Com. v. Brown, M. ( 2022 )

J-S26039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK K BROWN :
:
Appellant : No. 318 MDA 2022
Appeal from the Judgment of Sentence Entered November 18, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004485-2018
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 23, 2022
Appellant Mark K. Brown appeals from the judgment of sentence of
fourteen (14) years to forty (40) years in prison entered in the Court of
Common Pleas of Lancaster County on November 18, 2021, following his
convictions of numerous sexual offenses against a minor child, B.T.P.1
Following our review, we affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
PROCEDURAL BACKGROUND
By Criminal Information docketed to Number CP-36-
Cr0004485-2018, Appellant was charged with allegedly having
committed four counts of Rape of a Child1, four counts of
Involuntary Deviate Sexual Intercourse with a Child2, two counts
of Indecent Assault3, one count of Corruption of Minors4, and one
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 We will refer to the minor victim by his initials or as “the Child” to protect
his identity.
J-S26039-22
count of Unlawful Contact with a Minor5. These incidents were to
alleged to [have] occurred between September 1, 2017 and
November 30, 2017 in New Holland Borough, Lancaster County
Pennsylvania.
Trial commenced on April 12, 2021, before this member of
the trial court and a jury. It is noted that prior to the
commencement of trial, the Commonwealth withdrew two counts
of Rape of a Child and two counts of Involuntary Sexual
Intercourse with a Child, which were previously indicated as
Counts 3, 4, 7, and 8 on the Criminal Information. (N.T., Trial,
April 13, 2021, P. 54), On April 14, 2021, Appellant was found
guilty of all remaining charged counts.6 The trial court deferred
sentencing pending the completion of a Pre-Sentence
investigation, with sentencing initially scheduled for September
24, 2021. Due to certain medical concerns sentencing was
rescheduled until November 18, 2021.
On November 18, 2021, the court sentenced Appellant as
follows:
Count 1 -- Rape of A Child — Not less than fourteen nor
more than forty years’ incarceration in the state correctional
system.
Count II — Rape of a Child —Not less than fourteen nor more
than forty years’ incarceration in the state correctional
system. This sentence was imposed concurrently with Count
I.
Count III — Involuntary Deviate Sexual Intercourse—
Merged with Count I.
Count IV — Involuntary Deviate Sexual intercourse —
Merged with Count II.
Counts V through VIII — Indecent Assault (2 counts),
Corruption of Minors, and Unlawful Contact with a Minor —
As to each count, not less than three years and six months
nor more than seven (7) years’ incarceration in the state
correctional system. All such sentences were imposed
concurrently with Count I.
Appellant was also ordered to pay the costs of prosecution
and restitution in the amount of $1,178. In addition, it was noted
that Appellant was not eligible for participation in the RRRI
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Program, Motivational Boot Camp Program, State Drug Treatment
Court Program, or Short Sentence Parole Program and that the
attorney for the Commonwealth did not waive any such
ineligibility. Appellant was made subject to the required provisions
of the Sexual Offender Registration and Notification Act. In
addition, Appellant was ordered to provide the required DNA
sampling and to pay any associated costs thereof, was
recommended for any educational, vocational, drug and alcohol,
or any other programming deemed necessary by the Pennsylvania
Department of Corrections and advised that he would be subject
to any conditions imposed by the Pennsylvania Board of Probation
and Parole.
On November 19, 2021, Appellant filed a Post-Sentence
Motion seeking a reduction in sentence and withdrawal by trial
counsel as counsel for Appellant. By order dated November 29,
2021, and filed on November 30, 2021, the court denied
Appellant’s Post-Sentence Motion seeking a modification of
sentence and granted trial counsel leave to withdraw as counsel
for Appellant.
Subsequently, on December 1, 2021, Attorney MaryJean
Glick of the Office of the Public Defender of Lancaster County
entered her appearance on behalf of Appellant. On December 29,
2021, Appellant filed a timely Notice of Appeal with the Superior
Court of Pennsylvania. By order dated December 30, 2021,
Appellant was directed to file a concise statement of errors
complained of on appeal within twenty-one days.
On January 4, 2022, Attorney Diana C. Kelleher, also of the
Office of the Public Defender of Lancaster County, entered her
appearance and withdrew the appearance of Attorney MaryJean
Glick for the Appellant.
On January 14, 2022, Appellant filed a Motion for Extension
of time to file Statement of Errors based upon the change in
counsel and resulting delays in transcription of all relevant
proceedings. By order of January 18, 2022, the court granted this
request and directed that any statement of errors was due within
twenty-one days following receipt of all transcripts. On February
9, 2022, Appellant filed his statement of errors complained on
appeal. As such, this matter is ripe for review.7
___
118 Pa.C.S.A. § 3121(c).
218 Pa.C.S.A. § 3123(b).
318 Pa.C.S.A. § 3126(a)(7).
418 Pa.C.S.A. § 6301(a)(1)(ii).
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518 Pa.C.S.A. § 6318(a)(1).
6 It is noted that the remaining counts were renumbered on the
verdict slip presented to the jury in this matter so as to make no
reference to the counts withdrawn by the Commonwealth.
7 By correspondence dated March 1, 2022, this court requested a
thirty-day extension of time to submit the Opinion in this matter
as a result of the transcription delays and delayed filing of
Appellant’s Statement of Errors.
Trial Court Opinion, filed 3/23/22 at 1-4.
In his brief, Appellant presents the following Statement of Question
Presented:
Did the trial court err in admitting the out of court statements
made by the victim to his babysitter, Chase Joseph, where the
content and circumstances of those statements did not
demonstrate sufficient indicia of reliability as required for the
tender years exception to the hearsay rule?
Brief for Appellant at 6.
Generally, this Court’s standard of review for evidentiary rulings,
including the admission of hearsay, is abuse of discretion. Commonwealth
v. Walter, 625 Pa. 522, 93 A.3d 442, 449 (2014). “Issues of statutory
interpretation are questions of law; our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Luster, 234 A.3d 836, 838
(Pa.Super. 2020). As such, we review a trial court’s decision to admit
evidence pursuant to the “Tender Years Statute”2 for an abuse of
discretion. See Commonwealth v. Curley, 910 A.2d 692, 697 (Pa.Super.
2006) (citation omitted).
____________________________________________
2 42 Pa.C.S.A. § 5985.1.
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It is well-settled that the “Tender Years Statute creates an exception to
the hearsay rule in recognition of the fragile nature of the victims of childhood
sexual abuse.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 988
(Pa.Super. 2007) (citation omitted). Specifically, the statute provides as
follows:
(a) General rule.--
(1) An out-of-court statement made by a child victim or witness,
who at the time the statement was made was 16 years of age or
younger, describing any of the offenses enumerated in paragraph
(2), not otherwise admissible by statute or rule of evidence, is
admissible in evidence in any criminal or civil proceeding if:
(i) 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
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a).
The Act also includes a notice requirement that states:
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.A. § 5985.1(b).
Herein, Appellant admits that B.T.P.’s disclosure to Mr. Joseph had been
made spontaneously while the latter was babysitting and that there was no
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evidence to show the Child had a motive to fabricate his statements. See
Brief for Appellant at 14. However, while he admits that Mr. Joseph described
the Child as “uneasy” and displaying “a lot of facial tics,” N.T., Tender Years
Hearing/Trial, 4/12/21 at 43, Appellant posits that because no testimony was
presented that “the victim was crying, or upset, or overly emotional when
making the disclosure,” the trial court erred when it characterized B.T.P. as
being “rather emotional” and “quite emotional” for purposes of applying the
tender years doctrine. Brief for Appellant at 15.
Appellant also points to inconsistencies in the terminology B.T.P. used
in describing Appellant’s actions with Mr. Joseph, a nurse practitioner, and the
forensic interviewer as proof that the Child’s statement lacked the necessary
indicia of reliability. Id. at 16-18. Appellant reasons the unreliability is
compounded by the fact that Mr. Joseph has suffered a “traumatic brain
injury” which made his testimony unreliable. Id. at 18-19.
When considering these arguments, the trial court reasoned as follows:
Our appellate courts have held that the test for establishing
whether a child’s testimony provides the sufficient indicia of
reliability requires a trial court to consider the totality of the
attendant circumstances. Stated another way, our Superior Court
has held that, “pursuant to the Tender Years Hearsay Act, a trial
court must consider the totality of the circumstances when
determining whether a child’s out-of-court statement is
trustworthy.” Commonwealth Y. Lyons, 833 A.2d 245, 253 (Pa.
Super. 2003). The statute requires “indicia of reliability” which
“include, inter alia, the spontaneity of the statements, consistency
in repetition, the mental state of the declarant, use of terms
unexpected in children of that age, and lack of motive to
fabricate.” Strafford, 194 A.3d at 173.
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In this matter, the trial court conducted a hearing outside of
the presence of the jury relative to the Commonwealth’s request
to admit certain statements of the child victim at trial pursuant to
42 Pa.C.S.A. §5985.1. Specifically, on April 12, 2021, the
Commonwealth presented the testimony of Julie Stover, a medical
provider who had been employed by Lancaster General Health and
the Lancaster County Children's Alliance. Ms. Stover testified
regarding certain statements made to her by the child victim
during a physical examination that she conducted on January 22,
2018. (N.T., Trial, 4/12/21, p. 7). During this examination, the
child victim made statements including that Appellant’s actions
“made him feel weird”, that Appellant’s “junk touched my junk”,
and that both Appellant and the child victim had their pants down
during the alleged assaults. (N.T., Trial, 4/12/21, pp. 8-9). Next,
the Commonwealth presented the testimony of Karen Melton, a
forensic interviewer also employed by the Lancaster County
Children’s Alliance. Ms. Melton testified regarding certain
statements made to her by the child victim during a forensic
interview that she conducted with the child victim on January 22,
2018. (N.T., Trial, 4/12/21, p. 23). This forensic interview was
recorded by audio and visual means. (N.T., Trial, 4/12/21, p.23),
A copy of this recording was introduced as Commonwealth Exhibit
Number 3 and was reviewed in its entirety by the court. On April
13, 2021, the Commonwealth presented the testimony of the child
victim’s babysitter, Chase Joseph. Mr. Joseph testified regarding
the initial disclosure made to him by the child victim on December
1, 2017, when the child was seven years of age. Mr. Joseph
indicated that the child victim made statements such as: the fact
that he needed to tell Mr. Joseph a secret; that Mr. Joseph could
not tell the victim’s mother the secret; the victim was talking
about testicles and masturbation; the victim indicated that
Appellant showed him how to masturbate and made motions
demonstrative of such; the victim asked Mr. Joseph if he knew
what testicles and a penis were used for; and, the victim indicated
that Appellant showed him that “when you grab it and you go up
and down, it will make it come out”. (N.T., Trial, 4/13/21, pp. 39-
44). In addition, Mr. Joseph testified that the child victim was
demonstrating visual tics and uneasiness during this disclosure.
(N.T., Trial 4/13/21, pp. 42-43). Mr. Joseph did indicate that his
recollection of this disclosure was “a bit jumbled” as he suffers
from a traumatic brain injury, although he was able to provide his
testimony in detail. (N.T., Trial, 4/13/21, p. 46).
At the conclusion of the tender years hearing, the
Commonwealth moved to admit the relevant statements made by
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the child victim to Ms. Stover, Ms. Melton, and Mr. Joseph at trial
under 42 Pa.C.S.A. § 5985.1. Trial counsel offered no objection to
the admission of the statements made to Ms. Stover and Ms.
Melton. Trial counsel objected to the admission at trial of the
statements made to Mr. Joseph. (N.T., Trial, 4/13/2 1, p. 51). Trial
counsel argued that Mr. Joseph’s testimony failed to meet the
required standard for the tender years exception because the
witness stated that he had a traumatic brain injury, that his
recollection was a bit jumbled, and that the statements allegedly
made by the child victim to Mr. Joseph were “a little bit different
tha[n] what he told the forensic interviewer and the nurse
practitioner.” (N.T., Trial, 4/12/21, p. 51).
In response, although admittedly stated in a somewhat
inarticulate manner, this court noted that Mr. Joseph’s
individualized concerns seemed to be appropriate for cross-
examination at trial but noted that the relevant factors in
assessment of indicia of reliability pertain to the child victim as
the declarant. (N. T., Trial, 4/13121, p. 5l).
In reaching the determination to admit the statements
offered by the child victim to Mr. Joseph at trial, this court
considered that: the statements were spontaneously made by the
child; there existed limited inconsistency in the child’s statements;
the mental state of the child victim; the child’s use of unexpected
terms; the lack of any evidence demonstrative of a motive to
fabricate on the part of the child; and, the emotional state of the
child when making the challenged disclosures. (N.T., Trial,
4/13/21, pp. 51-52). Upon consideration of the totality of the
evidence presented, the court admitted the statements made by
the child victim to Mr. Joseph at trial. (N.T., Trial, 4/13/21, pp.
53-54).
In summary, this court found that the totality of the
evidence presented demonstrated a sufficient indicium of
reliability as to the disclosures made by the child victim. As noted,
the court recognized that the child used the term “testicles”, which
is an uncommon word for a person at the tender age of seven.
Additionally, the child's disclosures were unprompted and
spontaneous in that the child, during play, told Mr. Joseph that he
had a secret that he needed to share, although the secret should
not be shared with the child’s mother. Importantly, no evidence
was produced suggestive of any motive for the child to fabricate
and the child was quite emotional upon making such disclosure. It
is recognized that, although there was a slight inconsistency with
the statement made by the child to Mr. Joseph regarding the
naming of a part of human anatomy, there was no inconsistency
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regarding the alleged abusive actions. Accordingly, any
inconsistency was not so significant as to outweigh the other
indicia of reliability. As such, the court finds that Appellant’s sole
claim lacks merit.
Trial Court Opinion, 3/23/22, at 5-8.
The certified record supports the trial court’s findings. First, with regard
to his contention that there must be a finding by the trial court that B.T.P. was
in danger of serious emotional distress, Appellant has misread or
misapprehended the Tender Years Statute. The statute requires such a finding
only where the Commonwealth seeks to excuse the child from testifying:
(a.1) Emotional distress.—In order to make a finding under
subsection (a)(1)(ii)(B) 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 or any other person,
such as a person who had dealt with the child in a medical
or therapeutic setting.
42 Pa.C.S.A. § 5985.1(a.1). Instantly, B.T.P. testified at trial; thus, there
was no need for this finding.
At the Tender Years Statute hearing, which was held immediately prior
to trial, Ms. Stover testified she had done approximately 3,000 evaluations of
children pertaining to sexual abuse. N.T., Tender Years Hearing/Trial,
4/12/21, at 6. On January 22, 2018, Ms. Stover performed a physical
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examination on B.T.P. and completed a written report thereafter. Id. at 7.
Ms. Stover could not remember his demeanor at that time, but she explained
that the Child referred to his penis as his “junk.” Id. at 9.
Ms. Melton testified she is a forensic interviewer at Lancaster County
Children’s Alliance and has conducted about 1,700 forensic interviews. Id. at
17-18. After explaining her methodology, Ms. Melton indicated that the copy
of the DVD the Commonwealth had presented as Exhibit 3 fairly and accurately
depicted her interview with B.T.P. on January 22, 2018. Id. at 25-26. On
cross-examination, Ms. Melton explained that any knowledge of a case she
may have prior to her interview is inapposite as it will not impact how she
asks a child questions. Id. at 27. She also explained it is not her job to
make credibility determinations pertaining to the child’s disclosure. Id. at 32.
Mr. Joseph explained he has known B.T.P. since the Child was four
weeks old and babysat for him until he was about nine years old. N.T. 4/13/21
at 38-39. On December 1, 2017, as the two were finishing playing with Legos,
the Child told Mr. Joseph he has a secret he needed to disclose. Id. at 39-40.
At the outset, B.T.P., who was seven years old, told Mr. Joseph he could not
tell “Mommy” and then proceeded to discuss his “testicles” and his “pee pee”
and how Appellant had shown him how to masturbate. Id. at 40-41. Mr.
Joseph explained he “was kind of floored” and asked B.T.P. what had
happened to him. In response, the Child “basically just straight up told [him]
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that he was basically being molested without saying that word.” Id. at 41-
42.
Mr. Joseph described B.T.P.’s demeanor during this conversation as
follows:
So he actually had a lot of tics, like nervous tics. And he had his
lips and his lips were all red. And that was just a very concerning
sign to me that he just had developed these tics. But other than
that, he was just kind of—he felt uneasy. I could tell that but I
don’t know exactly what it was.
Id. at 42-43.
Mr. Joseph explained that B.T.P.’s facial tics increased during the time
he revealed the sexual abuse, but the Child did not have them anymore. Id.
at 43. Mr. Joseph told B.T.P.’s mother about the conversation when she came
to pick up B.T.P., and he and his father called the police. Id. at 45. It is
noteworthy that Mr. Joseph testified regarding the Child’s statements to him
without the need to review the police report which counsel had offered him to
refresh his memory.
On cross-examination, Mr. Joseph stated that although his memory
sometimes is “a bit jumbled” due to a traumatic brain injury, he explained
that “sometimes I’ll forget what I’m saying and I’ll remember it and I’ll just
be on track.” Id. at 46. Mr. Joseph did not ask the Child for additional details
other than those B.T.P. provided to him on December 1, 2017, because he
”didn’t want to bring anything open.” Id. at 47.
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At the conclusion of the Tender Years Statute hearing, the following
exchange ensued:
[DEFENSE COUNSEL]: As to the statement of Chase Joseph, I
would object. I know the Court has to make a determination on
the indicia of reliability and his traumatic brain injury. It’s a bit
jumbled in his mind as to what exactly he said, what he said that
the child told him. It’s a little bit different than what he told both
the forensic interviewer and the nurse practitioner.
So I don't think they met the burden for tender years
exception.
THE COURT: Let me just prod a little bit. Certainly, the issue as to
the -- this witness’s individualized concerns seem to be fair game
for cross-examination at trial, but really the factors in assessment
of indicia or reliability deals with factors independent of the
statement of the child as to the declarant.
Those factors include spontaneity, which this appears, if
accepted by the [c]ourt to be a spontaneous admission or
acknowledgment of the child.
And the next factor, I will concede that it’s inconsistent from
the other statements they heard, but there’s talk of other factors
including mental state of declarant, use of unexpected terms, lack
of motive to fabricate. We really haven’t heard anything about any
motive to fabricate. There was some testimony that these were
big words for the child and there was also testimony that the child
was rather emotional upon this disclosure.
So is -- I guess upon consideration of those factors, how
does that alter or affect the argument that you are making?
[DEFENSE COUNSEL]: My argument would be that those factors
are dependent upon the credibility and the accuracy of the
witness’s statement and when the witness is stating that he has a
traumatic brain injury and his memory is jumbled, I don’t believe
that the [c]ourt can rely on the accuracy of it being spontaneous
or consistent or using big terms.
That would be my argument.
THE COURT: This witness didn’t say he wasn’t able to recall. He
admitted some cloudiness or confusion. It took him a few minutes
to clarify his answers.
I understand your argument.
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[DEFENSE COUNSEL]: That's the credibility issue, and if the
[c]ourt is satisfied with that then.
THE COURT: Very well.
Ms. Ponessa?
[THE PROSECUTOR]: Yes, Your Honor. Just adding on everything
that you said, credibility, obviously, is a question for the jury. And
also he did say that he remembered these things. And I wouldn’t
say they are extremely inconsistent from what he said to the
officer at the time; maybe a few things are a little different. But it
was the same thing about him showing the masturbating and that
[Appellant] taught him to get the sperm out of the testicles.
Although testicles might have been a big word, again he said that
he learned this from [Appellant] but used the word pee pee to
describe his penis, which is terminology expected of his age.
There’s no motive to fabricate; that was completely
spontaneous. And there’s nothing to indicate that his mental state
-- the child’s mental state that there are any deficiencies there.
So I would request that the statement be brought in.
THE COURT: All right. Very well. Then upon consideration of the
matter, I will note that the child is -- the [c]ourt is aware that the
child is going to testify at the proceeding. It resolves any proffer
related claims.
Upon consideration of the appropriate factors, I will grant
the Commonwealth’s motion to admit all three of the proffered
statements into evidence at trial under the Tender Years
Exception.
Id. at 51-54.
Before making its determination, the trial court had the benefit of not
only Mr. Joseph’s testimony, but also that of Ms. Stover and Ms. Melton. In
rendering its decision, the court considered the inconsistences in the
terminology the Child used when speaking to these adults as well as his
emotional reactions as he related his allegations to Mr. Joseph. Furthermore,
it noted at the Tender Years Statute hearing that Appellant could explore Mr.
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Joseph’s brain injury and memory difficulties on cross-examination at trial;
however, this topic was not raised at that time. Id. at 122-126. Furthermore,
the Commonwealth called then ten-year-old B.T.P. as its first witness at trial,
and he was subject to an extensive cross-examination. Id. at 89-116.
In setting forth his arguments in support of his issue presented on
appeal, Appellant essentially asks this Court to reweigh Mr. Joseph’s testimony
and make our own credibility determinations to reach a different result. This
we cannot do. In light of the foregoing, we find the trial court did not abuse
its discretion in finding the challenged statements demonstrated sufficient
indicia of reliability to be admissible under 42 Pa.C.S.A. § 5985.1 of the Tender
Years Statute.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
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