Com. v. Moore, A. ( 2021 )

J-A04026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDRE MOORE :
:
Appellant : No. 755 EDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005396-2018
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JUNE 30, 2021
Appellant, Andre Moore, appeals from the judgment of sentence entered
in the Delaware County Court of Common Pleas, following his jury trial
convictions for aggravated indecent assault of a person less than thirteen,
indecent assault of a person less than thirteen, corruption of minors, and
aggravated indecent assault of a child.1 We affirm.2
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3125(a)(7), 3126(a)(7), 6301(a)(1)(i), and 3125(b),
respectively.
2 This panel initially issued a decision on April 23, 2021, affirming Appellant’s
judgment of sentence. On April 27, 2021, Appellant timely filed a motion for
reconsideration, arguing that this Court erred in determining that he waived
his Pa.R.Crim.P. 600 claim for failing to develop it sufficiently in his appellate
brief. Specifically, Appellant asserted that this Court “failed to consider the
(Footnote Continued Next Page)
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The relevant facts and procedural history of this appeal are as follows:
…[V]ictim…was eleven and in sixth grade, living with her
aunt, E.P.,2 in Chester, Delaware County. Appellant was
E.P.’s boyfriend at the time of the assault.
2 This [c]ourt will use the initials of…[V]ictim’s aunt in
order to protect…[V]ictim’s anonymity.
During the time that…[V]ictim was residing with E.P.,
Appellant would come over and stay at the residence. One
day, …[V]ictim came home from school and was watching
television in her room; no one else was home. A couple of
hours later, Appellant entered the home and asked…[V]ictim
if she would like to watch a movie in E.P.’s room. …[V]ictim
turned off her tv and went with Appellant into E.P.’s room
to watch a movie; it was not uncommon for the household
to watch movies in E.P.’s bedroom. …[V]ictim laid down on
the bed, resting her head on the pillows. Appellant laid
down in the same direction, on the left-hand side
of…[V]ictim. While they were watching the movie, Appellant
began rubbing…[V]ictim’s vagina, underneath her clothing,
with his fingers. It lasted for a couple of minutes and it
hurt; Appellant asked her if she ever touched herself “down
there” or if she wanted him to touch her. Because she was
scared to move or answer, …[V]ictim laid there, facing the
tv and remained silent. …[V]ictim was confused as to why
it was happening, but she wanted it to stop, so she asked if
she could go to the bathroom down the hall. Appellant
stopped the touching at that point, and…[V]ictim walked
down the hall to the bathroom.
…[V]ictim went into the bathroom, shut the door, but did
not lock it because the lock does not work. As she was
finishing going to the bathroom and pulling up her pants,
Appellant walked in and pulled down his own pants and
told…[V]ictim to “turn around.” …[V]ictim turned around
and she could feel Appellant rubbing his penis between her
legs. She did not physically see his penis, but she felt it on
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arguments made in [his] Reply Brief which fully address his Rule 600 claim.”
(Appellant’s Petition for Panel Reconsideration, filed 4/27/21, at 2). We
granted reconsideration on June 3, 2021, and now issue this memorandum.
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her bare skin as her pants were still down at this point. As
he was rubbing his penis between her legs, Appellant had
his hands grabbing onto her waist. Appellant’s penis was
not inside of…[V]ictim’s vagina. When Appellant stopped
the rubbing, he told…[V]ictim to clean off and he left the
bathroom. …[V]ictim used a washcloth to wipe off and went
back into her own bedroom. Appellant walked by the door
of her room and told her not to tell her aunt what had
occurred. When he walked away, …[V]ictim began crying.
At this point, it was nighttime, and she fell asleep without
seeing her aunt that evening.
The following morning, …[V]ictim saw her aunt but did not
tell her what happened with Appellant the night before
because she was too scared that her aunt would be mad at
her and would not believe her.
Although she did not tell her aunt, …[V]ictim told her friend,
M.C. (also eleven at the time) as they were walking to school
that day. M.C. and…[V]ictim are close friends, and both
were in the same class at Toby Farms Elementary. M.C.
and…[V]ictim walked to school together, as they usually do.
M.C. noticed that…[V]ictim was acting differently, being
much more quiet than usual. When they had reached the
school, but were still outside, …[V]ictim handed M.C., her
notebook. M.C. opened the notebook, recognized the
handwriting inside to be…[V]ictim’s and read a sentence
that said a guy stuck his finger inside of [Victim] and had
sex with her. After she read it, M.C. told…[V]ictim to rip out
the page and throw it away because she did not want other
people to see it. M.C. felt like it would make the other kids
at school talk about her. M.C. saw…[V]ictim rip the page
out of the notebook and throw it away.
During the school day, …[V]ictim also told another friend,
J.M. (also a minor), who then accompanied her to the
principal’s office, where she told the Vice Principal, Dr.
Lorrain Baptiste.
Dr. Baptiste had been the Vice Principal at Toby Farms
Elementary School for a total of two years; she was familiar
with…[V]ictim as a 6th grader in her school at the time. On
May 30, 2018, in the morning hours, …[V]ictim had come
into the office with her friend; she was very quiet, and her
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friend kept saying to her “tell her.” …[V]ictim told Dr.
Baptiste, that she “was raped” at which point, Dr. Baptiste
excused the friend from the office. Knowing that children
that young can sometimes misinterpret the meaning of such
a heavy word, she asked…[V]ictim to explain more of what
happened. …[V]ictim told Dr. Baptiste that she was sitting
at home at her aunt’s house, where she and her aunt’s
boyfriend were watching television; the boyfriend began
touching her inappropriately, so she got up from the sofa
and went to the bathroom and he followed her inside the
bathroom and touched her again. Dr. Baptiste asked if the
touching was of her private parts, and…[V]ictim answered
“yes.” Dr. Baptiste asked what happened in the bathroom
and…[V]ictim told her that she had gone to the bathroom,
and that she was sitting on the toilet when he came in and
started touching her again. …[V]ictim stated that her aunt
was at work at the time because she works nights. Dr.
Baptiste did not want to get too far into the conversation
before alerting the social worker, so she asked…[V]ictim if
she was hurt or bruised and…[V]ictim stated that she was
not. At that point, Dr. Baptiste told the Principal, who placed
a call to the District’s social worker. Dr. Baptiste used the
word “rape” in the report but also used the word “fondling”
because the actions that…[V]ictim described to her seemed
to fit that description over the word rape. …[V]ictim seemed
shy and ashamed at first but did not appear apprehensive
or scared once she started talking. Dr. Baptiste did not take
notes of their meeting because she knows that is the job of
the social worker.
As a result of…[V]ictim’s disclosure, Ms. Tammy Cox-
Cottman, school social worker for Chester Upland School
District, which includes Toby Farms Intermediate School,
was called to come speak with…[V]ictim. It is District policy
that a social worker become involved in any child abuse
situations in order to make the report to Child Line. Ms.
Cox-Cottman arrived at the school shortly after she was
requested; she knows that it was May 30, 2018. When she
spoke with…[V]ictim, …[V]ictim told her that her aunt’s
boyfriend, [Appellant], touched her breasts and vagina area
during a movie, that he asked her to watch, while they were
both inside her aunt’s home; her aunt was at work.
…[V]ictim told Ms. Cox-Cottman that she asked to go to the
bathroom, but he had come into the bathroom while she
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was in there and asked her to bend over and [h]e began
rubbing his penis against her backside. Ms. Cox-Cottman
made notes of the interaction. …[V]ictim told Ms. Cox-
Cottman that Appellant told her not to tell anyone. Ms. Cox-
Cottman believed that…[V]ictim told her the touching
occurred while her clothing was on. Based upon the
information provided, Ms. Cox-Cottman made a formal
report of child abuse to the Child Line Hotline.
As it was the end of the school day, …[V]ictim’s aunt, was
already on her way to pick her up. Ms. Cox-Cottman
had…E.P. come into the room with her and…[V]ictim.
Although…[V]ictim was not crying when talking to Ms. Cox-
Cottman, as soon as she saw her aunt, she broke down and
started crying.
E.P., was told by…[V]ictim that something had happened to
her the night before. …[V]ictim told E.P., that she didn’t
want to tell her because [Victim] thought that she would be
blamed since Appellant was [E.P’s] boyfriend. E.P. recalled
that the night before, she had come home from work, she
saw the lights and tv on in…[V]ictim’s room, but she
thought…[V]ictim was asleep, so she just turned them off.
Appellant had called E.P. earlier in the day and said that he
would be going over and that he could be there when she
got home from work. According to E.P., it was normal for
people to watch tv in her room.
As a result of the call to Child Line, on June 11, 2018,
…[V]ictim met with Ms. [Susanne Hawkins Whiting], who
works at the Delaware County Children’s Advocacy Center,
an organization whose focus is to bring together different
child serving agencies for the coordination of investigation
of child abuse. In her position as a Child Forensic
Interviewer, she would conduct [interviews] with children
who were victims or witnesses to a crime or abused, either
physically or sexually, in order [to] elicit information about
their experiences. …[V]ictim told Ms. Whiting that Appellant
touched her vaginal area with his fingers and also that he
rubbed his penis on her behind area.
Officer Jennifer Jones, of the Chester City Police Department
also became involved in the case as a result of her title as a
Juvenile Investigator. Officer Jones specifically handles
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investigations on cases that involve children under the age
of eighteen as a victim. Officer Jones received a report from
Child and Youth Services that…[V]ictim had made a report
of sexual abuse with Appellant as the abuser. As a result of
the report, Officer Jones made contact with…[V]ictim’s aunt,
E.P., who informed Officer Jones as to what…[V]ictim told
her had occurred. Officer Jones set up the interview
between…[V]ictim and the Child Advocacy Center. Officer
Jones was present at the interview but was not there to ask
questions, more so to sit and listen; if she had any questions
that she wanted asked, she would relay them to the
interviewer. …
(Trial Court Opinion, filed June 15, 2020, at 1-7) (internal citations and some
footnotes omitted).
The Commonwealth filed a criminal complaint and issued an arrest
warrant for Appellant on June 20, 2018, and the court subsequently scheduled
a preliminary hearing. The Commonwealth made two requests for the court
to reschedule the preliminary hearing, from July 10, 2018 to July 31, 2018,
and from July 31, 2018 to August 7, 2018, due to “Witness Unavaila[bility].”
(Application for Continuance at 1, unpaginated). The magisterial district judge
also continued the case from August 7, 2018 to August 28, 2018, due to
“recusal.” (Id.) The preliminary hearing was further continued until
September 4, 2018, and again until September 11, 2018, because the
“Defendant [was] Not Ready.”3 (Criminal Docket at 1). The court finally
conducted the preliminary hearing on September 11, 2018, and Appellant
____________________________________________
3 The record suggests that the Commonwealth requested the continuance
from August 28, 2018 to September 4, 2018, while the September 4, 2018 to
September 11, 2018 request appears to have been made by Appellant.
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waived formal arraignment on October 10, 2018.
On November 30, 2018, Appellant filed a motion in limine to exclude
evidence of his prior crimen falsi convictions. The Commonwealth filed on
December 4, 2018, a motion to admit as impeachment evidence Appellant’s
most recent crimen falsi conviction for receiving stolen property. On the same
day, the Commonwealth also filed a petition seeking to admit Victim’s out-of-
court statements to Susanne Hawkins Whiting4 and Dr. Lorrain Baptiste under
the “Tender Years” exception to the rule against hearsay. The court scheduled
a hearing on the motion and petition for December 20, 2018. On December
18, 2018, the Commonwealth filed an amended “Tender Years” petition,
requesting that Victim’s statements to E.P. be admitted as well. The court
conducted an initial hearing on the motion/petition as scheduled on December
20, 2018, during which Dr. Baptiste and E.P. testified and the court admitted
Victim’s interview with Ms. Whiting as evidence. During Dr. Baptiste’s and
E.P.’s testimony, the witnesses mentioned that the school district’s social
worker, Ms. Cottman, also spoke with Victim about the alleged abuse. At the
conclusion of testimony, the court decided to continue the hearing until
January 25, 2019, to allow for the Commonwealth to present testimony from
Ms. Cottman. The court explained that it felt Ms. Cottman was a “key
individual in this whole scenario…because she’s in between Dr. Baptiste and
____________________________________________
4 The Commonwealth incorrectly referred to Ms. Whiting as Susanne Blessing
in this petition.
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[E.P.],” and without her testimony, “[t]here’s a gap.” (N.T. Hearing,
12/20/18, at 42-43).
On January 25, 2019, the Commonwealth requested another
continuance, due to having “just identified” a new witness. (Delaware County
Court of Common Pleas Filings Information at 2). The court rescheduled the
hearing for February 15, 2019. On February 14, 2019, the Commonwealth
filed an amended “Tender Years” petition, requesting Victim’s statements to
Ms. Cottman and M.C. be admitted under the “Tender Years” hearsay
exception as well. The court conducted the second portion of the “Tender
Years” hearing on February 15, 2019. At the conclusion of the hearing, the
court ordered both sides to submit findings of fact and conclusions of law. The
court initially scheduled final argument on the motions for March 28, 2019,
but later rescheduled it for April 18, 2019. Following the hearing on April 18,
2019, the court ordered the parties to brief the issues, and scheduled a status
conference for May 30, 2019.
On April 30, 2019, the Commonwealth filed an amended motion to
introduce Appellant’s crimen falsi conviction as impeachment evidence. On
May 8, 2019, the Commonwealth also filed a brief in support of its requests
to admit Victim’s out-of-court statements to M.C., Dr. Baptiste, Ms. Cottman,
E.P. and Ms. Whiting under the “Tender Years” exception to the rule against
hearsay. The court issued an order on May 29, 2019, deeming the hearsay
statements of Dr. Baptiste, Ms. Cottman, and Ms. Whiting “admissible as
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substantive evidence,” but determining the hearsay statements of E.P. and
M.C. were “not…admissible as substantive evidence.” (Order, 5/29/19, at 1).
On the same day, the court also entered an order denying the
Commonwealth’s motion to admit Appellant’s prior conviction as impeachment
evidence. The court then scheduled a jury trial for September 10, 2019.
On July 19, 2019, Appellant filed a motion to dismiss pursuant to
Pa.R.Crim.P. 600. The court conducted a Rule 600 hearing on September 6,
2019, and denied the motion the same day. Appellant proceeded to a jury
trial on September 10, 2019, at which Victim, M.C., Ms. Cottman, Ms. Whiting,
and E.P. testified and the court played recordings of Ms. Whiting’s interview
with Victim and Dr. Baptiste’s “Tender Years” hearing testimony.5 On
September 12, 2019, the jury convicted Appellant of the above-mentioned
offenses. The court sentenced Appellant on November 26, 2019, to an
aggregate term of 11 years and 3 months to 22½ years’ imprisonment, plus
3 years’ probation. Appellant filed a timely post-sentence motion on
November 27, 2019, challenging the weight and sufficiency of the evidence.
The court denied the motion on February 3, 2020. On February 21, 2020,
Appellant filed a timely notice of appeal. The court ordered Appellant on
February 25, 2020, to file a concise statement of errors complained of on
appeal per Pa.R.A.P. 1925(b); Appellant complied on March 21, 2020.
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5 Dr. Baptiste was unavailable to testify at trial due to having moved to Dubai.
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Appellant raises three issues for our review:
Whether the evidence is insufficient to sustain the conviction
for aggravated indecent assault where the trial testimony
and other evidence fails to prove, beyond a reasonable
doubt, that Appellant’s purported conduct with regard to the
alleged victim amounted to any type of penetration,
however slight, of the alleged victim’s genital area?
Whether the trial court erred in allowing the Commonwealth
to admit the hearsay testimony of certain individuals—
Su[s]anne Hawkins Whiting, M.C. (a minor), Tammy Cox-
Cottman, [E.P.], and Lorrain Baptiste—under the tender
years hearsay exception, where the statements of the
alleged victim that they each testified about were not
sufficiently reliable on the basis of consistency or
spontaneity?
Whether the trial court erred in denying Appellant’s motion
to dismiss pursuant to Pa.R.Crim.P. 600 where the delays in
this matter resulted from the Commonwealth’s failure to
exercise due diligence, causing trial to commence three
months after the run date?
(Appellant’s Brief at 9).
In his first issue, Appellant argues the evidence was insufficient to
establish that he committed aggravated indecent assault. Specifically,
Appellant contends the evidence presented at trial was insufficient to support
a finding that he penetrated Victim’s genitals or anus. Rather, Appellant
maintains Victim’s testimony established only that he placed his fingers on top
of Victim’s vagina, not inside of it. Appellant avers the only evidence indicating
penetration occurred, M.C’s testimony concerning Victim’s handwritten
message in a notebook, constitutes hearsay within hearsay. In contrast,
Appellant highlights the testimony of the other “Tender Years” witnesses,
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which Appellant feels indicated “that all of the touching of [Victim’s] genital
area was over the top of clothing that she was wearing.” (Appellant’s Brief at
22). As Appellant contends the Commonwealth failed to prove the element of
penetration, Appellant concludes this Court must vacate his convictions for
aggravated indecent assault. We disagree.
When examining a challenge to the sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
The Crime Code defines aggravated indecent assault in relevant part as
follows:
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§ 3125. Aggravated indecent assault
(a) Offenses defined.—Except as provided in section
3121 (relating to rape), 3122.1 (relating to statutory sexual
assault), 3123 (relating to involuntary deviate sexual
intercourse) and 3124.1 (relating to sexual assault), a
person who engages in penetration, however slight, of the
genitals or anus of a complainant with a part of the person’s
body for any purpose other than good faith medical,
hygienic or law enforcement procedures commits
aggravated indecent assault if:
(1) the person does so without the complainant’s
consent;
(2) the person does so by forcible compulsion;
(3) the person does so by threat of forcible
compulsion that would prevent resistance by a person
of reasonable resolution;
(4) the complainant is unconscious or the person
knows that the complainant is unaware that the
penetration is occurring;
(5) the person has substantially impaired the
complainant’s power to appraise or control his or her
conduct by administering or employing, without the
knowledge of the complainant, drugs, intoxicants or
other means for the purpose of preventing resistance;
(6) the complainant suffers from a mental disability
which renders him or her incapable of consent;
(7) the complainant is less than 13 years of age…
* * *
(b) Aggravated indecent assault of a child.—A person
commits aggravated indecent assault of a child when the
person violates subsection (a)(1), (2), (3), (4), (5) or (6)
and the complainant is less than 13 years of age.
18 Pa.C.S.A. §§ 3125(a)(1)-(7), and (b). Significantly, this Court has clarified
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that “the term ‘penetration, however slight’ is not limited to penetration of the
vagina; entrance in the labia is sufficient.” Commonwealth v. Hunzer, 868
A.2d 498, 505-506 (Pa.Super. 2005), appeal denied, 584 Pa. 673, 880 A.2d
1237 (2005) (quoting Commonwealth v. Hawkins, 614 A.2d 1198, 1200
n.1 (Pa.Super. 1992)).
Instantly, Victim testified that Appellant rubbed her vagina with his
fingers under her clothing and “it [hurt].” (N.T. Trial, 9/10/19, at 127). Victim
further stated that Appellant rubbed his penis between her legs. (Id. at 130).
While Victim admitted on cross-examination that Appellant did not put his
penis or finger inside of her vagina, such acts were not necessary for the jury
to find that penetration had occurred. Here, Victim’s testimony that Appellant
touched her vagina under her clothing to the point that “it [hurt]” was
sufficient for the jury to determine that Appellant digitally penetrated Victim’s
genitals and was guilty of aggravated indecent assault. See Hunzer, supra;Commonwealth v. Cody, 584 A.2d 992, 993 (Pa.Super. 1991), appeal
denied, 527 Pa. 622, 592 A.2d 42 (1991) (stating: “In a prosecution for sex
offenses, a verdict may rest on the uncorroborated testimony of the victim”).
The Commonwealth also presented the following evidence in support of
Victim’s testimony: (1) the recording of Ms. Whiting’s interview with Victim,
in which Victim states that Appellant rubbed “inside [her] private part” under
her underwear with his finger and “he kept like rubbing it hard so it started
hurting” (Interview, 6/11/18, at 17); (2) Officer Jones’ testimony that she
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wrote in her incident report that Appellant touched Victim’s “chest area and
private parts” and “rubb[ed] her vagina with his fingers” (N.T. Trial, 9/11/19,
at 29); (3) M.C.’s testimony that Victim handed her a composition notebook
containing a handwritten message stating that a man stuck his finger in
Victim’s vagina and had sex with her (Id. at 52); (4) Ms. Cottman’s testimony
that Victim told her Appellant “touched [Victim’s] breasts and her private area,
her vagina area and also that he had asked her to…bend over and he [rubbed]
his penis against her backside, her rear” (Id. at 89-90); (5) Ms. Cottman’s
testimony that Victim told her Appellant “entered the bathroom and fondled
[Victim] and rubbed against her” (Id. at 95); and (5) Dr. Baptiste’s “Tender
Years” hearing testimony in which Dr. Baptiste explained that Victim came to
her office and told her that Appellant inappropriately touched Victim (N.T.
Hearing, 12/20/18, at 12). While Ms. Cottman stated that she remembered
Victim telling her that Appellant touched Victim over her clothing, the jury was
free to believe all, part, or none of the evidence each witness presented. See
Hansley, supra. Thus, viewed in the light most favorable to the
Commonwealth as verdict-winner, the evidence was sufficient to enable the
jury to find beyond a reasonable doubt that Appellant committed aggravated
indecent assault. See 18 Pa.C.S.A. §§ 3125(a)(7) and (b); Hansley, supra.In his second issue, Appellant argues the trial court erred in admitting
the testimony of M.C., Ms. Cottman, Dr. Baptiste, Ms. Whiting, and E.P. under
the “Tender Years” exception to the rule against hearsay. Appellant avers that
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Victim’s statements to these witnesses were “not spontaneous in any way, nor
were they consistent.” (Appellant’s Brief at 25). As to M.C., Appellant
contends all of M.C.’s testimony stemmed from the handwritten statement in
the composition notebook Victim gave to M.C. Appellant maintains such a
written statement cannot be considered spontaneous where it was given to
M.C. the morning following the alleged offense and was “clearly given to her
after deliberate planning.” (Id.). Appellant also claims M.C.’s testimony was
inconsistent with other witnesses’ testimony as to when the alleged offense
occurred, as M.C. testified that Victim told her “something happened to
[Victim] over the weekend” prior to giving M.C. the composition notebook.
(Id. at 26).
Appellant further asserts that Victim’s statements to Ms. Cottman and
Dr. Baptiste were not spontaneous as their conversations with Victim took
place after Victim gave M.C. the handwritten notebook. Additionally,
Appellant points out that Victim was accompanied to Dr. Baptiste’s office by a
friend who encouraged her to talk. Appellant further highlights that Dr.
Baptiste and Ms. Cottman testified that the alleged offense occurred on a sofa,
while Victim testified that the incident occurred on her aunt’s bed.
Appellant also attacks E.P.’s testimony as inconsistent with that of the
other witnesses. Appellant specifically highlights that (1) E.P.’s testimony
focused solely on what happened in the bathroom and did not mention
anything occurring in the bedroom; (2) E.P. testified that Victim was
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completely undressed in the bathroom when the abuse occurred; and (3) E.P.
admitted on cross-examination that Victim never mentioned watching a movie
with Appellant when the abuse occurred. Appellant additionally argues that
Victim’s statements to E.P. were not spontaneous. Appellant emphasizes that
E.P.’s testimony indicates that Victim failed to tell E.P. about the alleged abuse
when E.P. returned from work that evening or when E.P. drove Victim to school
the following morning; Victim only told E.P. of the abuse after Ms. Cottman
instructed her to do so.
Finally, Appellant claims that the hearsay testimony of Ms. Whiting,
derived from an interview with Victim which was conducted nearly two weeks
after the alleged incident occurred, was not spontaneous. Due to the trial
court’s errors in admitting the testimony of these witnesses under the “Tender
Years” exception, Appellant concludes this Court should vacate the judgment
of sentence. We disagree.
“The admissibility of evidence is at the discretion of the trial court and
only a showing of an abuse of that discretion, and resulting prejudice,
constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-
98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189
L.Ed.2d 824 (2014).
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
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actions. Discretion is abused when the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill will.
Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal
denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81
(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).
“Hearsay” is an out-of-court statement offered in evidence to prove the
truth of the matter asserted. Pa.R.E. 801(c). Generally, hearsay testimony
is inadmissible at trial. See Pa.R.E. 802. “The tender years exception allows
for the admission of a child’s out-of-court statement due to the fragile nature
of young victims of sexual abuse.” Commonwealth v. Kriner, 915 A.2d 653,
657 (Pa.Super. 2007) (quoting Commonwealth v. Fink, 791 A.2d 1235,
1248 (Pa.Super. 2002)) (internal quotation marks omitted). The “Tender
Years” exception to the hearsay rule provides:
§ 5985.1. Admissibility of certain statements
(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 12 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:
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(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.
(2) The following offenses under 18 Pa.C.S. (relating to
crimes and offenses) shall apply to paragraph (1):
* * *
Chapter 31 (relating to sexual offenses)
* * *
42 Pa.C.S.A. § 5985.1.
“Any statement admitted under the [“Tender Years” hearsay exception]
must possess sufficient indicia of reliability, as determined from the time,
content, and circumstances of its making.” Commonwealth v. O'Drain, 829
A.2d 316, 320 (Pa.Super. 2003). “The main consideration for determining
when hearsay statements made by a child witness are sufficiently reliable is
whether the child declarant was particularly likely to be telling the truth when
the statement was made.” Commonwealth v. Lyons, 833 A.2d 245, 255
(Pa.Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005). Factors
the court may consider when determining reliability include, but are not
limited to, “the spontaneity of the statements, consistency in repetition, the
mental state of the declarant, use of terms unexpected in children of that age
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and the lack of a motive to fabricate.” Commonwealth v. Delbridge, 578
Pa. 641, 675, 855 A.2d 27, 47 (2003); Lyons, supra.Importantly, however, “[i]ssues not raised in the trial court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “[I]ssues
are preserved when objections are made timely to the error or offense.”
Commonwealth v. Baumhammers, 599 Pa. 1, 23, 960 A.2d 59, 73 (2008),
cert. denied, 558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31 (2009). “The
purpose of contemporaneous objection requirements respecting trial-related
issues is to allow the court to take corrective measures and, thereby, to
conserve limited judicial resources.” Commonwealth v. Sanchez, 614 Pa.
1, 32, 36 A.3d 24, 42 (2011), cert. denied, 568 U.S. 833, 133 S.Ct. 122, 184
L.Ed.2d 58 (2012). “[A] party may not remain silent and afterwards complain
of matters which, if erroneous, the court would have corrected.”
Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.Super. 2008) (quoting
Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974)).
See, e.g., Commonwealth v. Adams, 39 A.3d 310, 319-20 (Pa.Super.
2012), affirmed, 628 Pa. 600, 104 A.3d 511 (2014) (reiterating: “[A]
defendant’s failure to object to allegedly improper testimony at the
appropriate stage…constitutes waiver” and “absence of a contemporaneous
objection below constituted a waiver of appellant’s claim respecting the
prosecutor’s closing argument”).
Instantly, the record makes clear Appellant failed to object at trial to the
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admission of M.C.’s and E.P.’s testimony. (See N.T. Trial, 9/11/19, at 49-80;
107-35). Thus, as it concerns M.C. and E.P., Appellant has waived this issue
for appellate review. See Pa.R.A.P. 302(a); Adams, supra.Further, the trial court analyzed this issue regarding Dr. Baptiste, Ms.
Cottman, and Ms. Whiting as follows:
After a lengthy Tender Years Hearing, this [c]ourt issued an
order that the statements made by…[V]ictim to Dr. Lorrain
Baptiste, Ms. Tammy Cox-Cottman, and Ms. Susanne
Whiting were admissible as substantive evidence because
they clearly established sufficient indicia of reliability to
allow introduction of the occurrence at trial.
The determination was not erroneous for the following
reasons. First, …[V]ictim was eleven at the time of the
assault, therefore satisfying the age element of the statute.
Next, there is no argument that the statements were not
relevant, as they were all directly relevant to the charges.
Third, the statements provided a sufficient indicia of
reliability.
With regard to reliability, the [c]ourt examined the
spontaneity of the statements, the consistency, …[V]ictim’s
mental state, the use of terminology by a child of that age,
and the lack of a motive to fabricate.
As to motive, there exists no motive for…[V]ictim to lie. She
testified herself that Appellant would come over to the
house and that she didn’t have any particular relationship
with him one way or the other. She didn’t hate him, there
was no reason to get rid of him. To the contrary, he was
her aunt’s boyfriend, she was living in her aunt’s house,
there exists every reason for…[V]ictim to not want to uproot
her living situation or risk upsetting her aunt for a fabricated
story.
As to…[V]ictim’s mental state, with each witness, it was
clear that…[V]ictim had suffered a trauma. Her friend M.C.,
whom she trusted, told the [c]ourt that…[V]ictim was
different that morning, very quiet and hesitant. Dr. Baptiste
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testified that…[V]ictim appeared shameful, an entirely
credible emotion for an eleven-year-old to feel while trying
to process an adult touching her in that manner. Ms. Cox-
Cottman testified that…[V]ictim was calm up until the time
she saw her aunt, the person she feared telling the most,
where she broke down crying. …[V]ictim’s mental state at
the time of the disclosures was always consistent with
experiencing that kind of trauma as a child.
With regard to consistency and also age-appropriate
language, Appellant argued that the discrepancies
in…[V]ictim’s recollections to different authority figures
showed that the statements were not reliable. For instance,
the use of the word “rape” or “sex.” As Dr. Baptiste stated,
the use of the word by an eleven-year-old girl may not mean
the legal definition of the word rape. …[V]ictim knew that
the inappropriate touching by Appellant was wrong, that it
wasn’t supposed to happen, that it made her feel bad and
that it hurt. The argument that…[V]ictim did not use a more
“appropriate” term for the assault is erroneous. Rather, this
[c]ourt found the statements made by…[V]ictim to be even
more reliable because she was not using legal terminology.
Appellant also took issue with the inconsistency that the
assault happened “on the couch” as Ms. Cox-Cottman
reported or in the bedroom. Ms. Cox-Cottman was clear
that she wrote in her notes that she assumed it was a sofa
because…[V]ictim told her they were watching tv, so she
assumed a sofa in the living room. However, E.P. testified
that its very normal in her home to have people watching tv
in her bedroom. The minor inconsistencies were just that,
minor. …[V]ictim’s account of what happened, that they
were laying down together, that Appellant touched her
genital area inappropriately, that she wanted him to stop so
she asked to go to the bathroom, that Appellant followed
her into the bathroom and told her to turn around and bend
over while he rubbed his penis against her, never changed.
(Trial Court Opinion at 12-14). We agree with the trial court’s assessment.
Here, the trial court considered each of the factors in determining the
reliability of Victim’s statements to Dr. Baptiste, Ms. Cottman, and Ms.
Whiting, specifically highlighting how the statements revealed Victim’s mental
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state, use of terminology of a child of similar age, and lack of motive to lie.
See Delbridge, supra. Appellant’s attempts to point out minor
inconsistencies in the witnesses’ testimony regarding these statements were
not enough to undermine the statements’ overall reliability and consistency.
Thus, the trial court properly admitted testimony from Dr. Baptiste, Ms.
Cottman, and Ms. Whiting pursuant to the “Tender Years” hearsay exception.
See 42 Pa.C.S.A. § 5985.1; Lyons, supra.In his third issue, Appellant argues in his principal brief that the trial
court erred in denying his Rule 600 motion where more than 365 days elapsed
between the filing of the criminal complaint and his trial, and the
Commonwealth did not exercise due diligence in ensuring that the trial began
during the required period. Appellant contends that the Commonwealth’s lack
of due diligence led to it not being “trial ready” even up to the day of trial, as
that was the first time the Commonwealth revealed that Dr. Baptiste was
unavailable to testify due to having moved to Dubai.
While counsel for Appellant conceded at the Rule 600 hearing that part
of the delay could be attributed to his filing of a motion in limine, Appellant
avers that the delay caused by defense counsel’s motion was inconsequential
in comparison to the delay caused by the Commonwealth. Specifically,
Appellant points to the Commonwealth’s failure to call Ms. Cottman to testify
as a “Tender Years” witness until the other “Tender Years” witnesses
mentioned her name during the first hearing. Appellant asserts the
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Commonwealth should have been aware of the importance of Ms. Cottman’s
testimony as it relates to the sequence of events and should have anticipated
calling her as a witness. Appellant avers the Commonwealth’s failure to
investigate and include Ms. Cottman as a witness earlier in the proceedings,
and its filing of an amended petition to include her testimony as well as that
of another witness, represents a lack of due diligence on the Commonwealth’s
part.
Appellant expands upon his Rule 600 argument in his reply brief,
alleging the Commonwealth’s contention that only 35 days are attributable to
Commonwealth delay is incorrect. Rather, Appellant maintains the 161-day
period between the Commonwealth’s filing of its “Tender Years” motion on
December 20, 2018,6 and the court’s decision on that motion on May 30, 2019,
must also be included in the Rule 600 calculation. Appellant avers the
Commonwealth must be held responsible for this period of delay where (1)
the Commonwealth was the party that filed the motion, and (2) the
Commonwealth was not duly diligent in discovering, investigating, and
offering Ms. Cottman as a witness, leading to the postponement of the “Tender
Years” hearing from December 20, 2018, until April 18, 2019. Appellant
____________________________________________
6The record reflects that the Commonwealth filed its initial “Tender Years”
motion on December 4, 2018. Appellant, however, utilizes December 20,
2018 (the date of the first hearing on the motion), and the corresponding 161-
day period between December 20, 2018 and May 30, 2019, throughout the
analysis of his reply brief.
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further asserts that none of the 161 days is attributable to judicial delay
because “‘judicial delay’ cannot be considered until after the Commonwealth’s
diligence is assessed, and because the Commonwealth was not duly diligent
for the 161 days at issue, there was no ‘judicial delay’ in this case.”
(Appellant’s Reply Brief at 9).
Additionally, Appellant contends the 103 days from the May 30, 2019
decision on the “Tender Years” motion until trial began on September 10, 2019
“do not constitute judicial delay” and must be included in the Rule 600 analysis
as well. (Id. at 3). Appellant stresses that the trial court and the
Commonwealth do not argue that this time constitutes “excludable time” so it
should therefore be included in the Rule 600 calculation. Appellant further
argues that there was no evidence of a “congested docket,” or any other
reason given for why the case could not have been heard earlier. (Id. at 10).
Appellant concludes that since trial began 82 days past the run date of June
20, 2019, the court should have granted his Rule 600 motion, and this Court
should vacate the judgment of sentence. We disagree.7
In evaluating Rule 600 issues, our Supreme Court has stated:
____________________________________________
7 We caution Appellant that in some instances, the failure to adequately
address an issue in the principal brief could result in waiver of the claim on
appeal. See Commonwealth v. Carr, 227 A.3d 11 (Pa.Super. 2020) (stating
that it is not purpose of reply brief to remedy discussions of issues presented
poorly in appellant’s principal brief; declining to consider additional arguments
raised in appellant’s reply brief concerning his sufficiency of evidence claim).
Upon reconsideration of this appeal, however, we decline to find waiver of
Appellant’s Rule 600 claim and will address the issue on the merits.
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By the terms of Rule 600, the Commonwealth must bring a
defendant to trial within 365 days from the date upon which
a written criminal complaint is filed. Pa.R.Crim.P.
600(A)(2)(a). However, the Rule 600 run date may be
adjusted pursuant to the computational directives set forth
in Subsection (C) of the Rule. For purposes of the Rule 600
computation, “periods of delay at any stage of the
proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial
must commence.” [Pa.R.Crim.P.] 600(C)(1). “Any other
periods of delay,” including those caused by the defendant,
“shall be excluded from the computation.” Id.Commonwealth v. Barbour, 647 Pa. 394, 399, 189 A.3d 944, 947 (2018).
In other words, when analyzing whether a Rule 600 violation has occurred,
we exclude all periods of delay, except those attributable to the
Commonwealth where it has failed to act diligently, from the applicable date
to decide whether the defendant has been brought to trial within the Rule 600
time limitations. See id.Instantly, the Commonwealth filed the criminal complaint on June 20,
2018. Appellant filed his Rule 600 motion on July 19, 2019—only twenty-nine
days beyond the mechanical run date of June 20, 2019. The record shows
that Appellant requested a continuance from September 4, 2018 to September
11, 2018. Additionally, on November 30, 2018, Appellant filed a motion in
limine to exclude evidence of his prior crimen falsi convictions. The court
scheduled a hearing on Appellant’s motion for December 20, 2018. When the
delay caused by Appellant’s continuance request and the filing of his motion
in limine are deducted from the computation (even if we were to assume that
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the Commonwealth was responsible for all other delays), Appellant would not
have had a valid Rule 600 claim at the time he filed his motion. See
Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc),
appeal denied, 583 Pa. 659, 875 A.2d 1073 (2005) (stating that to obtain
relief, defendant must have valid Rule 600 claim at time he files his motion);
Commonwealth v. Claffey, 80 A.3d 780, 787 (Pa.Super. 2013), appeal
denied, 624 Pa. 680, 86 A.3d 231 (2014) (stating: “[A]ny passage of time
resulting from the filing of the Rule 600 motion itself (e.g., time required by
the court to schedule and conduct a hearing and/or time needed to take the
case under advisement before ruling) is not attributable to the
Commonwealth”). We need not proceed further to deduct any other periods
of delay to reject Appellant’s claim. See Barbour, supra. Accordingly, we
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2021
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