Commonwealth v. Purnell, S., Aplt. ( 2021 )

[J-28-2021] [MO: Baer, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 71 MAP 2020
:
Appellee : Appeal from the Order of the
: Superior Court at No. 1646 EDA
: 2019 dated May 28, 2020 Affirming
v. : the Judgment of Sentence in the
: Chester County Court of Common
: Pleas, Criminal Division, at No. CP-
SHERON JALEN PURNELL, : 15-CR-4353-2016 dated March 18,
: 2019
Appellant :
: ARGUED: April 14, 2021
CONCURRING OPINION
JUSTICE DONOHUE DECIDED: September 22, 2021
I concur in the result reached by the Majority and I join in the adoption of the
balancing test enunciated in State v. Devon D., 138 A.3d 849 (Conn. 2016) for the trial
court’s guidance in deciding whether to permit the utilization by a witness of a comfort
animal. The test we adopt includes, inter alia, consideration of “the extent to which the
dog’s presence will permit the witness to testify truthfully, completely and reliably[.]”
Majority Op. at 16 (citing Devon D., 138 A.3d at 867). Regardless of the formulation of a
balancing test, it is obvious that the first consideration for a trial judge must be whether
the evidence supports a conclusion that the accommodation will in fact assist the witness.
Here, the Commonwealth did not present evidence that the presence of the comfort dog
would help the witness testify reliably and completely. Nonetheless, because defense
counsel did not raise this issue before the trial court, it is not preserved for appellate
review.1 Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be
raised for the first time on appeal.”). Absent objection by the defense, I am constrained
to agree with the result reached by the Majority.
In Devon D., the Connecticut case from which the Court adopts the balancing test,
the trial court held an evidentiary hearing, at which the state called a licensed clinical
social worker to explain how the presence of a comfort dog, Summer, would lessen the
eight year old victim’s anxiety about testifying. The social worker testified that the victim
was anxious about testifying and that children who are anxious are less likely to be able
to talk about their memories and life experiences. Devon D., 138 A.3d at 867. The social
worker also testified that Summer was trained to provide support to children who
experienced anxiety, and her presence decreases people’s anxiety levels and increases
their ability “to engage and share difficult life situations.” Id. at 861-62. The social worker
made the critical observation that when Summer was present, the victim was “less
anxious and more verbal, to engage, to answer questions, and to talk.” Id. at 867. With
that thorough record, the Connecticut Supreme Court concluded that the dog would be of
actual assistance.
In People v. Tohom, 109 A.D.3d 253, 257 (N.Y. App. Div. 2013), the prosecutor
supported the request for the assistance of a comfort dog by calling a social worker who
testified that the victim was “unable to express her emotions” or discuss the abusive
1 Defense counsel objected to the dog’s presence because it would create undue
sympathy for the witness, N.T., 11/28/2018, at 7-8, and it would distract the witness. N.T.,
11/29/2018, at 49-55. In his brief in this Court, Appellant argues that the trial court abused
its discretion because there was no evidence that the presence of the dog would have a
therapeutic benefit or assist the witness in testifying truthfully. Appellant’s Brief at 34. No
such objection to the accommodation in the case was made in the trial court.
[J-28-2021] [MO: Baer, C.J.] - 2
conduct underlying the case. The social worker also testified that the dog’s presence
enabled the victim to become “a lot more verbal” during therapy sessions and would allow
the victim “to better express herself verbally” at trial. Id. at 257-58.
To support their requests for the assistance of a comfort dog, the prosecutors in
the Connecticut and New York cases presented evidence that the witnesses’ anxiety or
reticence would make it difficult for them to testify and that the dogs’ presence would
enable the witnesses to testify more candidly and reliably at trial. In lieu of a social worker,
a parent or close relative or another with actual knowledge of the witness’s testimonial
inhibitions and beneficial effect of the dog’s presence in alleviating the barrier would
likewise provide an evidentiary basis for allowing the accommodation. Whatever the
source, evidence that the accommodation would assist the witness’s testimony is crucial.
In the case before us, the Commonwealth presented no evidence to demonstrate
that the presence of the sheriff’s dog would enable the witness to testify more reliably and
completely. The Commonwealth relied on the facts that A.H. was a juvenile who allegedly
witnessed Appellant shoot and kill Victim; that A.H. was with another witness when the
witness was attacked in an attempt to intimidate him from testifying; and that A.H. feared
that she may be shot for testifying. Majority Op. at 17. The Commonwealth’s main
justification for requesting the dog’s presence was that the witness was fearful of coming
to court. Although these hearsay statements by the prosecutor demonstrate that A.H. felt
unsafe, there is no evidence that the presence of this comfort dog would alleviate her
safety concerns and enable more reliable and complete testimony.2 On this record, there
2 At the hearing, the Commonwealth made clear that the fear of testifying was the only
reason for having the dog present. N.T., 11/19/2018, at 51 (stating that the witness “has
[J-28-2021] [MO: Baer, C.J.] - 3
is no basis for a finding that the dog’s presence would enable the witness to testify in a
truthful manner.
Nonetheless, because defense counsel did not object to the lack of evidence
demonstrating that the comfort dog would aid the witness in testifying truthfully and
reliably, the issue was waived, and this Court cannot address the issue for the first time
on appeal. Pa.R.A.P. 302(a). I therefore concur in the result reached by the Majority.
voiced her fear of coming to court and I’m asking for the dog to be there as a comfort item
for her”). There was no evidence that the dog made the witness feel safe. When the trial
court inquired of A.H.’s autism, “Is that the primary reason why or what singles her out
from other witnesses who were her same approximate age? I mean, why is it that you’re
mentioning her by name and not the others for the comfort dog?[,]” the Commonwealth
answered, “A.H. has expressed to law enforcement that she is concerned about her
safety coming to court and it’s for that reason the Commonwealth is asking for the dog to
accompany her to the stand.” Id. at 52-53. Notably, the Commonwealth now lists various
other facts suggesting support for the finding that the comfort dog would be beneficial,
including that the witness was autistic, has learning disabilities and is easily distracted.
Commonwealth’s Brief at 28-29. However, no matter the justification for the concern
regarding the witness’s testimonial inhibitions, the Commonwealth needed to present
evidence that the dog’s presence would assist the witness. Since the comfort dog was
the sheriff’s dog, not the witness’s dog, the record lacks even the most basic evidence
that the witness was observed spending time with the animal newly introduced into her
life, and that she reacted favorably to the dog.
[J-28-2021] [MO: Baer, C.J.] - 4