In the Interest of: S.S., a Minor, Appeal of: S.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF S.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.S
No. 832 WDA 2015
Appeal from the Dispositional Order Dated April 22, 2015
In the Court of Common Pleas of Allegheny County
Juvenile Division at No: CP-02-JV-0001954-2014; JID No. 92387-A;
Case No. T-180189; and Docket Number 1639-14
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 13, 2016
Appellant S.S. appeals from the April 22, 2015, dispositional order of
the Court of Common Pleas of Allegheny County (“juvenile court”),1 which
adjudicated him delinquent of two counts of rape under Section 3121(c) of
the Crimes Code (Code), 18 Pa.C.S. § 3121(c), for sexually abusing his then
eight to nine year old female cousin, A.S.H. (“victim”). Upon review, we
affirm.
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*
Former Justice specially assigned to the Superior Court.
1
Appellant misses that “the appealable order is not the adjudication of
delinquency (the equivalent of a finding of guilt in criminal matters), but
rather is the dispositional order (the equivalent of the judgment of sentence
in criminal matters).” In re J.D., 798 A.2d 210, 211 n.1 (Pa. Super. 2002).
We have corrected the caption accordingly.
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Appellant was adjudicated delinquent of the foregoing offenses based
on the following uncontradicted facts, as summarized by the juvenile court:
Since the time of her birth until she was about nine years
old, [victim] resided primarily with her mother, K.S. [Victim]
would regularly spend the weekends with her father, E.H. In
June of 2014, the victim’s paternal grandmother was residing
with the victim’s father. The same month, the victim’s paternal
grandmother, J.W.K., received a phone call from her mother, the
victim’s great-grandmother. The great-grandmother was calling
J.W.K. to tell her of an incident between the victim . . . and the
victim’s younger, then four-year-old cousin L. Counsin L. told
great-grandmother that [the victim] had placed a crayon in
counsin L’s rectum. Forensic Specialist Jennifer Ginsburg would
later characterize this behavior as “sexually acting out.” [The
victim] had allegedly threatened cousin L. not to tell or else she
was going to “F [cousin L.] up. Shortly thereafter, when [the
victim] was in custody of her father’s side of the family, J.W.K.
decided to privately confront [the victim] without [the victim’s]
father being present. She asked [the victim] about what
happened with cousin L., and [the victim] immediately confessed
to the crayon incident. J.W.K. described [the victim’s]
disposition as ashamed with her head down. J.W.K. then asked
why she did something like this; [the victim] replied that
someone did it to her first. When J.W.K. asked her what
specifically, she said that she and her cousin [Appellant] “had
been touching.” Again, she asked what happened, and [the
victim] said, [Appellant] put his thing in her butt.” [The victim]
also told paternal grandmother that she had previously told both
her mother and maternal grandmother.
J.W.K. then privately relayed the conversation to her son
E.H., [the victim’s father. E.H. asked [the victim] “what
happened.” Then E.H. asked “did something happen?” E.H. said
that was when [the victim] just “shut down,” but not before
telling [E.H.] that [Appellant] had “laid on top of her and pulled
his pants down.” Around the same time, J.W.K. called A.W., the
father’s then-girlfriend (now fiancée), and told her to come over
to the house. When A.W. arrived, J.W.K. “kind of told A.W. what
was going on.” A.W. arrived when the victim was speaking
alone with her father[, E.H.].
After their talk, her father and A.W. then took [the victim]
to the police station. A.W. testified that the first police station
they went to was in the wrong zone, which is irrelevant except to
set the scene where, upon arriving at the second police station,
[E.H.] went into the building first to make sure they were in the
right place. At this point, [the victim] and A.W. were alone;
prior to this moment, the two had not spoken. A.W. testified
that the [victim] “looked traumatized.”
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A.W. asked [the victim] what happened, assuring her that
she did not want to hurt [the victim], but rather wanted to
protect her. [The victim] told A.W.: “[Appellant] put his stuff in
my butt.” A.W. asked what she meant by “stuff.” The [victim]
replied that she meant his “private part.” A.W. asked who else
[the victim] told; [the victim] said she told her mother, her
maternal grandmother and her aunt C.S. ([Appellant’s] mother).
When A.W. asked the [victim] what the adults said after she told
them what happened, [the victim] said that they assured her it
would not happened again. A.W. testified that she assured her it
would stop and “let it alone,” because she did not want to keep
questioning [the victim].”
The police directed the victim’s father and A.W. to take the
[victim] to the Emergency Room at Children’s Hospital, where
[the victim] was examined by Dr. Raymond Pitetti. Dr. Pitetti
testified that he speaks with his patients about what occurred to
necessitate the trip to the hospital. This way, he knows what to
look for in his physical examination. He was also briefed on the
situation by the family prior to talking with [the victim]. Dr.
Pitetti did not remember exactly who was in the room during the
examination, but he testified that he thought it was at least one
other doctor, A.W., and J.W.K. The defense asked Dr. Pitetti
whether he led the [victim] when he questioned her. Dr. Pitetti
testified:
“I don’t remember my exact words to her, but typically, I
would not ask in that fashion. I would try not to put a
thought in mind or words in her mind. So, I would try to
ask her, can you tell me what happened. So, I would try
not to use the words that the stepmom or the
grandmother might have used.”
When Dr. Pitetti asked [the victim] for himself what
happened, the [victim] testified that [Appellant] “put his stuff in
my butt.” Dr. Pitetti testified that he did not recall the [victim’s]
demeanor or how she was acting. Dr. Pitetti testified that the
result of the examination showed no signs of force, bleeding,
bruising or trauma. He elaborated that that would not rule out
sexual abuse, because physical manifestations depend on the
size of the people and the force involved. Dr. Pitetti testified
that there was “a time” between the sexual abuse and the
medical examination. Dr. Pitetti testified that the [victim]
denied anal bleeding or trouble with her bowels or urination.
The hospital involved its social worker; a Child Line was filed.
Later that week, [the victim] met with Jennifer Ginsburg, a
forensic specialist at the Child Advocacy Center. Jennifer
Ginsburg testified that when she interviewed the [victim, the
victim] appeared a little quiet and nervous but coherent.
Notably, Jennifer Ginsburg testified that her discussion with [the
victim] was a “non-leading” interview, meaning that she
“wouldn’t ask anything directly unless [the victim] brings it up.”
Jennifer Ginsburg asked the [victim] why her father and A.W.
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brought her to the Child Advocacy Center to meet with her.
[The victim] told Jennifer Ginsburg that it was “because of
something [Appellant] did.” Jennifer Ginsburg then asked what
[Appellant] did, to which [the victim] replied: “stuck his stuff in
my butt.” Jennifer Ginsburg testified that the [victim] further
indicated that the incident happened more than once and at
home of her maternal grandmother. At that point she “shut
down,” by putting her head on the table, covering her face with
her arm, and whispering her answers. Prior to that moment,
however, Jennifer Ginsburg testified that [the victim] was
spontaneous with her answers. [The victim] became more
hesitant, but she still described the incidents. Jennifer Ginsburg
still characterized her as “alert.”
Jennifer Ginsburg testified that [the victim] said that
[Appellant] laid on top of her. [The victim] told Jennifer
Ginsburg that one of the times she could see [Appellant’s]
hands. The [victim] did not specify to Jennifer Ginsburg the
number of times she was abused, but did say, that the first time
was when she was in first grade and the last time was when she
was in second. Jennifer Ginsburg said that [the victim] did not
know whether to describe [Appellant’s] “stuff” as soft or hard or
something else. She did not use the word “penis,” but Jennifer
Ginsburg said that [the victim] said that his “stuff” “was used to
stick inside people.” Jennifer Ginsburg testified that when she
conducts such interviews, one of the things that will give her an
“alert” is when a [victim] uses a term that is mature for her age.
She testified that that did not really happen here, that [the
victim’s] terminology was age appropriate.
At trial, [the victim] took the stand. She was asked on
direct examination why she thought she was here. Similar to
her interview with Jennifer Ginsburg, she testified that she
thought she was here “because of [Appellant]. When asked why
“because of [Appellant], [the victim] testified “because he put
his private part in my butt.” She testified that this took place in
her maternal grandmother’s home. She stated that [Appellant]
did this four times. In one instance, the [victim] was on the
couch when [Appellant] pushed her on her stomach and put “his
private part in my butt.” The [victim] said that she had been
clothed, but that she felt [Appellant’s] “private part.” She said
that it hurt and that she was scared. When asked how she knew
it was his penis that went into her anus, she testified that she
felt it; while she could see his hands. In another instance, the
[victim] testified that she was watching TV in her maternal
grandmother’s room when [Appellant] came into the room,
pushed her down and “put his private part in my butt.” The
incident stopped when [the victim’s] mother arrived at the
home, and [Appellant] left the room.
For her part, K.S., the victim’s mother, testified that [the
victim] had told her that [Appellant] had “touched” her two or
three years prior to the police’s involvement. K.S. did not tell
anyone or do anything other than tell [the victim] not be alone
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with [Appellant] anymore. Her mother did not prevent the
victim from being in her maternal grandmother’s home, where
the victim was often babysat and where [Appellant] was often
present. K.S. said her daughter described this “touching” as
what appeared to be grinding motion, where [Appellant] moved
[the victim] back and forth while she sat on his lap. After K.S.
told the victim not to be alone with [Appellant], there was
another incident where the two were together. [K.S.] went to
maternal grandmother’s house to pick up [the victim] and take
her to a dentist appointment. When K.S. arrived, she called out
but evidently no one was home. When she began to walk up the
stairs, she saw [Appellant] walk out of the bedroom. She asked
where [the victim] was and [Appellant] pointed to the bedroom
from which he had just left. When she asked [the victim] why
she was alone in the room with [Appellant], a violation of her
rule, the [victim] said, “he touched my butt.” After that
incident, she testified that she did not let [the victim] go back to
her maternal grandmother’s house without her.
Mother testified that she was not sure her daughter told
her that [Appellant] anally penetrated her. Mother testified that
[the victim] said that [Appellant] was on top and moved back
and forth. She also testified that she did not know whether all of
[the victim’s] clothes were off.
Trial Court Opinion, 9/14/15, at 1-7 (record citations omitted).
On appeal, Appellant raises a single issue for our review:
Did the hearsay statement made by a child victim to family
members, a caseworker, and a doctor have sufficient indicia of
reliability to be properly admitted?
Appellant’s Brief at 5. In essence, Appellant argues that the trial court
abused its discretion in admitting the victim’s statement to family members,
Dr. Pitetti, and Jennifer Ginsburg under the Tender Years Exception to the
hearsay rule. Id. at 17-24. In support of his argument, Appellant points
out that the victim’s statement that Appellant put his private part in her
rectum lacked sufficient indicia of reliability. Id. at 17.
Our standard of review of dispositional orders is well-settled: “The
Juvenile Act grants broad discretion to the court when determining an
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appropriate disposition. We will not disturb a disposition absent a manifest
abuse of discretion.” In the Interest of R.D., 44 A.3d 657, 664 (Pa.
Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012) (quoting In the
Interest of R.D.R., 876 A.2d 1009, 1013 (Pa. Super. 2005)). An abuse of
discretion “requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.”
Commonwealth v. Rodriguez, 81 A.3d 103, 106 (Pa. Super. 2013)
(quotation omitted), appeal denied, 91 A.3d 1238 (Pa. 2014).
“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Pa.R.E. 801(c). “The Tender Years Exception allows for
the admission of a child’s out-of-court statement due the fragile nature of
young victims of sexual abuse.” Commonwealth v. Kriner, 915 A.2d 653,
657 (Pa. Super. 2007) (citation omitted). The Tender Years Exception to the
hearsay rule provides in relevant part:
§ 5985.1. Admissibility of certain statements
(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
homicide), 27 (relating to assault), 29 (relating to kidnapping),
31 (relating to sexual offenses), 35 (relating to burglary and
other criminal intrusion) and 37 (relating to robbery), not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient indicia of
reliability; and
(2) the child either:
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(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a). Any statement admitted under the Tender Years
Statute “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) (citation omitted); accord
Commonwealth v. Lyons, 833 A.2d 245, 254 (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.”
Lyons, 833 A.2d at 255 (citation omitted), appeal denied, 879 A.2d 782(Pa. 2005). Factors a court may consider when determining the reliability
“include the spontaneity of the statements, consistency in repetition, the
mental state of the declarant, use of terms unexpected in children of that
age and the lack of a motive to fabricate.” Commonwealth v. Delbridge,
855 A.2d 27, 47 (Pa. 2003); see Lyons, supra.Instantly, Appellant argues simply that the victim’s statement to her
family members, Dr. Pitetti and Jennifer Ginsburg that Appellant “put his
penis in her rectum” lacked sufficient indicia of reliability because the victim
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had a reason to fabricate the abuse committed by Appellant.2,3 Appellant’s
Brief at 17. Specifically, Appellant claims:
[The victim] had significant motivations to fabricate and blame
other person for assaulting her since she was being accused of
assaulting a child. Multiple members of her family focused on
her and her actions of anally penetrating her younger cousin
with a crayon. By blaming [Appellant] of anally penetrating her,
[the victim] deflected the focus from her assaultive behavior.
Rather, the focus became her status as a victim.
....
Understandably, her family immediately tried to protect her and
assist her, rather than focusing negative attention on her or
reprimanding her for victimizing her cousin.
Appellant’s Brief at 18-19.
Based on our review of the record, as set forth above, we must
disagree. The trial court did not abuse its discretion in allowing the victim’s
out-of-court statement made to family members, Dr. Pitetti and Jennifer
Ginsburg under the Tender Years Exception to the hearsay rule, because it
possessed sufficient indicia of reliability. As the trial court noted, the
victim’s statement that Appellant put his private part in her rectum was not
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2
As the Commonwealth points out and Appellant’s Brief confirms, Appellant
does not allege that the victim’s statements lacked spontaneity, were not
consistent in their repetition, or did not consist of terms unexpected in
children of that age. Appellant’s Brief at 21, 24. Moreover, Appellant does
not challenge the victim’s mental state. Id. at 21.
3
Insofar as Appellant relies on Commonwealth v. Barnett, 50 A.3d 176(Pa. Super. 2013), appeal denied, 63 A.3d 772 (Pa. 2013), we reject such
reliance as inapposite. This case compels an outcome similar to the one
reached in Barnett, where we concluded that the trial court did not abuse
its discretion in allowing certain out-of-court statements under the Tender
Years Exception. Barnett, 50 A.3d at 188.
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fabricated and she did not utter it to get herself out of trouble. Trial Court
Opinion, 9/14/15, at 15. Moreover, we agree with the trail court that
Appellant’s challenge to the fabrication factor does not outweigh or
undermine the ample indicia of reliability created in this case, particularly
through the spontaneity of the victim’s statements and their consistent
repetition in various settings. Id. at 16-17. Thus, like the trial court, we
observe that Appellant’s appeal appears to be anchored in a “vague common
belief that sometimes kids lie to get out of a reprimand.” Id. at 16.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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