Com. v. Beckner, G.

J. A19032/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1703 MDA 2017
:
GEOFFREY ALAN BECKNER :
Appeal from the Order Entered October 26, 2017,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0001167-2017
BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 27, 2019
The Commonwealth appeals from the October 26, 2017 order granting
appellee’s motion to quash the criminal information and ordering that a new
preliminary hearing be conducted before a different magisterial district judge.
After careful review, we vacate the order and remand for further proceedings
consistent with this memorandum.
The relevant facts and procedural history of this case are as follows:
[Appellee] was arrested and charged with multiple
counts of sexual offenses[1] allegedly committed
against four male children of his former girlfriend
[M.]: M.M. age eight, T.M. age nine, B.M. age ten,
and A.C. age twelve. All four children were
interviewed about the allegations at the Children’s
Advocacy Center (“CAC”). The CAC interviews were
1Specifically, appellee was charged with aggravated indecent assault and four
counts each of indecent assault and corruption of minors. See 18 Pa.C.S.A.
§§ 3125(b), 3126(a)(7), and 6301(a)(1)(ii), respectively.
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conducted on August 1, 2016, and all four were
videotaped. The case was initially scheduled for a
preliminary hearing on October 25, 2016, but the
Commonwealth requested a continuance to
November 29, 2016, so that Tender Years and
Closed-Circuit Testimony Motions could be filed. Both
Motions were filed on October 27, 2016. Pursuant to
its Tender Years Motion, the Commonwealth seeks to
introduce the statements made by M.M., T.M., B.M.,
and A.C. to the forensic interviewer as substantive
evidence at both the preliminary hearing and at trial.
Pursuant to its Motion for Closed-Circuit Testimony,
the Commonwealth requests the Court to permit each
child’s testimony to be transmitted by
contemporaneous alternative method so that they do
not have to testify in the presence of [appellee].
An in camera hearing was held on February 6, 2017,
at which time the children gave testimony. Pursuant
to 42 Pa.C.S.[A.] § 5985.1,[2] the child victims were
2 42 Pa.C.S.A. § 5985.1 provides, in relevant part, as follows:
(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. . . . 31 (relating
to sexual offenses) . . . 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:
(i) testifies at the proceeding;
or
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questioned outside the presence of [appellee]. The
Commonwealth also called the following witnesses:
the boys’ mother, [M.], her partner, [S.L.], and
forensic interviewer, Becky Voss. At the conclusion of
the hearing, the Court asked both counsel to submit
briefs in support of their respective positions. The
Commonwealth filed its Brief in Support of its Motion
for Closed-Circuit Testimony and the Admission of
Statements Under the Tender Years Exception to the
Hearsay Rule on March 13, 2017. [Appellee] filed his
Brief in Opposition to the Commonwealth’s Tender
Years Motion and Motion for Closed Circuit Testimony
on March 13, 2017. On April 6, 2017, this Court
entered an Opinion and Order of Court granting both
of the Commonwealth’s Motions.
Opinion of the Honorable Carol L. Van Horn, 12/22/17 at 2-3.
On May 9, 2017, at the behest of appellee, Magisterial District Judge
Duane K. Cunningham (“MDJ Cunningham”) issued subpoenas for the children
to testify on appellee’s behalf at the preliminary hearing scheduled for June 1,
2017. The Commonwealth filed a motion to quash the subpoenas with the
Franklin County Court of Common Pleas the following day. Appellee, in turn,
filed an answer to the Commonwealth’s motion to quash on May 19, 2017.
On May 31, 2017, an evidentiary hearing on this matter was conducted before
Franklin County Court of Common Pleas Judge Van Horn, at the conclusion of
which this matter was remanded to MDJ Cunningham “to determine if any
condition should be placed upon his order for subpoena in light of
(ii) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a)(1), (2).
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[Judge Van Horn’s] opinion filed April 6, 2017.” (Order, 5/31/17 at ¶ 2.) A
preliminary hearing was held before MDJ Cunningham on June 1, 2017. At
said hearing, MDJ Cunningham ruled that appellee was precluded from calling
the children as witnesses and imposed the condition that the closed-circuit
video testimony would be admitted pursuant to Judge Van Horn’s April 6, 2017
order and opinion. All charges were bound over for trial.
On July 18, 2017, the Commonwealth filed a criminal information. On
August 18, 2017, appellee filed a “Motion to Quash and Motion for Temporary
Assignment of Issuing Authority.” Judge Van Horn held a hearing on
appellee’s motion on October 26, 2017. Following said hearing,
Judge Van Horn entered an order quashing the criminal information and
ordering that a new preliminary hearing be conducted before a different
magisterial district judge. (See order, 10/26/17 at ¶¶ 2-3.) The
Commonwealth filed a timely notice of appeal on November 1, 2017.3 On
November 7, 2017, Judge Van Horn ordered the Commonwealth to file a
concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b). The Commonwealth filed its timely Rule 1925(b)
statement on November 28, 2017, and Judge Van Horn filed a Rule 1925(a)
opinion on December 22, 2017.
3 The Commonwealth certified in its notice of appeal that, pursuant to
Pa.R.A.P. 311(d), the October 26, 2017 order will terminate or substantially
handicap the prosecution.
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On April 3, 2018, the Commonwealth filed a motion requesting
permission “to file a Corrected Brief to reflect the correct Jurisdictional
Statement/Appeal by Permission.” (See “Motion to File Corrected Brief,”
4/3/18 at 1.) The Commonwealth indicated that it “inadvertently inserted a[]
Statement of Jurisdiction from another County in another Commonwealth
appeal having to do with an appeal as of right regarding sentencing as
opposed to this appeal which is interlocutory and which may be taken with
permission.” (Id. at ¶ 2.) On April 6, 2018, this court issued a per curiam
order granting the Commonwealth’s motion. The Commonwealth filed its
amended brief that same day. Appellee, in turn, filed an amended brief on
April 24, 2018, arguing that:
The instant appeal must be quashed because (1) the
Commonwealth has waived the appeal taken as of
right under Rule 311(d) by asserting the appeal
should be granted by permission in all of its filings in
the Superior Court, (2) the Court has not granted
permission for the instant appeal, (3) the
Commonwealth has failed to follow any of the
procedures set forth in Rule 312 or Chapter 13, and
(4) the order appealed does not conform to the
requirements of 42 Pa.C.S.[A.] § 702(b) relative to
interlocutory orders appealable by permission.
Appellee’s amended brief at 10. On April 25, 2018, appellee filed a motion to
quash the Commonwealth’s appeal, which was deferred to the merits panel
on May 15, 2018.
The appealability of an order directly implicates the
jurisdiction of the court asked to review the order.
[T]his Court has the power to inquire at any time,
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sua sponte, whether an order is appealable.
Pennsylvania law makes clear:
[A]n appeal may be taken from: (1) a final
order or an order certified as a final order
(Pa.R.A.P. 341); (2) an interlocutory
order as of right (Pa.R.A.P. 311); (3) an
interlocutory order by permission
(Pa.R.A.P. 312, 1311, 42 Pa.C.S.A.
§ 702(b)); or (4) a collateral order
(Pa.R.A.P. 313).
Commonwealth v. Tchirkow, 160 A.3d 798, 803 (Pa.Super. 2017) (internal
quotation marks and case citations and omitted).
For the reasons that follow, we find that the October 26, 2017 order
meets the requirements for an interlocutory appeal as of right pursuant to
Pa.R.A.P. 311(d),4 because it will terminate or substantially handicap the
Commonwealth’s prosecution. We further note that although the
Commonwealth asserts in its amended brief that it is now “seeking permission
(pursuant to Pa.R.A.P. [] 312, Chapter 13) to file this interlocutory appeal[,]”
it continues to aver that the October 26, 2017 order will substantially handicap
4 Rule 311(d) provides as follows:
(d) Commonwealth appeals in criminal
cases.--In a criminal case, under the
circumstances provided by law, the
Commonwealth may take an appeal as of right
from an order that does not end the entire case
where the Commonwealth certifies in the notice
of appeal that the order will terminate or
substantially handicap the prosecution.
Pa.R.A.P. 311(d).
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its prosecution. (See Commonwealth’s amended brief at 4.). Accordingly,
we cannot agree with appellee that the Commonwealth waived its right to
“take an appeal as of right” pursuant to Rule 311(d). See Pa.R.A.P. 311(d).
Courts in this Commonwealth have long recognized that the Tender
Years Hearsay Act, 42 Pa.C.S.A. § 5985.1, governs the admission of hearsay
statements made by a child victim of sexual abuse. See Commonwealth v.
Walter, 93 A.3d 442, 451-452 (Pa. 2014). “The tender years exception
allows for the admission of a child’s out-of-court statement because of the
fragile nature of young victims of sexual abuse.” Commonwealth v.
Lukowich, 875 A.2d 1169, 1172 (Pa.Super. 2005), appeal denied, 885 A.2d
41 (Pa. 2005). A statement admitted under Section 5985.1 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).
In all circumstances, the trial court is required to first
assess the reliability of the proffered statement and
second, the availability of the child who made it. If
the child whose statement is offered will not be
presented as a witness, the court must determine
whether the child is “unavailable,” that is whether
testifying would cause serious emotional distress that
would substantially impair the child’s ability to
communicate reasonably before the court. Only if
both prongs are met will the evidence be deemed
admissible.
Fidler v. Cunningham-Small, 871 A.2d 231, 235 (Pa.Super. 2005)
(applying the Tender Years Hearsay Act exception in a civil proceeding).
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“Factors to consider when making the determination of reliability include, but
are not limited to, the spontaneity and consistent repetition of the
statement(s); the mental state of the declarant; and, the lack of motive to
fabricate.” Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa.Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005).
Here, Judge Van Horn explicitly found in her opinion in support of the
April 6, 2017 order that “the statements of all four children that were given to
the forensic interviewer during the August 1, 2016 interviews are relevant and
possess sufficient indicia of reliability.” (Opinion of Judge Van Horn, 4/6/17
at 30.) In reaching this conclusion, Judge Van Horn reasoned that requiring
the children to testify in appellee’s presence at the preliminary hearing would
cause them to suffer serious emotional distress and impair their ability to
effectively communicate. (Id. at 24, 26, 28, 30.) Thus, it logically follows
that the court’s October 26, 2017 order granting appellee a new preliminary
hearing in front of a different magisterial district judge, at which the children
could presumably be subpoenaed to testify in appellee’s presence, would
subject them to additional emotional distress and substantially handicap the
Commonwealth’s prosecution. Accordingly, we deny appellee’s motion to
quash this appeal.
We now turn to the merits of the Commonwealth’s argument. The
Commonwealth raises the following issue for our review:
Did [Judge Van Horn] commit an error of law in
granting [appellee’s] motion to quash information
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based solely on a purported error committed by the
magisterial district judge with regard to a ruling made
on [appellee’s] ability and/or right to subpoena the
victim(s) to testify at the preliminary hearing?
Commonwealth’s amended brief at 6.
Our standard of review in assessing whether a trial court erred in
quashing a criminal information is well settled.
The decision to grant a motion to quash a criminal
information or indictment is within the sound
discretion of the trial judge and will be reversed on
appeal only where there has been a clear abuse of
discretion. Discretion is abused when the course
pursued by the trial court 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. Wyland, 987 A.2d 802, 804-805 (Pa.Super. 2010)
(citations and quotation marks omitted), appeal denied, 8 A.3d 346 (Pa.
2010).
In the instant matter, Judge Van Horn found that “[it] is persuaded that
[appellee] is permitted to call the children to testify on his behalf at the
preliminary hearing” and that the Commonwealth’s argument to the contrary
is meritless. (Opinion of Judge Van Horn, 12/22/17 at 8.) In reaching this
conclusion, Judge Van Horn relied primarily on Pa.R.Crim.P. 542(C)(3)5 and
5 Rule 542(C)(3) provides that, “[t]he defendant shall be present at any
preliminary hearing except as provided in these rules, and may . . . call
witnesses on the defendant’s behalf, other than witnesses to the defendant’s
good reputation only[.]” Pa.R.Crim.P. 542(C)(3).
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our supreme court’s decision in Commonwealth v. Mullen, 333 A.2d 755(Pa. 1975). At the October 26, 2017 hearing, Judge Van Horn set forth the
following rationale in support of her decision to quash the criminal information
and order that a new preliminary hearing be conducted before a different
magisterial district judge:
[T]his isn’t a case where I believe [appellee’s] request
to call the witnesses at a preliminary hearing is an
attempt to gain an advantage or to get discovery or
to find out what the Commonwealth’s case is because
we’ve already heard through the prior hearing what
the witnesses have said. The hearing to the
Commonwealth on the Commonwealth’s motion to
have the victim[s] testify by closed circuit. We heard
each of the victims, so this is not a fishing expedition
on the part of [appellee] to try to find out what are
these alleged victims going to say or how they could
be challenged. We’ve already gone through that, so I
believe that Mullen is good and that
[Pa.R.Crim.P.] 542([C])(3) does permit [appellee] to
call witnesses on his behalf and the proposed
witnesses are not ones to testify to his good
reputation so they are not prohibited by the rule.
Opinion of Judge Van Horn, 12/22/17 at 8-9, quoting notes of testimony,
10/26/17 at 6-7 (emphasis added).
While it may be true that appellee has a rule-based right to call
witnesses at a preliminary hearing, see Commonwealth v. Ricker, 120 A.3d
349 (Pa.Super. 2015), appeal dismissed as improvidently granted, 170
A.3d 494 (Pa. 2017), it is also true that the findings of the trial court as to the
Tender Years issue apply with equal force to the preliminary hearing. Upon
review, we find that Mullen is distinguishable from the instant matter and
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that Judge Van Horn’s reliance on it is misplaced. Mullen involved a
defendant who was denied the right to call prospective Commonwealth
witnesses, including “the police officer who was the prosecutor,” at a
preliminary hearing. Mullen, 333 A.2d at 756. The Court of Common Pleas
of Montgomery County disagreed with the district justice’s decision and
remanded for a preliminary hearing de novo with the defendant having “the
right to call any witnesses in his behalf excepting only witnesses to his good
reputation.” Id. at 756-757. The Commonwealth subsequently appealed. In
ruling that the defendant was not limited to calling only those witnesses at his
preliminary hearing who would offer testimony favorable to his defense, the
Mullen court held that “the defendant has the right to contest the existence
of a prima facie case and may not be denied the opportunity of presenting
evidence which, in his view, negates its existence.” Id. at 757.6
Unlike in Mullen, where the defendant was charged with criminal
homicide and aggravated assault and the prospective witnesses were
6 Additionally, we note that the comment to Rule 542 indicates that:
Paragraph (C)(3) is intended to make clear that the
defendant may call witnesses at a preliminary hearing
only to negate the existence of a prima facie case,
and not merely for the purpose of discovering the
Commonwealth’s case. The modification changes the
language of the rule interpreted by the Court in
[Mullen]. This amendment was made to preserve the
limited function of a preliminary hearing.
Pa.R.Crim.P. 542 Comment.
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eyewitnesses to these crimes, this matter concerns the testimony of child
victims of sexual abuse and the Tender Years Hearsay Act, whose purpose is
to protect the emotional well-being of said witnesses. We decline to find that
Mullen entitles appellee to present an unrestrained defense at a preliminary
hearing involving such witnesses. The principal function of a preliminary
hearing “is to protect the right against unlawful arrest and detention.”
Commonwealth v. Ricker, 170 A.3d 494, 497 (Pa. 2017). At this hearing
the Commonwealth bears the burden of establishing a prima facie case that
a crime has been committed and that the accused is the one who committed
it. See Commonwealth v. Patrick, 933 A.2d 1043, 1045 (Pa.Super. 2007),
appeal denied, 940 A.2d 364 (Pa. 2007). “Although a preliminary hearing
may permit capable defense counsel to lay the groundwork for a trial defense,
its intended purpose is not primarily to provide defense counsel with
the opportunity to assess the credibility of Commonwealth witnesses
. . . or to design avenues for the impeachment of witnesses at trial.”
Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013) (emphasis
added).
Here, MDJ Cunningham was well within his discretion to protect the
emotional well-being of the children by limiting the preliminary hearing to
include only that evidence relevant to a prima facie showing, pursuant to
Judge Van Horn’s April 6, 2017 order and opinion. Any further testing of this
testimony must await a full trial. Judge Van Horn’s disregard of her prior
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holding in electing to quash the criminal information and order that a new
preliminary hearing be conducted before a different magisterial district judge
contravened the purposes of the Tender Years Hearsay Act and constituted an
abuse of its discretion. Accordingly, we vacate the October 26, 2017 order
and remand this case for further proceedings consistent with this
memorandum.
Order vacated. Motion to quash appeal denied. Case remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/27/2019
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