Appeal from the Order Entered February 13, 2012 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001470-2011
The opinion of the court was delivered by: Lazarus, J.
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
Michele Renae Hunter appeals from the trial court's order denying her pretrial motion in limine*fn1 seeking to exclude from evidence text messages (texts)*fn2 sent between her and her co-defendant Husband.*fn3 On appeal, we are faced with determining whether our Commonwealth's confidential spousal communications privilege, codified at 42 Pa.C.S. § 5914, extends to Hunter's texts.
Because the record reflects that the texts are being used in ongoing child abuse proceedings involving Hunter and the child-victim in the instant criminal case, Hunter could not have had a reasonable expectation that her communications would remain confidential. Therefore, we agree with the trial court that the section 5914 spousal privilege does not apply under the facts of this case and the texts are admissible at trial. Accordingly, we affirm.
In June 2012, Hunter was charged with simple assault (M1),*fn4 aggravated assault*fn5 (F-1) and endangering the welfare of a child (F-3).*fn6 The four-year-old victim, B.H., Jr., is Husband's biological son and Hunter's stepson. While in Hunter's care, B.H., Jr., suffered a severe brain injury (subdural hemorrhage), which led to cardiopulmonary arrest. The attending pediatrician on staff at the hospital where B.H., Jr., was taken for treatment opined that there is a high probability that he will suffer lasting brain damage as a result of the injury.*fn7 The doctor also noticed that B.H., Jr., had bruising over his entire back, consistent with hand prints, as well as on both arms and elbows. The doctor noted that child abuse was suspected.
Initially, Hunter told the police that on March 16, 2011, B.H., Jr., had been upstairs and had fallen and reopened an old cut on his chin. She also told the officers that the boy had passed out in the bathroom, fell, and was non-responsive and had difficulty breathing. Days later, Hunter told the authorities that she had not given accurate information regarding how the child became injured and that, in fact, on March 15, 2011, she had pushed the child down, causing him to hit his head. She said that he became unresponsive and that she was unable to rouse him by carrying him to the bathroom and splashing cold water in his face. She said that the boy remained relatively unresponsive ("limp") throughout the day, falling in and out of periods of responsiveness. He was unable to move his limbs or sit up on his own.
Hunter also told the authorities that throughout the day on March 15, she began sending Husband texts*fn8 at work, describing the boy's deteriorating condition over a 36-hour span. B.H., Jr., was unable to walk or sit up on his own that evening and was put to bed by Husband and Hunter, both of whom checked on him throughout the night. The next morning, March 16, B.H., Jr. was able to walk with some assistance, although he continued to exhibit many of the physical symptoms from the day before. That evening, as Husband carried his son into his bedroom, B.H., Jr. began gasping for breath and went into cardiac arrest. He was rushed to the hospital.
Hunter was charged with simple assault, aggravated assault and endangering the welfare of a child; Husband was charged with conspiracy to endanger the welfare of a child and endangering the welfare of a child. On October 17, 2011, Hunter filed an omnibus pretrial motion seeking to exclude from evidence the texts she sent to Husband on March 15th & 16th.
The trial court held a hearing on the motion on December 15, 2011.
Ultimately the trial court denied Hunter's motion. This ...