Com. v. MacNeal, R.

J-S61007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
RONALD MACNEAL, SR.,
Appellant No. 3523 EDA 2017
Appeal from the Judgment of Sentence Entered September 26, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001182-2016
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 20, 2018
Appellant, Ronald MacNeal, Sr., appeals from the judgment of sentence
of 5 to 10 years’ imprisonment, followed by 5 years’ probation, imposed after
a jury convicted him of involuntary deviate sexual intercourse with a child
(IDSI), 18 Pa.C.S. § 3123(b), aggravated indecent assault of a child, 18
Pa.C.S. § 3125(b), and corruption of minors, 18 Pa.C.S. § 6301. Herein,
Appellant challenges the admission of out-of-court statements by the child
victim pursuant to 42 Pa.C.S. § 5985.1, commonly referred to as the Tender
Years Hearsay Act (TYHA), as well as the sufficiency of the evidence to sustain
his convictions. After careful review, we affirm.
The trial court set forth a detailed summary of the evidence presented
at Appellant’s trial, as follows:
[N.W.], the victim, was five years old at the time of the incident.
She testified by closed circuit television. [N.W.] stated she
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remembers going over [to Appellant’s] house and he touched her.
After making that statement, [N.W.] put her head down and did
not respond verbally to any further questions. The defense had
the opportunity[,] but chose not to cross[-]examine.
Megan Cronmiller is [N.W.]’s mother. On August 7, 2015[,]
they were at [Appellant’s] house for a barbecue. Ms. Cronmiller
became tired and wanted to go home. [Appellant] asked if [N.W.]
could stay over at his house that night. Ms. Cronmiller agreed
because, at that time, she had a good relationship with
[Appellant]. Ms. Cronmiller picked [N.W.] up the next morning at
[Appellant’s] house. Ms. Cronmiller thought it was unusual that
[N.W.] was quiet and wanted to go home. As they were walking
home, [N.W.] was unusually quiet and did[] [not] want to be
touched. Ms. Cronmiller tried to hold [N.W.]’s hand to cross the
street but she pulled away from her. When they got home, [N.W.]
wet her pants, which was also unusual. Two hours later, [N.W.]
wet her pants again. This abnormal behavior continued for a few
more days. Ms. Cronmiller sensed there was something wrong
and confronted [N.W.] about why she kept wetting her pants.
[N.W.] put her head down and said [Appellant] touched her. Ms.
Cronmiller then called 911 to report suspected child sexual abuse.
Sergeant James Cadden, is employed by the Borough of East
Lansdowne Police Department with the rank of Sergeant and the
position of Detective. He conducts criminal investigations that are
beyond the scope of patrol division. On August 13[], 2015, around
noon he received a radio call from the 911 center to respond to
810 Pembroke Avenue for a report of a child in distress. After
interviewing Ms. Cronmiller, Sergeant Cadden interviewed [N.W.]
alone. Initially[,] Sergeant Cadden had a conversation with
[N.W.] to determine if she knew the difference between a truth
and a lie, as well as reality versus make believe. Sergeant Cadden
then asked [N.W.] what had happened. [N.W.] told Sergeant
Cadden that she slept at [Appellant’s] house and he touched her
in her private parts and she pointed down below to her groin area.
Sergeant Cadden attempted to get more detail. [N.W.] described
watching a movie, eating popcorn and then said [Appellant] put a
finger into her private parts, and again pointed to the groin area.
[N.W.] then began to cry and Sergeant Cadden stopped the
interview. Sergeant Cadden’s next step was to secure [N.W.]’s
wellbeing. He called for an ambulance and arranged for [N.W.] to
be transported to Children’s Hospital in Philadelphia. He also
contacted the District Attorney’s Criminal Investigation Division
(CID) and Children and Youth Services of Delaware County (CYS).
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He further arranged for a CYS representative to meet [N.W.] at
the hospital. On August 14, [2015,] the day after receiving the
complaint, Sergeant Cadden and Detective Bucci of the CID went
to 401 Pembroke Avenue, [Appellant’s] residence[,] to interview
him. Present at the time of the visit were [Appellant] and the
owner of the property, Mr. Thomas Antonelli. Detective Bucci
interviewed [Appellant] while Sergeant Cadden interviewed Mr.
Antonelli. Mr. Antonelli confirmed [N.W.] slept there on the night
of the incident but was hesitant to answer further questions.
Later, after [Appellant] had been removed from his residence, Mr.
Antonelli contacted Sergeant Cadden and stated that he was
afraid to say anything while [Appellant] was in his residence or
near him. Mr. Antonelli told Sergeant Cadden he wanted to
describe the night of the incident. He stated that early in the
morning around 3:00 [or] 3:30 a.m. he was woken up by sounds
of [N.W.] crying out in pain[,] or what Mr. Antonelli determined
was pain. Mr. Antonelli stated he attempted to get to the top of
the steps but could not due to the condition of his health. He lives
on the ground floor and could not climb the steps.
Judy Kaplan is the Director and Lead Forensic Interviewer with
the Family Support Line. She works for the Delaware County
Children’s Advocacy Center, which is a program of Family Support
Line. The Delaware County Children’s Advocacy Center is located
at 100 West 6th Street in Media. Part of Ms. Kaplan’s role as the
Director of the Delaware County Children’s Advocacy Center is to
conduct forensic interviews of children when there are allegations
of sexual abuse. The forensic interview is digitally recorded and
a DVD is burned immediately after the forensic interview and
given to law enforcement and CYS. Ms. Kaplan conducted a
forensic interview with [N.W.] on August 14, 2015. The video
recording of the interview was admitted into evidence and
published to the jury in its entirety. In the recording, [N.W.]
makes the following statements…. [N.W.] went to the doctor to
get her private part checked because [Appellant] stuck his finger
in her private part. [Appellant] went to sleep and when he woke
up he got in bed with her and put his finger in her private part.
When [Appellant] put his finger in her she felt like her private part
was bleeding. [Appellant] also put his finger in her butt hole and
it made [N.W.] feel like she was pooping. [Appellant] put his
mouth on her private part. It felt like he was licking it. He also
put his tongue in her “pee-pee.” During this encounter[,]
[Appellant] did not have his clothes on. [Appellant] put his “pee-
pee” in her mouth and something came out in her mouth.
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[Appellant] told [N.W.] if she told anyone what happened he
would punch her in the face. [Appellant] fell asleep and [N.W.]
kicked him repeatedly in his private part “[s]o he’d be dead.”
Detective Mark Bucci has been employed by the Delaware
County Criminal Investigation Division. He has investigated child
abuse and child sexual exploitation for 24 to 27 years. He took a
recorded statement from [Appellant] on August 14, 2015. The
statement was admitted into evidence and published to the jury.
During the statement, [Appellant] denied the allegations but
stated he was playing “poke the butt” with [N.W.] and her brother.
He described poke the butt as a game where he would jokingly
poke them on their butts with his finger and the children would
laugh. [Appellant] admitted that one time [N.W.] was wiggling
her butt as they played the game and he accidently touched her
vagina. [Appellant] stated that at one point during the sleep over
[N.W.] was in bed with him. [Appellant] also stated [N.W.] stayed
over his house four times and each time he would give her a
bubble bath and dry her off without touching her.
Mr. Thomas Antonelli is the owner of the property where
[Appellant] resided at the time of the incident. He was the final
Commonwealth witness. Mr. Antonelli takes medication to sleep
but it does[ not] always work. A lot of times[,] Mr. Antonelli has
trouble sleeping and spends the night laying [sic] in bed half
asleep. On the night of the incident, between 10 p.m. and
midnight, Mr. Antonelli heard what he described as an “ungodly
cry out.” Due to his physical condition[,] Mr. Antonelli sleeps in
his living room on the couch. Upon hearing the cry out[,] Mr.
Antonelli attempted to go up the steps and screamed something
because he wanted to know what happened. [Appellant]
answered that he would be down in a little bit. About five to fifteen
minutes later[,] [Appellant] and [N.W.] came downstairs.
[Appellant] stated [N.W.] had an upset stomach and he was going
to make her popcorn. Mr. Antonelli was concerned because
[N.W.] was afraid to look at him. He testified [N.W.] had never
been afraid to look at him. Also, Mr. Antonelli noticed a change in
[N.W.’s] emotional state. She was usually very happy. She was
not happy when she came downstairs. Mr. Antonelli stated[,]
“From the time that they went in the kitchen to make the popcorn
to the time when they went back upstairs, it was just sustained
silence. It was like this eerie silence, like something had happened
but it wasn’t being said out loud.” Mr. Antonelli recalled that at
some point[,] [N.W.] started to say something and [Appellant] put
his finger to his mouth gesturing for [N.W.] to be quiet. Mr.
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Antonelli further testified [that,] in the beginning[,] [N.W.’s]
mother and brother would stay over. Then it did[] [not] take long
to become just the children and then just [Appellant] and the little
girl.
[Appellant] did not testify. Instead[,] he presented an expert
witness who was qualified as an expert in pediatric medicine. Dr.
Jeffrey Bomze opined that[,] within a reasonable degree of
medical certainty[,] the history he reviewed did not support the
medical findings contained in the … [h]ospital records. He based
that opinion on the size of [Appellant’s] fingers, the small area of
a five year old[’s] vagina and the report of [Appellant’s] moving
the finger in the vagina without a lubricant. Dr. Bomze testified
that based on that history there should be bleeding and evidence
of trauma to the vagina. He also testified he thought it was
significant there was no blood in the urine. Dr. Bomze stated the
lack of these findings supported his conclusion.
Trial Court Opinion (TCO), 2/8/18, at 1-8 (citations to the record and footnotes
omitted).
Based on this evidence, the jury convicted Appellant of the offenses
stated supra. On September 26, 2017, the court sentenced Appellant to 5 to
10 years’ imprisonment, followed by 5 years’ probation. He filed a timely
notice of appeal, and he also timely complied with the trial court’s order to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Herein, Appellant presents two issues for our review:
I. Whether the [t]rial [c]ourt erred in granting the
Commonwealth’s request and permitting hearsay testimony
pursuant to the [TYHA], 42 [Pa.C.S. §] 5985.1[?]
II. Whether the evidence submitted by the Commonwealth was
insufficient as a matter of law to prove the charges of
[IDSI], [a]ggravated [i]ndecent [a]ssault and [c]orrupting
the [m]orals of [a minor?]
Appellant’s Brief at 6.
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Appellant first contends that the trial court erred by admitting, pursuant
to the TYHA, out-of-court statements that N.W. made to her mother and
Sergeant Cadden, as well as the forensic interview of N.W. that was conducted
by Ms. Kaplan. According to Appellant, N.W. was unavailable for cross-
examination at trial, and her out-of-court statements were testimonial in
nature, thereby making their admission at trial a violation of his constitutional
right to confront witnesses against him.
This Court has explained that,
[u]nder the TYHA, certain out-of-court statements made by a child
victim or witness may be admissible at trial if the child either
testifies at the proceeding or is unavailable as a witness, and the
court finds “that the evidence is relevant and that the time,
content and circumstances of the statement provide sufficient
indicia of reliability.” 42 Pa.C.S.[] § 5985.1(a)(1). However, as
discussed infra, with regard to testimonial hearsay, United States
Supreme Court case law has rejected the indicia of reliability
standard as violative of the Sixth Amendment to the United States
Constitution.
The Sixth Amendment to the United States Constitution,
otherwise known as the Confrontation Clause, guarantees that
“[i]n all criminal prosecutions, the accused shall enjoy the right ...
to be confronted with the witnesses against him.” U.S. Const.
amend. VI. Previously, in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.
2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court
held that the Confrontation Clause did not bar admission of an
unavailable witness’s statement against a criminal defendant,
provided the statement was surrounded by “adequate indicia of
reliability.” Id. at 66, 100 S.Ct. 2531. According to the Roberts
Court, such indicia exists when the testimony being considered
either fits within a “firmly rooted hearsay exception,” or contains
“particularized guarantees of trustworthiness.” Id.Subsequently, in Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States
Supreme Court overruled Roberts in part. Specifically, the
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Supreme Court rejected the “indicia of reliability standard” where
a witness is deemed unavailable. Instead, the Supreme Court held
that the admissibility of out-of-court statements by an unavailable
witness turns upon a determination of whether the statements are
testimonial or nontestimonial in nature:
Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers’ design to afford the States
flexibility in their development of hearsay law—as does
Roberts, and as would an approach that exempted such
statements from Confrontation Clause scrutiny altogether.
Where testimonial evidence is at issue, however, the
Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for
cross-examination.
Id. at 68, 124 S.Ct. 1354 (emphasis added).
In re N.C., 74 A.3d 271, 274–75 (Pa. Super. 2013), aff'd, 105 A.3d 1199 (Pa.
2014).
We begin by addressing Appellant’s argument that N.W. was unavailable
for cross-examination at trial. Appellant acknowledges that N.W. was called
to the stand by the Commonwealth; however, he contends that, during the
direct examination, N.W.
was unresponsive to the prosecutor’s questions, and the only
response that was at all relevant was that she testified that “he
touched me[.”] (N.T. [Trial,] 5/31/17[, at] 57)[.] She provided
no other details and answered no further questions, and the
Commonwealth stopped [the] direct[-]examination. ([Id. at] 57-
59). Based upon her refusal to respond further to the
Commonwealth’s attorney, defense counsel did not cross[-]
examine N.W.
Thereafter, counsel engaged in an argument as to whether or not
[N.W.] “testified” for purposes of the TYHA. There was no finding
of unavailability by the [c]ourt[,] nor was there any attempt by
the Commonwealth to establish unavailability under the Act. The
[c]ourt appears to have concluded that N.W. did testify, and then
permitted the Commonwealth to introduce the video[-]taped
interview of N.W., her mother’s testimony that included [N.W.’s]
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hearsay statements, and additional hearsay statements
introduced by [Sergeant] Cadden. ([Id. at] 100-15, 149-64).
Appellant’s Brief at 9-10.
According to Appellant, the facts of this case mirror those in In re N.C.,
where this Court deemed the child witness unavailable for cross-examination,
and our Supreme Court affirmed that decision on appeal. After careful review
of both this Court’s opinion in In re N.C., and our Supreme Court’s decision
affirming, we disagree with Appellant’s argument. As this Court explained In
re N.C., the victim, A.D.,
was four years old at the time of the adjudicatory hearing. In the
portion of the hearing on A.D.’s competence to testify, the record
reflects that defense counsel was able to elicit non-verbal and
infrequent verbal responses from A.D. During direct[-]
examination on the facts at issue, however, A.D. was unable to
provide testimony regarding the incident. When asked whether
she liked N.C., A.D. shook her head. When asked whether she
had ever been at the same house as N.C., A.D. again shook her
head. When asked to identify N.C., A.D. gave no response. After
a break, A.D. shook her head in the negative when asked whether
(a) she had ever played games with N.C.; (b) whether N.C. had
ever touched her; and (c) whether she wanted to talk about the
incident. In fact, A.D. either shook her head in denial or gave no
response when repeatedly asked whether N.C. had ever touched
her.
Eventually, N.C.’s counsel objected to the continued
questioning of A.D.:
Just for the record, ... I would like to note our objection to
continuing the questioning in the face of the child’s obvious
assertions that she doesn’t want to participate. She wants
to go home. She’s not responsive to [the prosecutor’s]
questioning to any degree that’s being helpful to the
relevant facts of this particular case. It is our position that
to continue to cajole her or otherwise to force her into
answering questions is rapidly approaching a coercive
situation with this young child. And unless there’s some
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particular reason why we should continue this, we would
simply have to object to any continued type of coercion into
forcing her into answering questions.
The juvenile court overruled the objection.
Upon returning to the stand, when the prosecutor again
attempted to elicit testimony from A.D. regarding the incident, the
child became nonresponsive, curling up into a fetal position. At
that point, in time, the following discussion transpired:
[The prosecutor]: Your Honor, let the record reflect that
[A.D.] is curling up in a fetal position into a ball[.]
THE COURT: The record will reflect that.
Q. [The prosecutor]: Honey, is [N.C.] nice?
A. [A.D.]: (No response).
[The prosecutor]: She’s further curling up in a ball.
THE COURT: The record will reflect that.
[The prosecutor]: Your Honor, I don’t know if the Court
wants to inquire at all. I don’t think I'm going to get
anywhere.
THE COURT: [To the child] ... [C]an you look at me? ...
[A.D.] is not acknowledging me so, ... [to defense counsel]
why don't you go ahead and take her.
... [D]o you have any questions?
[Defense counsel]: No.
THE COURT: Okay. Just wanted to get that clear before I
entertain—okay. Go ahead. I think I will, for the record, I
mean, my position in calling her was to see if she would
testify so we don’t have to inquiry [sic ] what went on in the
break, but she's not going to testify.
Thus, A.D. refused to testify about the incident on direct
examination and eventually was unable to provide any response
to the prosecutor’s questions. Based upon the record before us,
we conclude that the juvenile court improperly deemed A.D.
“available” for purposes of the Sixth Amendment. The record
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simply does not support a determination that A.D. was available
for cross-examination by defense counsel.
In re N.C., 74 A.3d at 275-76 (emphasis in original; internal citations to the
record omitted).
In affirming our decision in In re N.C., our Supreme Court added further
details about A.D.’s conduct on the stand, and the futile efforts made to elicit
her testimony. For instance, the trial court twice recessed to give A.D. a
break, and it also allowed her to sit in her father’s lap, and with her maternal
grandmother, while being questioned by the prosecutor. In re N.C., 105 A.3d
at 1203-05. Nevertheless, A.D. still refused to respond to the prosecutor’s
questions. While A.D. nodded “yes” when asked if she knew N.C. and if he
was present in the courtroom, she thereafter either shook her head, or did not
respond at all, to at least 20 questions about N.C. and the alleged abuse. Id.
at 1203-04. Nevertheless, the questioning continued, at which point A.D.
refused to look at the prosecutor or answer any questions, and stated that
she wanted to go home. Id. at 1204-05. After taking a second break, during
which defense counsel lodged the above-quoted objection, A.D. was again
questioned and remained wholly unresponsive, ultimately curling into the fetal
position.
In comparison, here, during the direct-examination of N.W., she
testified that she was six years old, and she answered general questions about
her school, her hobbies and interests, and her pets. N.T. Trial, 5/31/17, at
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49-52. The prosecutor then asked N.W. if she knew Appellant,1 and N.W.
nodded her head. Id. at 52. When the prosecutor reminded N.W. to answer
in words, and again asked her if she knew Appellant, N.W. replied, “Yes.” Id.
The prosecutor next asked N.W. if she ever went to Appellant’s house, to which
N.W. again said, “Yes.” Id. at 57. N.W. also said “yes” when asked if
“anything happen[ed]” when she was at Appellant’s home. Id. When the
prosecutor asked N.W. what had happened, she replied, “He touched me.”
Id.
Defense counsel then objected to the next question asked of N.W., and
a lengthy sidebar discussion ensued. Id. at 57-60. When the prosecutor
resumed the direct-examination of N.W., the following exchange occurred:
[The Prosecutor]: [N.W.], can you tell us -- can you -- first of all,
can you move your arms, please? We want to see your face. No?
Can you stick your head up a little bit so we can see your face
more? Can you tell us, please, [N.W.], just be -- just -- then it
will be over. Where did [Appellant] touch you? That’s okay,
[N.W.] [N.W.], thank you. I don’t have any more questions, okay?
THE COURT: All right. Thank you. Cross-examine.
[The Commonwealth]: Thank you, Your Honor.
THE COURT: Thank you.
[Defense Counsel]: I have no questions, Your Honor.
THE COURT: All right. Okay. Thank you very much. Call your
next witness.
Id. at 60-61.
____________________________________________
1The Commonwealth asked if N.W. knew a man named “Ronnie Rizzle,” which
Appellant acknowledged was his nickname. See N.T. Trial, 5/31/17, at 267.
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Clearly, In re N.C. is distinguishable from this case. There, the victim
refused to verbally respond to at least twenty questions asked by the
prosecutor about N.C. and the alleged abuse. Efforts were made to encourage
A.D.’s testimony, including the court’s taking several breaks and permitting
A.D. to sit with her father and grandmother. Nevertheless, A.D. refused to
testify, stated she wanted to go home, would not look at the prosecutor, and
eventually curled into the fetal position. Defense counsel objected to the
questioning at one point, and made a rational decision not to cross-examine
A.D. after observing the lengthy and unsuccessful efforts by the prosecutor
and the court to elicit her testimony.
To the contrary, here, N.W. verbally answered several questions
specifically about Appellant and his abuse, including stating that Appellant had
touched her. When N.W. hid her face and refused to answer the prosecutor’s
question about where Appellant had touched her, the prosecutor immediately
concluded his direct-examination. Defense counsel then had the opportunity
to cross-examine N.W., but he chose not to ask her a single question. In light
of this record, N.W. was not unavailable, as was A.D., and Appellant was
clearly given the opportunity to cross-examine her. Thus, his argument that
his Confrontation Clause rights were violated by the admission of N.W.’s out-
of-court statements under the TYHA is meritless.
Appellant next challenges the sufficiency of the evidence to sustain his
convictions. In support of this issue, Appellant solely contends that N.W.’s
out-of-court statements were inadmissible, and “[t]he Commonwealth
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produced no other competent evidence … to establish the elements of the
crimes of [IDSI], [a]ggravated [i]ndecent [a]ssault or [c]orrupting the
[m]orals of [m]inors beyond a reasonable doubt.” Appellant’s Brief at 12.
Because, for the reasons stated supra, we reject his argument that N.W.’s
hearsay statements were improperly admitted at trial, his sufficiency-of-the-
evidence claim fails, as well.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/18
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