court set forth the following test for determining whether statements are testimonial or non-testimonial:
Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
The Court acknowledged that the above definition was not exhaustive and did not address all possible scenarios such as situations which do not involve interrogations in which a determination of whether a statement is testimonial or non-testimonial is required, explaining:
Our holding refers to interrogations because . . . the statements in the cases presently before us are the products of interrogations - which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily non-testimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.
Following Crawford and Davis, however, courts struggled with the vitality of Roberts with regard to non-testimonial hearsay. As noted above, the Crawford Court suggested that non-testimonial hearsay statements might be exempt "from Confrontation Clause scrutiny altogether." 541 U.S. at 68. In Davis, the Court characterized Roberts as having been "overruled" and noted that the Confrontation Clause's focus on testimonial hearsay must be viewed as marking not merely its "core," but its perimeter. 547 U.S. at 824. Most emphatically, in Whorton v. Bockting, 549 U.S. 406 (2007), the Court, in addressing the retroactivity of the Crawford decision, explained: "Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the meaning of the Confrontation Clause." 549 U.S. at 419. Noting "Crawford's elimination of Confrontation Clause protection against the admission of unreliable outof-court non-testimonial statements," the Court sounded the death knell of Roberts:
Under Roberts, an out-of-court non-testimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and ...