Commonwealth v. Tyrrell ( 2018 )

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2018 PA Super 5COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JONATHAN ROBERT TYRRELL
Appellant No. 2011 MDA 2016
Appeal from the Judgment of Sentence Entered October 4, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0005166-2014
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
OPINION BY STABILE, J.: FILED JANUARY 17, 2018
Appellant, Jonathan Robert Tyrrell, appeals from the October 4, 2016
judgment of sentence imposing an aggregate 50 to 100 years of incarceration
followed by ten years of probation for rape of a child, rape of a child resulting
in serious bodily injury, indecent assault, unlawful contact with a minor, and
corruption of minors.1 The victim [“S.B.”] was Appellant’s then eight-year-old
daughter. We affirm.
The offenses occurred on April 2, 2014. Police arrested Appellant on
August 26, 2014 after he gave a statement. Appellant filed a pre-trial motion
to suppress his statement, but the trial court denied Appellant’s motion at the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(c) and (d), 3126, 6138, and 6301, respectively.
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conclusion of a May 6, 2016 hearing. After another pre-trial hearing, on May
23, 2016, the trial court granted the Commonwealth’s request to present
S.B.’s testimony via closed-circuit television. The trial court also ruled that
S.B.’s testimony was not tainted under the standards of Commonwealth v.
Delbridge, 855 A.2d 27 (Pa. 2003) (“Delbridge I”), and Commonwealth
v. Delbridge, 859 A.2d 1254 (Pa. 2004) (“Delbridge II”). A jury trial
commenced on July 6, 2016. At the conclusion of trial, the jury found
Appellant guilty of the aforementioned offenses.
In this timely appeal, Appellant presents three issues for our review:
I. Did not the court err in failing to suppress statements
that the police obtained from [Appellant] when the statements
were not the product of a free, intelligent, knowing, voluntary,
informed and explicit waiver by [Appellant] of his privilege against
self-incrimination and right to counsel with prior interrogation?
II. Did not the court err in entering an order under 42
Pa.C.S.A. § 5985 that the trial testimony of the minor complainant
be taken under oath or affirmation in a room other than a
courtroom and transmitted by a contemporaneous alternative
method?
III. Did not the court err in finding that the minor
complainant was competent to testify when [Appellant] proved by
clear and convincing evidence that she had a ‘tainted’ recollection
under the standards adopted by the Pennsylvania Supreme Court
in [Delbridge I and Delbridge II]?
Appellant’s Brief at 7.
Appellant first argues that the trial court erred in denying his motion to
suppress his statement to police. We review that argument as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
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determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court’s factual
findings are supported by the record, [the appellate court is]
bound by [those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to [ ] plenary
review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017).
Appellant argues that he did not give a knowing, intelligent, and
voluntary waiver of his Miranda2 rights. At the suppression hearing,
Appellant testified that he was alone with police officer John Cassidy O’Connor
for a minute or a minute and a half prior to the beginning of his recorded
statement. N.T. Hearing, 5/6/16, at 56. Appellant testified that, during that
time, O’Connor threatened to arrest his wife if he declined to give a statement.
Id. at 57-58. Appellant claimed his will was overborne and he agreed to give
a statement out of concern for the wellbeing of his wife. Id. at 58-59.
O’Connor denied making any such threat. Id. at 63-64.
The trial court addressed this issue as follows:
[T]he recorded interview lasted for over two hours after the
alleged threat with Appellant initially denying and then slowly
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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revealing information. In fact, his final statement was not even a
confession to rape, it was an admission that there was an accident
and [S.B.] was injured. As such, we found that his testimony that
he felt threatened by Det. O’Connor to lack credibility. The
portions of the interview we viewed at the hearing show a calm
interview and Det. O’Connor indicated that his tone remained the
same throughout. It is hard to fathom that someone who was so
worked up about his wife after such a threat would take more than
two hours to finally admit that perhaps an accident occurred that
harmed his daughter.
Trial Court Opinion, 2/17/17, at 7-8.
Thus, Appellant’s assertion of an involuntary statement rests largely on
a credibility determination and not on a conclusion of law. The record supports
the trial court’s finding that no threat occurred. First, O’Connor denied it, and
the trial court was entitled to believe him. Further, the record supports the
trial court’s finding that the course of the two-hour interview—including
Appellant’s early denial of any wrongdoing—is inconsistent with Appellant’s
claim that he agreed to speak in order to protect his wife. In summary, the
record supports the finding that O’Connor did not procure Appellant’s
statement with a threat. Appellant offers nothing else to support a conclusion
that his statement was involuntary. Appellant’s first argument lacks merit.
Next, Appellant argues the trial court erred in granting the
Commonwealth’s motion to present S.B.’s testimony via closed circuit
television. Section 5985 of the Judicial Code governs testimony by a
contemporaneous alternative method:
(a) Contemporaneous alternative method.--Subject to
subsection (a.1), in any prosecution or adjudication involving a
child victim or a child material witness, the court may order that
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the testimony of the child victim or child material witness be taken
under oath or affirmation in a room other than the courtroom and
transmitted by a contemporaneous alternative method. Only the
attorneys for the defendant and for the Commonwealth, the court
reporter, the judge, persons necessary to operate the equipment
and any person whose presence would contribute to the welfare
and well-being of the child victim or child material witness,
including persons designated under section 5983 (relating to
rights and services), may be present in the room with the child
during his testimony. The court shall permit the defendant to
observe and hear the testimony of the child victim or child
material witness but shall ensure that the child cannot hear or see
the defendant. The court shall make certain that the defendant
and defense counsel have adequate opportunity to communicate
for the purposes of providing an effective defense. Examination
and cross-examination of the child victim or child material witness
shall proceed in the same manner as normally permitted.
(a.1) Determination.--Before the court orders the child
victim or the child material witness to testify by a
contemporaneous alternative method, the court must determine,
based on evidence presented to it, that testifying either in an open
forum in the presence and full view of the finder of fact or in the
defendant’s presence will result in the child victim or child material
witness suffering serious emotional distress that would
substantially impair the child victim’s or child material witness’s
ability to reasonably communicate. In making this determination,
the court may do all of the following:
(1) Observe and question the child victim or child
material witness, 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
victim or child material witness in a medical or therapeutic
setting.
42 Pa.C.S.A. § 5985(a), (a.1).
In Commonwealth v Charlton, 906 A.2d 554, 559 (Pa. Super. 2006),
appeal denied, 911 A.2d 933 (Pa. 2006), the Commonwealth presented the
expert testimony of the child victim’s treating psychotherapist. The
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psychotherapist testified that the victim suffered “depression, suicidal
thoughts, and post-traumatic stress disorder which likely would impact her
ability to testify effectively. Id. Likewise, the psychotherapist testified that
the defendant’s presence in the courtroom would send the victim “into an
emotional tailspin.” Id. Given this testimony, we found no error in the trial
court’s decision to permit the victim to testify via closed circuit television. Id.Similarly, in Commonwealth v. Torres-Kuilan, 156 A.3d 1229, 1230
(Pa. Super. 2017), the victim, seven years old at the time of trial, broke down
and cried and refused to enter the courtroom to testify. The trial court
conducted an in camera hearing to determine whether to permit the child to
testify via closed circuit television. The court heard testimony from the victim
and a woman who had been keeping the victim company that morning and
ultimately decided to permit the victim to testify remotely. Id. We affirmed,
reasoning that the trial court’s observations are a sufficient basis for
permitting remote testimony under § 5985(a.1)(1).
Instantly, the trial court heard the expert testimony of Mindy Bell, a
“licensed professional counselor.” N.T. Hearing, 5/23/16, at 6. Bell testified
that she believed it would be “traumatic” for S.B. to testify in open court in
front of her father and others. Id. at 33. Asked why she believed that, Bell
responded:
Because of how hard it was for her to disclose to me;
because as with any child, they still feel a certain loyalty to their
parent. So I think it would be very difficult for her to be in the
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same room with her father and a bunch of witnesses and say what
happened.
Id.
Tricia Deatrick, a caseworker for Dauphin County Children and Youth
Services, testified as a fact witness. Deatrick said that S.B. suffered because
her allegations against Appellant broke her family up. Id. at 62. As of the
time of trial, S.B. and her siblings were in foster care. Id. Also,
[S.B.] has struggled a great deal with anxiety and
depression and PTSD. And this has all just amplified her
symptoms. She’s really struggling. She feels a lot of—a lot of
different feelings, but she still really loves both of her parents and
she’s really struggled with that, the love that she has for them
and then what happened to her as well as, you know, the not [sic]
belief that she has from her family.
On top of it, she has not seen [Appellant] in over a year and
a half, and that’s a huge deal for her. And for her to—she’s talked
about for this day, date that she has to tell her story to be the day
that she has to see him for the first time in a year and a half, how
scarey [sic] that is for her.
And I just don’t think she’s ready to stand in a courtroom
facing him and be able to tell her story. I think she’s really just
not in a place for that yet.
Id. at 62-63.
Few published decisions address § 5985, and those that do have not
announced a standard for reviewing the trial court’s decision. In Torres-
Kuilan, this Court employed the principles of statutory construction to
determine whether the Commonwealth’s proffer complied with § 5985’s
terms. Torres-Kuilan, 156 A.3d at 1231-32. The Court observed: “a
statute’s plain language provides the best indication of legislative intent. We
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will only look beyond the plain language of the statute when words are unclear
or ambiguous, or the plain meaning would lead to ‘a result that is absurd,
impossible of execution or unreasonable.’” Id. at 1231 (quoting 1 Pa.C.S.A.
§ 1922(1)).
Based on the hearing testimony discussed above, we conclude that the
Commonwealth’s proffer complied with the plain language of § 5985(a.1)(2),
which permits a witness to testify via closed circuit television based on the
testimony of “any other person, such as a person who has dealt with the child
victim or child material witness in a medical or therapeutic setting.” 42
Pa.C.S.A. § 5985(a.1)(2). Appellant argues for a contrary result because S.B.
did not testify, S.B.’s current counselor did not testify, Bell had not seen S.B.
for approximately nine months prior to the trial, S.B.’s foster parents did not
testify, Bell’s expert opinion did not conform to § 5985(a.1), and Deatrick was
not qualified as an expert. In each case, Appellant seeks to impose a
requirement that does not appear in the statute. Section 5985 does not
require testimony from the proposed witness or the witness’ current
counselor. Nor does it require testimony from a parent/foster parent or an
expert witness. Appellant did not object when Deatrick opined that Appellant
was not ready to appear in court and testify in the presence of her father.
N.T. Hearing, 5/23/16, at 63.
Concerning Appellant’s argument that Bell’s testimony failed to conform
to the standard of § 5985(a.1), Appellant notes that the Commonwealth in
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Charlton presented the victim’s current counselor; that the counselor in
Charlton gave testimony that closely tracked the language of § 5985; that
the trial judge in Torres-Kuilan personally observed the victim break down
as she was entering the courtroom; and that the trial judge in Torres-Kuilan
conducted an in camera hearing. Appellant’s Brief at 31-33. We find
Appellant’s argument unavailing, as the distinct facts of published cases do
not add to or alter the applicable statutory language. The testimony of Bell
and Deatrick clearly supports a finding that Appellant’s presence would have
caused serious emotional distress and impaired her ability to communicate.
We do not believe § 5985 requires a testifying witness to use any specific
phrasing. Further, nothing in the statute requires the trial judge to observe
the victim, in an in camera hearing or otherwise. We discern no error in the
trial court’s decision to permit S.B. to testify via closed circuit television.
Finally, Appellant argues that S.B. was not competent to testify because
coercive interrogation techniques tainted her recollection. Our Supreme Court
addressed this issue in Delbridge I and II. Our Supreme Court has held that
“[c]ompetency is the rule and incompetency the exception.” Rosche v.
McCoy, 156 A.2d 307, 309 (Pa. 1959). To be deemed competent, a child
witness must demonstrate:
1) such capacity to communicate, including as it does both
an ability to understand questions and to frame and express
intelligent answers, (2) mental capacity to observe the occurrence
itself and the capacity of remembering what it is that she is called
to testify about and (3) a consciousness of the duty to speak the
truth.
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Id. at 310 (emphasis in original). The Rosche Court noted, “children are
peculiarly susceptible to the world of make-believe and of suggestions.” Id.
Delbridge I described taint as “the implantation of false memories or
distortion of actual memories through improper and suggestive interview
techniques[.]” Delbridge I, 855 A.2d at 30. As such, it relates to the second
prong of the Rosche test, the child’s mental capacity to observe, recall, and
testify about the occurrence. Id. at 40.
The Supreme Court permitted pretrial examination of possible witness
taint “where there is some evidence of improper interview techniques,
suggestive questioning, vilification of the accused and interview bias may have
influenced a child witness to such a degree that the proffered testimony may
be irreparably compromised.” Id. at 39. Taint is distinct from credibility. Id.
at 40. Taint bears on a witness’s competence, and it is the proper subject of
a pre-trial competency hearing. Id. Credibility is a matter for the finder of
fact. Id. The party asserting incompetence bears the “burden of production
of evidence to show taint and persuasion to show taint by clear and convincing
evidence. Id. at 40. “The 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.” Id. at 41. We
review the trial court’s competency finding for abuse of discretion. Id. at 41.
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Post-remand, the Supreme Court in Delbridge II upheld the trial
court’s finding that the defendant failed to demonstrate the presence of taint.
Delbridge II, 859 A.2d at 1258. The defendant “failed to elicit any testimony
[…] supporting the allegations that [the victims] had been subjected to
repetitive, suggestive, or coercive interview techniques, to interviewer bias,
or to inappropriate influence from their mother.” Id.
Instantly, Appellant notes that S.B. did not disclose Appellant’s sexual
abuse in forensic interviews that occurred on April 7, 2014 and February 12,
2015. S.B.’s first disclosure of sexual abuse came in a journal entry she
provided to Bell on March 23, 2015 after Bell encouraged S.B. to keep a
journal and describe memories and feelings. Thus, S.B.’s first disclosure of
abuse occurred more than eleven months after the date of the alleged assault.
Likewise, S.B. disclosed Appellant’s sexual abuse to Deatrick when Deatrick
visited her in her foster home on June 22, 2015. Finally, in an April 28, 2016
forensic interview, S.B. disclosed Appellant’s sexual abuse to law enforcement
authorities after a thirteen-minute break in the interview, during which she
spoke to Deatrick, among others.
Bell and Deatrick were the only two witnesses to testify at the
competency hearing. Bell testified that, when she began her sessions with
S.B., she was aware of the allegations of S.B.’s sexual abuse. N.T. Hearing,
5/23/16, at 27. Bell conducted two or three rapport building sessions and
then encouraged S.B. to start “journaling and talking with her foster mom
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about trauma or anything that had happened to her.” Id. at 28. Bell did not
ask for S.B. and her foster mother to work on the journaling together. Id. at
29. Rather, “[t]he journaling was really [S.B.’s]. I just wanted her foster
mom to be support in case she came—you know, had some negative emotions
from anything she was journaling about.” Id. at 29. Bell testified that she
did not give S.B. specific instructions on how to journal: “I basically just told
her to journal. Now, once she disclosed, I told her to journal if she could
remember more things and how she felt. That would have been the only
direction I gave her with respect to journal entries.” Id. at 45. Bell testified
that she did not use leading questions in her sessions with S.B.. Id. at 31.
As noted above, S.B. disclosed Appellant’s sexual assault to Bell via journal.
Id.
Deatrick described her first meeting with S.B. this way:
When I introduced myself to [S.B.], she asked me if I knew
why she was in foster care. And I explained that I knew what was
in the record. And she asked me, you know—or I asked her if she
wanted to tell me anything. I said, ‘I know what’s in the record.’
I said, ‘Don’t know if that’s all of the truth or, you know, if there’s
anything more you want to tell me, but if you’d like to tell me
something, I’ll listen; and if you don’t, that’s okay.’
At first [S.B.] did talk a little bit and then said she wanted
to stop talking, so she stopped and she left the room. And then I
spoke with her two siblings. And during my conversation with her
sister […], [S.B.] came back in and she wanted to tell me the
truth.
Id. at 56.
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We discern no abuse of discretion in the trial court’s finding that no taint
existed. Here, as in Delbridge II, Appellant produced no evidence that S.B.
was subjected to “repetitive, suggestive, or coercive interview techniques, to
interviewer bias, or to inappropriate influence” from any party. Delbridge
II, 859 A.2d at 1258. The record reflects only that Bell encouraged S.B. to
journal, and that Deatrick asked S.B. if she wanted to tell her anything.
Appellant produced no evidence that S.B.’s foster mother or anyone else close
to S.B. exerted any improper influence. In short, there is no evidence that
S.B.’s testimony was compromised in any way. We agree with the trial court
that Appellant failed to carry his burden of proving taint by clear and
convincing evidence.
In summary, we conclude that each of Appellant’s arguments lacks
merit. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2018
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