January 15, 2013
COMMONWEALTH OF PENNSYLVANIA APPELLEE
MICHELE RENAE HUNTER APPELLANT
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.
OPINION BY LAZARUS, 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 timely appeal follows.
This Commonwealth's statute regarding privileged confidential communications between spouses, which is central to this appeal, states:
Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.
42 Pa.C.S.A. § 5914 (enacted 1976). As noted, the only recognized exception to section 5914's privilege is when it is waived by the spouse asserting the privilege upon trial. Historically, the privilege was enacted to preserve marital harmony by encouraging free marital communication, allowing spouses to confide freely, and protecting the privacy of marriage. Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. 2001). For these reasons, the privilege may be invoked even after a marriage has dissolved.*fn9
Practically, it is important that courts recognize that excluding information may not always further the intended goal of a privilege and may, in fact, hinder the prosecution of legal proceedings intended to protect fragile members of society. One such instance is in the prosecution of child abuse cases when the perpetrator(s) involved are spouses and at least one is the parent of the minor child.
Pennsylvania's Child Protective Services Law (CPSL) recognizes that, in order to further important public policy, privileged communications may need to give way to the prosecution of child abuse. Under the CPSL, confidential communications between spouses are admissible in any proceedings regarding child abuse or the cause of child abuse. 23 Pa.C.S.A. § 6381(c).*fn10 Although not central to its holding, in Commonwealth v. Spetzer, 813 A.2d 707 (Pa. 2002), our Supreme Court recognized that:
[T]he CPSL is relevant to the construction of § 5914 in a more subtle and indirect fashion. The Court in [Commonwealth v.] May recognized that the question of what is a "confidential" communication turns in part on the reasonable expectation the declarant has that the communication will remain confidential. 656 A.2d [1335,] 1341-42 [Pa. 1995]. Even if it is assumed that § 6381(c) does not act directly to provide a broad child abuse exception to § 5914's application in criminal proceedings, it certainly affects what a spouse's "reasonable expectation" of continued confidentiality may be with respect to marital communication that reveal the previous or intended abuse and intimidation of a child.
Id. at 722.
In Spetzer, the Court found that the spousal communications at issue were not confidential based upon the fact that defendant's "persistent and sadistic statements" concerning his actual and contemplated crimes against his wife and her children "could not be rationally excluded [under the section 5914 privilege] . . . as the challenged communications 'did not arise from the confidence existing between the parties, but the want of it.'" Id. at 721. Although in this case neither side claims that Hunter and Husband's marriage was in a state of disharmony at the time the texts were sent, the Spetzer Court's commentary on the interplay of the CPSL and section 5914 is instructive to our holding today.
While communications between spouses are presumed to be confidential*fn11 under section 5914, Commonwealth v. Hancharik, 633 A.2d 1074, 1078 (Pa. 1993), it has long been recognized that whether a particular communication is privileged depends upon its nature and character and the circumstances under which it was said. Hunter v. Hunter, 83 A.2d 401 (Pa. Super. 1951). It is essential that the communication be made in confidence and with the intention that it not be divulged. May, supra at 1342. Moreover, it is the burden of the party opposing the privilege to overcome the presumption of confidentiality. Hancharik, supra at 1078.*fn12
In the instant case, we conclude that Hunter could not have reasonably expected her texts to remain confidential where she testified that they had been the subject of a Children and Youth hearing, N.T. Omnibus Hearing, 12/15/2011, at 33-34, and where the record reflects that Hunters' texts had, in fact, been at issue in an August county child welfare agency hearing that "likely contained information that would be material to [Hunter's] guilt or punishment [in the instant criminal proceedings]."
Defendant's Motion for Preparation and Release of Transcripts, 11/3/2011. Because the texts cannot be considered confidential under the facts of this case, section 5914 does not apply to exclude Hunter's texts from evidence.
Moreover, we find that our decision today provides some consistency in the application of section 5914 and our Commonwealth's spousal testimonial privilege, codified at 42 Pa.C.S.A. § 5913.*fn13 In 1989, the legislature enacted the section 5913 privilege, which provides an exception to the general prohibition of spouses testifying against each other when the criminal proceeding involves bodily injury or violence attempted, done or threatened upon the minor children of husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them. 42 Pa.C.S.A. § 5913(2).
The privilege in section 5913*fn14 is, without question, separate and distinct from the privilege at issue here, found in section 5914.*fn15
Hancharik, 633 A.2d at 1076. Despite their apparent differences, we find no rational basis for not having a child abuse exception under section 5914 as well. The lack of an exception under section 5914 not only trivializes the import of child abuse, but fails to recognize that the effect of admitting these communications outweighs any benefit in upholding the sanctity of the spousal privilege.
Section 5914 is a much more limited rule than that espoused in section 5913. Id. at 1077. The section 5914 privilege only bars a spouse's testimony if it pertains to a communication made by the party-spouse. By contrast, a testimonial privilege, like that found in section 5913, bars a court from compelling any testimony from a witness in a martial relationship with a party in a court proceeding. Whereas the section 5914 privilege outlasts both death and divorce, the section 5913 privilege only extends as long as the marriage.
Accordingly, even if Hunter's texts were not admissible under section 5914, under the child abuse exception in section 5913, Husband may be compelled to testify against Hunter at trial. Hancharik, supra (legislature's amendments to section 5913 have made it abundantly clear that spousal privilege simply does not exist in criminal proceedings where violence has been done or threatened upon a minor child in the care or custody of spouse/defendant). In fact, at Hunter's bail hearing, defense counsel indicated that Husband had already agreed to testify against Hunter in this criminal case. N.T. Bail Hearing, 8/23/2011, at 19.
It seems illogical to potentially hinder the Commonwealth's child abuse case by excluding at trial, as per section 5914, critical communications regarding that abuse made between spouses--especially where more than 90% of reported child abuse cases stem from abuse that occurred in the home.*fn16 Fortunately, in this case there was ample evidence to make a case for the prosecution, independent of the texts, primarily from Hunter's admissions to the police. However, in other cases where those "privileged" communications provide the sole basis for the criminal complaint against an alleged child abuser, the prosecution may be hampered in proving its case at trial. See Commonwealth v. Jones, 460 A.2d 739, 741-42 (Pa. 1983) (privileged marital communications between spouses may be used by police for purposes of securing arrest warrant for defendant-spouse; prohibition against using spouse's statement goes only to use at trial for conviction of defendant).
Instantly, we conclude that where a defendant-spouse is the alleged perpetrator in current child abuse proceedings*fn17 and where that abuse forms the basis of criminal proceedings against that defendant-spouse, the section 5914 privilege shall not apply at the defendant's criminal trial to preclude admission of spousal communications.*fn18 We believe that the spouse cannot maintain a reasonable expectation that the martial communications she made will remain confidential under such circumstances.*fn19 This holding not only modernizes the antiquated notion of preserving marital harmony above all else, but reinforces the significant purpose of protecting children from abuse and promoting the reporting of such abuse. Finally, creating a child abuse exception in section 5914 will promote more effective prosecution of such cases which also serves important public policies.*fn20