In the Interest of: N.B., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.B., A MINOR
No. 2952 EDA 2016
Appeal from the Dispositional Order August 19, 2016
In the Court of Common Pleas of Monroe County
Juvenile Division at No(s): CP-45-JV-0000171-2015,
CP-45-JV-0000172-2015
BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 12, 2017
N.B. appeals from the trial court’s order denying his post-dispositional
motion following his adjudication of delinquency for rape of a child under 13
years of age,1 involuntary deviate sexual intercourse with a child under the
age of 13,2 aggravated indecent assault,3 sexual assault,4 indecent assault,5
and indecent exposure6 in CP-45-JV-0000171-2015 (“Case 171” (female
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3121(c).
2
18 Pa.C.S. § 3123(b).
3
18 Pa.C.S. § 3125(b).
4
18 Pa.C.S. § 3124.1.
5
18 Pa.C.S. § 3126(a)(7).
6
18 Pa.C.S. §3127(a).
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victim)), and involuntary deviate sexual intercourse,7 indecent assault,8
indecent exposure9 and sexual assault10 in CP-45-JV-0000172-2015 (“Case
172” (male victim)). The charges stemmed from sexual acts N.B. allegedly
perpetrated upon his half-siblings, N.M. and N.M., aged 4½ and 6½ at the
time of the incidents. After careful review, we affirm.
N.B. is the half-brother of the victims in this case, N.M. (female) and
N.M. (male) (collectively “the victims”). N.B. and the victims have the same
biological mother, E.M. (Mother). The victims’ father is C.M. (Stepfather).
N.B.’s biological father is J.B (Father). At the time of the incidents, the
victims, N.B. and three other brothers and sisters lived in Mother’s
residence. N.B. lived primarily with Mother, but on certain weekends he
would reside with Father. By all accounts, Mother and Father had been
involved in a contentious custody battle over N.B. for ten years. However,
there was a significant lull in the custody proceedings at the time the victims
made their allegations against N.B. The evidence of the sexual assaults in
both cases was purely circumstantial; there was no forensic or physical
evidence of abuse to either victim.
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7
18 Pa.C.S. § 3123(b).
8
18 Pa.C.S. §3126(a)(7).
9
18 Pa.C.S. § 3127(a).
10
18 Pa.C.S. § 3124.1.
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On August 17, 2015, N.B. filed a pretrial omnibus motion seeking,
among other things, taint and competency hearings regarding both victims.
In the motion, N.B. specifically requested that the court “convene a taint
hearing regarding the video testimony of [the victims] . . . [because] . . .
there was taint in the reporting process and investigation of this case as well
as the child advocacy interviews conducted regarding the alleged child
victims.” Defendant’s Omnibus Pretrial Motion, 8/17/15, at ¶¶ 34, 37.
On January 22, 2016, and March 29, 2016, the trial court held “taint”
hearings to address whether the case involved “false memories or distortion
of memories by [forensic] interview techniques [of the child victims] that
[were] unduly suggestive and coercive.” Trial Court Opinion, 10/14/16, at
1-2. At the hearings, Dr. Frank M. Datillio, a licensed clinical and forensic
psychologist, was certified as an expert in forensic psychology and
interviewing. N.T. Taint Hearing, 1/22/16, at 63; N.T. Taint Hearing,
3/29/16, at 7, 25. Doctor Datillio stated that “there [was] the potential for
[taint]” in N.M.’s [male] testimony from the [Child Advocacy Center (CAC)]
interview as “a result of the interview process[,]” id. at 95, and, that to a
degree of forensic psychological certainty, he believed that the CAC video
was tainted as a result of “too many leading questions, [that the interview
was conducted] in too quick a time[,]” and that “there was [not] enough
operationally defined aspects with regard to touch and body part.” Id. at
97.
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CAC child forensic interviewer, Kristen Fetcho, also testified at the
taint hearing; she was admitted as an expert in forensic interviewing and
child development. Fetcho, who had been employed as a forensic
interviewer for more than twenty years, had conducted almost 8,500
interviews. Fetcho conducted the interview of N.M. (male) in the instant
case. She testified that the CAC uses the National Children’s Alliance
Children’s Advocacy Center method of interviewing children, which is a
combination of the Rapport, Anatomy, Touch, Abuse and Closure (“RATAC”)
Method and other approaches. N.T. Taint Hearing, 3/29/16, at 46. The CAC
method includes an “intro, . . . rules, . . . rapport, . . . narrative building, . .
. narrative practice[,] . . . family composition and . . . transition.” Id. After
reviewing her videotaped interview of N.M (male) and the interview of N.M.
(female), Fetcho concluded that, based on her experience, neither of the
children behaved in a way that concerned her, and opined, to a reasonable
degree of professional certainty, that there was no taint with regard to either
child victim. Id. at 52.
Following the taint hearings, the court concluded that, based upon a
totality of the circumstances, the testimony was not compelling to show
clear and convincing evidence of taint. While the court acknowledged that
there were “admittedly signs of possible taint, . . . [it also recognized that]
every child acts and reacts differently to events, stress, and interviewing and
that . . . in light of the entire testimony of the child in the interview, the
child’s demeanor and body language during the interview, and the mostly
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consistent testimony during the interview, such was not convincing evidence
of taint.” Trial Court Opinion, 10/14/16, at 4. On May 6, 2016, the court
issued an order denying N.B.’s motion requesting dismissal of the charges
due to taint.
On July 19, 2016, an in camera Tender Years Hearsay Exception11
proceeding was held with N.B. (female) and N.B. (male), during which the
attorneys in the case and, to a limited extent, the judge asked the children
questions regarding their ability to distinguish the truth from a lie and how
they would feel about testifying in front of N.B. The trial judge ultimately
concluded that both child victims were competent to testify in the case and
that their non-testimonial statements were admissible under section 5985.1.
Id. at 45. The trial judge also concluded that the statements the children
made during their CAC interviews had “enough sufficient indicia of reliability”
and that because he believed the children would suffer serious emotional
distress, which could impair their ability to reasonably communicate if they
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11
See 42 Pa.C.S. § 5985.1(a) (Tender Years Hearsay Exception permits out-
of-court statement made by a child victim or witness 12 years of age or
younger describing, in part, sexual offenses admissible in evidence in
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.”).
.
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were required to testify in front of N.B., they could testify using a
“contemporaneous alternative method” such as video. Id. at 46-47.
Following a detention hearing, the court found that the Commonwealth
provided prima facie evidence of IDSI, indecent assault, indecent exposure,
and sexual assault. After a hearing, the court adjudicated N.B. delinquent;
N.B. was placed under the temporary legal custody of Monroe County
Children and Youth for placement at a sex offender treatment program at
La-Sa-Quik, a community-based home located near Williamsport,
Pennsylvania. On August 29, 2016, N.B. filed a post-dispositional motion to
vacate or modify the adjudicatory order of delinquency in both cases. See
Pa.R.J.P. 620. The motion raised the issue of sufficiency and/or inconsistent
victim testimony in the cases.12 The court denied the motion on September
1, 2016. N.B. filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. He raises
the following issues for our consideration:
(1) Whether the trial court erred when it denied the juvenile’s
motion to dismiss for taint the charges of [r]ape of a child,
[i]nvoluntary [d]eviate [s]exual [i]intercourse (IDSI),
[a]ggravated indecent assault, [s]exual [a]ssault,
[i]ndecent [a]ssault, and [i]ndecent [e]xposure as to the
victim N.M. [female] . . . due to the tainted influence of
the juvenile’s biological mother and step-father regarding
the testimony of the child witness; AND
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12
See Pa.R.J.P. 629(A)(2) (“Issues raised before or during the adjudicatory
hearing shall be deemed preserved for appeal whether or not the party
elects to file a post-dispositional motion on those issues.”).
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(2) Whether the trial court erred when it denied the juvenile’s
motion to dismiss for taint the charges of [IDSI,] 18
Pa.C.S. § 3123(b); [i]ndecent [a]ssault[,] 18 Pa.C.S.
[§§]3126 [] (a)(7) [&] 18 Pa.C.S. § 3127(a)[;] and
[s]exual [a]ssault[,] 18 Pa.C.S. §3124.1 as to the victim
N.M. [male] due to the tainted inference of the juvenile’s
biological mother and step-father regarding the testimony
of the child witness.
Appellant’s Brief, at 5.13
Our Supreme Court’s decisions in Commonwealth v. Delbridge, 855
A.2d 27 (Pa. 2003) (“Delbridge I”) and Commonwealth v. Delbridge,
859 A.2d 1254, 1256 (Pa. 2004) (“Delbridge II”), are the seminal cases
addressing the issue of taint in cases involving the alleged sexual abuse of
children. In Delbridge II, the Supreme Court noted:
The core belief underlying the theory of taint is that a child's
memory is peculiarly susceptible to suggestibility so that when
called to testify a child may have difficulty distinguishing fact
from fantasy. See Josephine A. Bulkley, The Impact of New
Child Witness Research on Sexual Abuse Prosecutions, in
Perspectives on Children's Testimony, 208, 213 (Stephen J. Ceci
et al. eds, 1989). Taint is the implantation of false
memories or the distortion of real memories caused by
interview techniques of law enforcement, social service
personnel, and other interested adults, that are so unduly
suggestive and coercive as to infect the memory of the
child, rendering that child incompetent to testify. See,
Julie Jablonski, Assessing the Future of Taint Hearings, 33 Suff.
J. Trial & App. Adv., 49, 50 (1998).
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13
N.B. notes in his brief that while he raised the issues of weight and
sufficiency of the evidence in his Rule 1925(b) concise statement of matters
complained of on appeal, he has abandoned those claims on appeal. Thus,
we will confine our review to the taint issue.
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Id., citing Delbridge I, 855 A.2d at 34-35 (emphasis in original). An
allegation of taint in a case involving alleged sexual abuse of a child raises a
question of witness competency. See Delbridge I, 855 A.2d at 34-35. In
order to determine whether a child witness is considered competent to
testify, a court must examine whether the child has:
(1) such capacity to communicate, including as it does
both an ability to understand questions and to frame and
express intelligent answers; (2) [the] mental capacity
to observe the occurrence itself and the capacity to
remember what it is that [he or] she is called to
testify about, and (3) a consciousness of the duty to
speak the truth.
Id. at 39 (emphasis added); see generally Pa.R.E. 601(b) (Competency).
It is the second prong of the competency test that speaks directly to the
issue of taint.
In Delbridge I, supra, our Supreme Court explained the pre-trial
procedure to determine whether interviewer bias influenced a child witness
to a degree that the proffered testimony may have been irreparably
compromised:
A determination of a child witness’s competency involving
allegations of taint necessitates review of the manner in which a
child’s allegations of sexual abuse surfaced and were
investigated. In some cases it is conceivable that resolution of
this issue could be had through an examination of the factual
context of the interview process. It is also conceivable that with
certain children, given differences in age, experience, mental
acuity and familial circumstances, and considering specifics of
the allegations of abuse, and the circumstances surrounding the
investigation itself, that expert testimony may be necessary.
Further, it is possible that the phenomenon of taint may undergo
revision or reconsideration in the relevant scientific,
psychological or law enforcement communities that should be
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brought to the attention of the trial court. In Pennsylvania,
expert testimony is admissible when a matter in issue is beyond
the common knowledge of the factfinder: If scientific, technical
or other specialized knowledge beyond that possessed by a
layperson will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training or education may testify
thereto in the form of an opinion or otherwise.
Id. at 43. Additionally, since competency is the presumption, in
Pennsylvania the moving party must carry the burden of overcoming that
presumption. Id. at 40-41. As with all questions of competency, the
resolution of a taint challenge to the competency of a child witness is a
matter addressed to the discretion of the trial court. Id. Finally, our
standard of review of a trial court ruling on competency is for an abuse of
discretion. Rosche v. McCoy, 156 A.2d 307 (Pa. 1959).14
Instantly, N.B. alleges that Mother fabricated the allegations against
him after he expressed an interest to live with Father and after she read
N.B.’s private journal entries detailing N.B.’s accounts of Mother and
Stepfather’s verbal and physical abuse inflicted upon him. Moreover, N.B.
claims that the CAC employs interview techniques, which include leading
questions and “’precogitated’ findings, that lead to the elicitation of
inadmissible, incompetent testimony.” Appellant’s Brief, at 6.
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14
When reviewing a trial court’s determination that a child-witness is
competent, “[i]t is appropriate for an appellate court to look not only to the
trial court’s questioning of the child [at the competency hearing] prior to the
child testifying, but also to the child’s actual testimony.” Commonwealth
v. Trimble, 615 A.2d 48, 51 (Pa. Super. 1992).
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Taint implicates the ability of a child to distinguish real memories of an
event from falsely implanted suggestions that could infect the mental
capacity of the child witness to independently recall the event and truthfully
testify. Delbridge II, 859 A.2d at 1255. In order to determine whether
taint exits in a given case, at a competency hearing the central focus is “the
minimal capacity of the witness to communicate, to observe an event and
accurately recall that observation, and to understand the necessity to speak
the truth.” Delbridge I, 855 A.2d at 40.
We concur with the trial court that N.B. did not provide clear and
convincing evidence of taint to overcome the presumption of competency
with regard to the child victims. First, N.B.’s allegations that Mother
fabricated the abuse claims is not borne out in the record. While N.B.
contends that Mother inflicted abuse upon him, when pressed to detail the
events leading to that conclusion, N.B. testified that Mother made him do
extensive chores around the house and watch his younger siblings.
Moreover, to the extent that N.B. contends Mother would have conjured up
the sexual abuse allegations against him because she was jealous that N.B.
wanted to live with Father, we note that when the allegations surfaced,
Mother indicated that she wanted N.B. to move out of her house
immediately and live with Father. There is simply nothing clear and
convincing to prove that Mother fabricated the abuse allegations. See
Commonwealth v. Pukowsky, 147 A.3d 1229, 1234 (Pa. Super. 2016)
(where defendant asserted that child victim’s testimony was tainted because
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“incidents occurred during a period of marital stress between himself and
[the child’s mother],” court concluded that fact that parents were in divorce
litigation in no way caused mother to implant false memories or distortions
onto victim regarding alleged sexual abuse by defendant that would make
child incompetent to testify).
With regard to the interview procedures employed by the staff at the
Scranton CAC, we likewise find that N.B. failed to prove that the victims’
memories were compromised by tainted interview techniques.
N.M. (male) was interviewed on June 29, 2015, by Scranton CAC
worker, Kristin Fetcho.15 During his CAC interview, N.M. consistently and
repeatedly stated that he did not remember what happened with regard to
any alleged incidents with N.B. However, as a result of her persistence and
direct16 questioning, N.M. eventually told Fetcho that N.M. touched his
private parts, took him into their bedroom closet, told her that one of them
was wearing clothes and the other pajamas, and said that he remembered
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15
Mother testified that N.M. was identified at an early age with both
communication and speech issues; he had an Individualized Education
Program (IEP) in place for his speech and verbal issues at the time of his
CAC interview. Mother testified that she told Fetcho about these issues
before she conducted the CAC interview. However, Mother also testified that
N.M. does not have any cognitive or learning disabilities that would impair
his ability to understand communication. N.T. Proceeding, 4/15/16, at 11-
12.
16
Fetcho defined direct questioning during a forensic child interview as one
where the interviewer asks the “who’s, what’s and where’s” to obtain details
on something the child already stated. N.T. Taint, 3/29/16, at 51.
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seeing N.B.’s private parts. When asked what it felt like when N.M. touched
him, he replied that “it tickled.” While N.M. did not always answer Fetcho’s
questions in an intelligible, articulate manner as a result of N.M.’s diagnosed
speech impediments, his competency as a witness was not impaired as a
result of them. Rosche, 156 A.2d at 310-12. N.M.’s answers are consistent
with the reality that every child reacts differently to life experiences, his
language was appropriate based on his speech and communication issues,
and his unaffected recounting of the events was not unusual given the
variance in each individual child’s temperament.
Although Dr. Datillio “concluded to a reasonable forensic psychological
certainty [that] there was taint in [Case 172] in the CAC interview, on cross-
examination Dr. Datillio recognized that there are other interview techniques
then the one that he employs; leading questions are oftentimes necessary
early in an interview; CAC interviewer Fetcho stopped for a break only four
minutes later than when he would have; and N.M.’s behavior during the
interview could be attributed to his feeling uncomfortable with the details he
was recounting. N.T. Taint Hearing, 3/29/16, 23-35.
We are mindful that “[t]he clear and convincing burden accepts that
some suggestibility may occur in the gathering of evidence, while
recognizing that when considering the totality of the circumstances, any
possible taint is sufficiently attenuated to permit a finding of competency.”
Delbridge I, 855 A.2d at 41. Here, while admittedly there was some
suggestive questioning during N.M.’s (male) interview, we agree with the
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trial court that it did not render N.M. (male) incompetent to testify. The
evidence reveals that while N.M. had some speech impediments and was not
immediately forthcoming with information, he did have the mental capacity
to observe the occurrence itself and the capacity to remember what it is that
he was called to testify about. Id.
Instantly, Bridget Conway from the Scranton CAC interviewed N.M.
(female) on June 29, 2015. While Conway may not have employed optimal
interviewing techniques, after viewing the entire video tape of the interview,
we concur with the trial court that the techniques were not so suggestive or
leading as to compel a conclusion that the victim’s testimony was tainted or
that she was incompetent to testify at trial. See Pukowsky, supra (trial
court did not abuse its discretion in determining child victim was competent
to testify where psychotherapist’s questioning was “gentle, open-ended and
appropriate,” any taint was “mild” and was not enough to render child
incompetent to testify, and that while interviewer may not have been most
proficient in techniques, questions were not leading, suggestive or
coercive). Moreover, any discrepancies in N.M.’s (female) statements and
testimony were so minor and reconcilable that they do not raise doubt about
her competency. See Commonwealth v. Fox, 282 A.2d 341 (Pa. 1971)
(inconsistencies in recollection of events go to witness’s credibility, not
competency).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2017
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