Agrued November 28, 2012.
Appeal from the order of the Superior Court at No. 1829 MDA 2010 dated December 9, 2011, vacating and remanding the order of the Franklin County Court of Common Pleas, Criminal Division, at No. 28-CR-0000532-2009 dated 11/01/2010.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MADAME JUSTICE TODD. Former Justice Orie Melvin did not participate in the consideration or decision of this case. Mr. Chief Justice Castille and Messrs. Justice Eakin and McCaffery join the opinion. Mr. Justice Saylor files a concurring opinion in which Mr. Justice Baer joins.
MADAME JUSTICE TODD
In this appeal by the Commonwealth, we consider whether the Superior Court erred in holding the trial court was required to determine that the child victim was competent to testify under Pa.R.E. 601 prior to admitting her out-of-court statements into evidence pursuant to the Tender Years Hearsay Act (" TYHA" ), 42 Pa.C.S.A. § 5985.1.
We hold that a determination of a child's competency pursuant to Rule 601 is not a prerequisite to the admission of hearsay statements under the TYHA, and, therefore, we reverse the decision of the Superior Court and remand for further proceedings.
On October 17, 2008, Franklin County Children & Youth Services (" CYS" ) received an anonymous call regarding the welfare of A.W. (hereinafter " victim" ), the four-year-old daughter of Appellee Jay Lee Walter. A CYS caseworker, Leann Briggs, asked Appellee and his wife, the victim's mother, to bring the victim to the agency, so that Briggs could verify the child's safety. During an interview Briggs conducted with the victim, the victim indicated that she was afraid of Appellee because of " Chuckie," a name she used to refer to Appellee's penis. The victim told Briggs that Chuckie moves back and forth on top of her, and that Chuckie goes inside of her body, specifically, her vagina. The victim also told Briggs that Appellee made the victim take her clothes off, lie down, and then forced the family dog, " Baby," to lick the victim's vagina. Following Briggs' interview, the victim was placed in foster care on an emergency basis. Pennsylvania State Police Trooper Courtney Pattillo began an investigation, during which time she interviewed various witnesses, including Appellee. On October 20, 2008, Appellee was charged with rape of a child, two counts of involuntary deviate sexual intercourse with a child, indecent assault, and endangering the welfare of a child.
Thereafter, the Commonwealth filed a motion seeking to introduce certain statements made by the victim to third parties into evidence pursuant to the TYHA. The TYHA provides, in relevant part:
(a) General rule.--An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offense), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(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 either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
(a.1) Emotional distress.--In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate. In making this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian of any other person, such as a
person who has dealt with the child in a medical or therapeutic setting.
42 Pa.C.S.A. § 5985.1(a), (a.1). The Commonwealth also sought to have the victim testify by teleconference pursuant to 42 Pa.C.S.A. § 5945.
At a hearing on January 30, 2009 (" TYHA Hearing" ), the Commonwealth conducted an in camera evaluation of the victim, who by then had turned five. The trial court asked the victim a number of questions, including questions regarding her name, age, and living arrangements, and she appeared to give appropriate answers. However, when the Commonwealth asked the victim various questions related to her understanding of truth and lies, the victim gave a number of nonsensical or bizarre answers.
The Commonwealth presented the testimony of the CYS caseworker, Briggs, as well as testimony by the victim's foster mother (" Foster Mother" ), with whom the victim had been living since October 17, 2008. Foster Mother testified regarding the emotional effect court hearings and appearances had on the victim; specifically, Foster Mother testified that the victim became " very unsettled" and " very emotional" in the days following an appearance at the courthouse, and would suffer from nightmares for several days after attending court proceedings. N.T. Hearing, 1/30/09, at 42. On one occasion, immediately after a preparatory session with the prosecutor, the victim smeared feces on the walls of the house. Foster Mother stated that, in her view, requiring the victim to testify in front of Appellee would traumatize the victim.
Foster Mother also testified regarding an incident that occurred at the end of
October 2008, shortly after the victim moved in with the family. According to Foster Mother, the victim was on the toilet and Foster Mother was cleaning up after her when the victim suddenly asked, " is there anymore blood?" Id. at 39. When Foster Mother asked the victim what she meant, the victim replied, " there was blood when Daddy Jay sticks his finger in there." Id. Foster Mother recounted another occasion on which she was awakened as the victim screamed and ran into Foster Mother's bedroom. The victim was crying and shaking and stated that she was " afraid that daddy was going to bring Chuckie to her room," and that " Chuckie bites." Id. at 40. The victim told Foster Mother that " Chuckie is daddy's body's part," and drew a picture which indicated that that " Chuckie" was her father's penis. Id.
The Commonwealth next presented the testimony of Angela Morris, a family friend of the Walters. Morris testified that, around October 2007, she and her son were at a child's birthday party at which the victim was also a guest. During the party, the victim grabbed Morris' son's " private part." Id. at 50. When Morris confronted the victim about the behavior, the victim responded, " it was okay to do that; " " daddy says it's okay; " and that she " touch[es] daddy there." Id. at 50-51.
Diane Bulger, a neighbor and former friend of the family, also testified at the TYHA hearing. Bulger testified that, in October 2008, she went to the Chambersburg Mall with her son, the victim, Appellee, and Appellee's wife. Bulger testified that Appellee took the victim into the men's bathroom at the mall, and when the victim exited the bathroom, she was crying and stated, " don't let daddy hurt me down below." Id. at 61.
Another friend of the family, Rebecca Alkire, testified that, in May 2008, while she was babysitting the victim, she was in the process of changing the victim's diaper when the victim stated, " watch [your] fingers." Id. at 64. Concerned about the statement, Alkire later discussed it with the victim's mother, who explained that she and Appellee were trying to train the victim to use this phrase if someone tried to touch her in her vaginal area. Id. Alkire recounted another time, in July or August 2008, when the victim was watching cartoons at Alkire's house and Alkire tickled the victim. The victim immediately became tense, and Alkire asked the victim if anyone had ever touched her. The victim replied that her daddy touches her " pussy" with his " dick." Id. at 65.
On February 23, 2009, the trial court entered an order holding the victim was competent to testify, but was unavailable as a witness because testifying would cause her serious emotional distress that would substantially impair her ability to reasonably communicate to the jury. Trial Court Order, 2/23/09, at 2. The court, however, instructed the parties that the court's finding of the victim's competence at the TYHA hearing did not preclude Appellee from challenging the child's competency at later stages of the proceedings. The court further concluded the statements the victim made to the five adult witnesses (Briggs, Foster Mother, Bulger, Morris, and Alkire) who testified at the TYHA hearing, contained sufficient indicia of reliability to be admissible under the TYHA. Finally, the court granted the Commonwealth's motion to allow the victim to testify by contemporaneous alternative method.
A preliminary hearing was held on March 31, 2009, before a magisterial district judge (" MDJ" ) and the victim was called to testify outside of Appellee's presence. However, following questioning of the victim, the MDJ concluded the victim was not, in fact, competent to testify because,
inter alia, she repeatedly stated that it was a " good thing" to tell a lie. N.T. Hearing, 3/31/09, at 10. Nevertheless, the MDJ proceeded with the preliminary hearing, and the prosecutor called the same witnesses who previously testified at the TYHA hearing.
On July 19, 2010, a jury trial commenced, and the trial court permitted a defense witness to read into the record the victim's testimony from both the TYHA hearing and the preliminary hearing. The court also permitted the five adult witnesses to testify pursuant to the TYHA regarding the statements made by the victim. The jury convicted Appellee of all charges, and the trial court sentenced him to an aggregate term of 30 to 60 years incarceration. Appellee also was ordered to undergo an evaluation by the Sexual Offender Assessment Board, and, ultimately, was determined to be a sexually violent predator.
Appellee appealed his judgment of sentence. The Superior Court, in an unpublished memorandum opinion, vacated Appellee's judgment of sentence and remanded for further proceedings on the grounds that the trial court erred in admitting the victim's out-of-court statements pursuant to the TYHA after it had determined the victim was not competent to testify at the preliminary hearing.
Commonwealth v. Walter, 1829 MDA 2010 (Pa. Super. filed December 9, 2011). The court explained:
[T]he threshold issue of whether A.W. was a competent witness whose statements were admissible on any basis appears to have been overlooked. This question requires our consideration of the interaction between provisions of the [TYHA] that provide for admission of out-of-court statements of a child witness as hearsay evidence, see 42 Pa.C.S. § 5985.1(a)(2)(ii), and Pennsylvania Rule of Evidence 601(b), which requires disqualification of a child witness for factors related to immaturity. We conclude that although the [TYHA] permits admission of hearsay testimony to convey a child victim's out-of-court statements where the child is " unavailable" pursuant to subsection 5985.1(a)(2)(ii), a determination of unavailability under that section is not a substitute for the requisite evaluation and finding of competence. In short, the [TYHA] . . . presupposes that the witness has been determined to be competent within the meaning of Pa.R.E. 601 at the time he or she made the statements in question. Under no circumstances does a finding of unavailability under the [TYHA] transmute testimony not competent under Pa.R.E. 601 into admissible evidence capable of sustaining a criminal conviction.
Walter, 1829 MDA 2010 at 9-11 (footnote omitted).
In a concurring opinion, Judge Robert Freedberg concluded the trial court's initial determination at the TYHA hearing that the victim was competent was a clear abuse of discretion, and, furthermore, that " [t]he erroneous finding of competence impacted on the conclusion that there were sufficient indicia of reliability to admit the child's out-of-court statements."
Walter, 1829 MDA 2010 at 1 (Freedberg, J., concurring).
Judge Judith Olson filed a dissenting memorandum, wherein she concluded the majority had conflated the hearsay exception of the TYHA with Rule 601(b) of the Pennsylvania Rules of Evidence, which lists the circumstances under which a witness may be deemed incompetent to testify. Judge Olson disagreed with the majority's determination that the trial ...