Com. v. Rose, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
APRIL RENEE ROSE :
:
Appellant : No. 1191 MDA 2018
Appeal from the Judgment of Sentence Entered February 26, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0008416-2016
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.
MEMORANDUM BY OTT, J.: FILED MAY 09, 2019
April Renee Rose appeals from the judgment of sentence imposed on
February 6, 2018, in the Court of Common Pleas of York County following a
jury trial at which she was convicted of possession with intent to deliver
(PWID), endangering the welfare of a child (EWOC), and recklessly
endangering another person (REAP).1 She received an aggregate sentence of
10-20 months’ incarceration. In this timely appeal, Rose claims the trial court
erred in allowing the introduction of the videotaped forensic interview of the
four-year-old victim, Rose’s daughter, S.Y. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we agree
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 Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 4304(a)(1), and 2705,
respectively.
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that the trial court erred; however, the error was harmless in light of other
evidence developed at trial. Accordingly, we affirm.
In the evening of December 3, 2016, Nancy Hauck overheard a
conversation between Rose, who was her son’s girlfriend, and S.Y. S.Y. was
three years old at the time. Rose was telling S.Y. to take something that
would help her sleep. S.Y. did not want to because it was “yucky.” N.T. Trial,
1/16/2018, at 69-70. Rose and S.Y., who both lived in the Hauck residence,
were in the third floor bathroom at the time of the conversation. The
conversation troubled Hauck. After Rose and S.Y. left the bathroom, Hauck
went in and saw an unknown white powder on the sink. Hauck testified,
without objection, that she then spoke with S.Y. who told her “mommy gave
her a white powder that tasted yucky.” Id. at 70. Hauck then confronted
Rose who stated S.Y. must have been referring to her toothpaste. Hauck did
not believe that explanation as she knew S.Y. enjoyed the taste of her
toothpaste.
Hauck then met with her paramour and told him what had occurred.
Shortly thereafter, they called the doctor’s office and took S.Y. to the hospital.
Hauck testified S.Y was lethargic at the hospital and slept while there, barely
responding even when blood was drawn. Eventually, they woke up S.Y. and
collected a urine sample from her. Testing on the urine sample revealed the
presence of opiates.
Police and a Youth Service worker met Hauck at her home early that
morning. Rose was interviewed and Hauck showed the police the bathroom,
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but no traces of white powder were found. Shortly thereafter, while Hauck
was cleaning out Rose’s living area, she found some pills in a baggie. Hauck
called the police who arrived and confiscated the pills. Two of the pills were
hydrocodone, an opiate, and the other was a non-controlled substance. S.Y.
took part in a forensic interview during which she told the interviewer her
mother had given her the white powder.
At trial, S.Y. was determined to be a competent witness. However, when
asked about the white powder she could not remember who had given it to
her. After this development, the Commonwealth called the forensic
interviewer to the stand and, over objection, the recorded forensic interview
was played to the jury. The Commonwealth did not present the interview
under the Tender Years doctrine, 42 Pa.C.S. § 5985.1, in the belief that it
applied only to sex crimes against children. Rather, the Commonwealth
claimed, and the trial court agreed, that the interview was a prior inconsistent
statement. The video was shown to the jury and Rose was subsequently
convicted on the charges listed above.
As noted above, Rose now argues the trial court erred in allowing the
video of the forensic interview to be shown. Our standard of review for an
evidentiary issue is as follows.
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. In
determining whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the evidence
against the prejudicial impact of the evidence. Evidence is relevant
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if it logically tends to establish a material fact in the case or tends
to support a reasonable inference regarding a material fact.
Although a court may find that evidence is relevant, the court may
nevertheless conclude that such evidence is inadmissible on
account of its prejudicial impact.
Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2018) (citation
omitted).
Further, if in reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is the duty of
the appellate court to correct the error.
Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009)
(citation omitted).
Initially, we note that the general rule is a failure to remember does not
qualify as a reason to introduce a prior inconsistent statement.
Thus, where the witness has made no assertions which stand in
contradiction to statements the witness has made earlier, but
merely claims he or she does not know or cannot remember, the
prior statement should not be introduced. No permissible
evidentiary purpose is served by introducing the prior statements
and to do so is error.
Commonwealth v. Moore, 340 A.2d 447, 449 (Pa. 1975).
Moore addresses impeachment with a prior inconsistent statement
pursuant to Pa.R.E. 613. Showing the video after S.Y. was excused from the
stand was not used as impeachment but as substantive evidence.
Nonetheless, we believe it is clear that the failure to remember is not
inherently contradictory to any prior statements given. Therefore, S.Y.’s trial
testimony that she could not recall who gave her the white powder was not
inconsistent with any prior statement she made. See also, Commonwealth
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v. Watley, 153 A.3d 1034 (Pa. Super. 2016); Commonwealth v. Morris,
417 A.2d 748 (Pa. Super. 1979); and U.S. v. Palumbo, 639 F.3d 123 (3rd
Cir. 1981),2 (all of which agree that lack of memory does not trigger the use
of a prior “inconsistent” statement).
Although the Commonwealth specifically denied it sought the application
of the Tender Years doctrine, see N.T. Trial, 1/16/2018, at 116-17, both the
trial court and the Commonwealth now rely mainly upon the Tender Years
doctrine to support the admission of the video. The Tender Years doctrine is
found at 42 Pa.C.S. § 5985.1.3
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2 Federal case law does not bind us; we recognize this case is merely advisory.
3 The statute provides:
(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 offenses), 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
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We agree with the trial court’s analysis regarding the general application
of the doctrine, and, under other circumstances, would agree that the video
was admissible. However, the court’s analysis fails to account for Section
5895.1 (b) – Notice required. The Rule requires sufficient notice of the intent
to use the statement and forbids such use if notice has not been given. Case
law supports this mandate.
The Act clearly states that in the event notice is not given, the
“statement shall not be received into evidence.” § 5985.1(b)
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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 or any other
person, such as a person who has dealt with the child in a
medical or therapeutic setting.
(a.2) Counsel and confrontation.--If the court hears testimony
in connection with making a finding under subsection (a)(2)(ii),
all of the following apply:
(1) Except as provided in paragraph (2), the defendant, the
attorney for the defendant and the attorney for the
Commonwealth or, in the case of a civil proceeding, the
attorney for the plaintiff has the right to be present.
(2) If the court observes or questions the child, the court
shall not permit the defendant to be present.
(b) Notice required.--A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of the
proponent's intention to offer the statement and the particulars of
the statement sufficiently in advance of the proceeding at which
the proponent intends to offer the statement into evidence to
provide the adverse party with a fair opportunity to prepare to
meet the statement.
42 Pa.C.S. § 5985.1
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(emphasis supplied). Since it is only by the authority of the statute
that this otherwise inadmissible evidence is deemed admissible, a
party's failure to comply with the statute’s provisions must be met
with the result dictated by the statute. Here, the legislature
decided that a lack of notice negates the benefit § 5985.1 provides
to the Commonwealth's case. We have no authority to alter that
statutory scheme.
Commonwealth v. Crossley, 711 A.2d 1025, 1028-29 (Pa. Super. 1998)
(footnotes omitted).
Here, because the Commonwealth mistakenly believed the Tender Years
doctrine was not available regarding the forensic interview, it never provided
notice of intent to use the interview. The statute and case law are both clear
that without notice, the statement is not admissible. Accordingly, it is
immaterial that the statement meets the other statutory requirements for
admission.
Although we agree with Rose that the forensic interview was erroneously
allowed into evidence, we also find this represents harmless error. The
prejudice Rose complains of was S.Y.’s identification of her as the person who
gave S.Y. the white powder. This identification was harmless because the
same information had been provided to the jury, without objection, from
Nancy Hauck, who testified, “I asked [S.Y.] first. She had told me that mommy
[Rose] gave her a white powder that tasted yucky.” N.T. Trial, 1/16/2018, at
70. Because the jury had already heard that S.Y. identified her mother, Rose,
as the person who gave her the white powder, Rose was not prejudiced when
the jury heard the same information a second time in the forensic interview.
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Although the trial court abused its discretion by incorrectly applying the
Rules of Evidence in allowing the video of the forensic interview to be shown
to the jury, that abuse caused Rose no prejudice. Accordingly, she is not
entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/09/2019
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