Com. v. Cinko, B.

J-A11027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT CINKO :
:
Appellant : No. 833 WDA 2022
Appeal from the Judgment of Sentence Entered March 10, 2022
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000074-2020
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: August 4, 2023
Appellant, Brian Scott Cinko, was convicted following a three-day jury
trial of thirty-two various sexual crimes against an eight-year-old boy over a
period of approximately two months. He was subsequently sentenced to an
aggregate term of 84.5 to 189 years of incarceration. Appellant’s issues on
appeal all concern his assertion that the victim was not competent to testify.
We affirm.
S.W. and her husband, J.W., were parents to two children: A.W., the
victim in this case, and his sister, B.W. In early 2019, the family moved from
Arizona to Pennsylvania. In September, the family moved in with S.W.’s
nephew, who worked with both Appellant and S.W. A few weeks later, the
family moved into Appellant’s apartment, intending to take it over a few days
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* Retired Senior Judge assigned to the Superior Court.
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later as Appellant was set to move elsewhere. Appellant did not follow through
with that plan and stayed with the family approximately sixty days.
The parents initially slept on a couch in the living room while their
children slept in loft beds in one of the apartment’s bedrooms, with Appellant’s
bedroom across the hallway. Appellant would occasionally volunteer to watch
the children if S.W. and J.W. needed to go somewhere. Appellant “started
buying [A.W.] stuff[,] and [S.W. and J.W.] started to feel a little bit alarmed
by it.” N.T. Trial, 12/7/21, at 53 (testimony of S.W.). This included small
gifts such as a Halloween costume and candy. Appellant did not buy similar
gifts for their daughter. Appellant would also regularly have “movie night” in
his bedroom with A.W.
One evening, B.W. woke her parents up sometime around midnight,
reporting that A.W. was preventing her from sleeping. S.W. decided to check
on A.W. and saw Appellant in bed with A.W., with Appellant wearing only
underwear. S.W. reported this behavior to A.W.’s doctor, who told them to
report the incident to the Office of Children, Youth and Family (“CYF”).
Caseworkers from that agency arranged for a “rollout” interview on November
19, 2019, at the Children’s Advocacy Center (“CAC”), which “typically happens
when there is not an allegation of abuse but there may be some outside source
or some reason for somebody to suspect that something could have
occurred….” N.T. Trial, 12/6/21, at 110. When the forensic interviewer asked
A.W. who he lived with, his answer included “[Appellant], but he moved.”
Transcript of Forensic Interview, 11/19/19, at 17. The interviewer asked,
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“How come he moved?” and A.W. replied, “So my mom and my dad kicked
him out because he was doing like weird stuff. … He has been touching me
and he’s been telling me to touch him and I’m saying no….” Id. at 18. He
said that Appellant touched him “every single night” after going to bed. Id.
at 19. Appellant would “put[] his finger in … my butt,” id. at 36, as well as
“the thing that I said if you have to go pee,” which A.W. said referred to
Appellant’s “wiener.” Id. at 39. A.W. also disclosed incidents of oral sex,
including graphic descriptions of ejaculation. A.W. stated that these incidents
happened more than twenty times. As a result of these disclosures, Detective
David Hoover of the Logan Township Police Department was summoned to the
facility. He took a copy of the interview, questioned family members, and filed
charges against Appellant two days later. At trial, the Commonwealth
consolidated the charges.1
On September 14, 2020, Appellant filed a motion to determine A.W.’s
competency, arguing that his trial testimony would be tainted. The concept
of taint addresses the theory that a “child’s memory is peculiarly susceptible
to suggestibility” and probes whether the child’s memory is false or has been
distorted by suggestive interview techniques. Commonwealth v.
Delbridge, 855 A.2d 27, 35 (Pa. 2003) (“Delbridge I”). Appellant argued
that several comments from the CAC interview established that A.W. made
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1 The Commonwealth consolidated various charges based on A.W.’s
statements that the incidents happened at least twenty times. Appellant does
not raise any issues with respect to the charges or their consolidation.
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the accusations due to his parents’ planting the idea in his head. For example,
Appellant pointed out that, in the interview, A.W. “refers to [Appellant] having
a criminal past,” including saying that Appellant “did it to a 13-year-old girl[.]”
Motion to Determine Competency, 9/14/20, at ¶¶ 26; 29.2 Appellant cited
other portions of the transcript which, in his view, established that A.W. was
incapable of distinguishing fact from fiction.
On September 23, 2020, the trial court held a hearing on the motion
and conducted an in camera examination of A.W. As relevant to Appellant’s
arguments, A.W. discussed two incidents involving wild animals. The first was
A.W.’s claim that he threw “a stick up in the air and knock[ed] out a squirrel”
that had been eating a nut. N.T. Competency Hearing, 9/23/20, at 51. The
second concerned a wild deer A.W. befriended in Arizona, which he named
George. A.W. stated he would put stickers on George’s head “so I could
remember [what] he looks like.” Id. at 53-54. A.W. stated that he did not
try to make friends with deer in Pennsylvania because “[t]hey’re weird. They
… just stare and … run the other way….” Id. at 58.
The trial court issued an order and opinion in support of its conclusion
that Appellant failed to meet his burden to demonstrate that A.W. was not
competent to testify. Appellant was convicted and sentenced to an aggregate
term of 84.5 to 189 years of incarceration. He filed a timely motion
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2 Appellant pled guilty in 1994 to involuntary deviate sexual intercourse based
on sexual abuse of a twelve-year old male. The trial court denied the
Commonwealth’s motion to introduce this conviction pursuant to Pa.R.E.
404(b).
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challenging the sufficiency of the evidence and the weight of the evidence
supporting the verdict, which the court denied. See Pa.R.Crim.P. 606(A)(6);
607; 720(B). Appellant filed a timely notice of appeal and complied with the
order to file a Pa.R.A.P. 1925(b) concise statement. Appellant lists three
issues for our review:
I. Whether the trial court erred in denying … [A]ppellant’s motion
for judgment of acquittal where the jury’s guilty verdict was based
entirely on the uncorroborated testimony of an eight-year-old
alleged victim (ten at time of trial) who lacked testimonial
competency, as demonstrated by the court’s finding that the child
demonstrated a propensity to make fantastical statements “not
grounded in apparent reality and to self-contradict and forget[?]”
II. Whether the trial court erred in denying … [A]ppellant’s motion
for judgment of acquittal and motion for [a] new trial where the
incompetence of the child witness foreclosed … [A]ppellant, a
criminal defendant, from an opportunity for effective and
meaningful cross examination on the details of the criminal
allegations and, thereby, deprived him of his 6th [A]mendment[,]
constitutionally guaranteed rights to confront his accuser[?]
III. Whether the trial court erred in denying … [A]ppellant’s motion
for new trial where the jury’s guilty verdict is based solely on the
uncorroborated testimony of a child who is not competent to
testify and where, as a result, the verdict is not based on
competent, credible evidence, but is, instead, the product of
emotion and sympathy to a degree that “shocks one’s sense of
justice[?]”
Appellant’s Brief at 13-14 (unnecessary capitalization omitted).
Initially, we note that Appellant’s brief fails to comply with Pa.R.A.P.
2119(a), which states that the “argument shall be divided into as many parts
as there are questions to be argued….” Despite presenting three issues for
our review, the argument section of his brief is divided into two headings:
“Motion for judgment of acquittal – sufficiency of the evidence” and “Motion
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for new trial – weight of the evidence.” At bottom, each of the three issues
presented reduces to the assertion that A.W. was not competent to testify,
and the trial court erred in ruling otherwise. Appellant’s three issues all cite
slightly different results of the purported error: incompetent testimony cannot
produce sufficient evidence to convict; an incompetent witness violates a
defendant’s confrontation rights; and testimony by an incompetent witness
leads to a verdict not supported by the weight of the evidence as the jury’s
verdict must be due to sympathy for the child victim. Because all three of
these claims turn on the trial court’s competency decision, we address them
together.
Competency is addressed within Pa.R.E. 601, stating:
(a) General Rule. Every person is competent to be a witness
except as otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is
incompetent to testify if the court finds that because of a mental
condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving
accurately;
(2) is unable to express himself or herself so as to be
understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the
truth.
Pa.R.E. 601(a), (b).
Child witnesses are an exception to the presumption of competency, as
hearings must be held for any child witness under the age of fourteen.
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Commonwealth v. Moore, 980 A.2d 647, 651 (Pa. Super. 2009). In Rosche
v. McCoy, 156 A.2d 307 (Pa. 1959), the Supreme Court of Pennsylvania held
that the following prongs must be met for a child to testify:
There must be (1) such capacity to communicate, including as it
does both an ability to understand questions and to frame and
express intelligent answers, (2) mental capacity to observe the
occurrence itself and the capacity of remembering what it is that
[he or] she is called to testify about and (3) a consciousness of
the duty to speak the truth.
Id. at 310. Where the defendant alleges taint, that allegation is made part of
the competency hearing. Delbridge I, 855 A.2d at 40.
To properly address Appellant’s claims, we first discuss the admission of
A.W.’s CAC statement under the Tender Years Hearsay Act (“TYHA”), 42
Pa.C.S. § 5985.1. As relevant here, the TYHA permits the introduction of an
“out-of-court statement made by a child victim or witness, who at the time
the statement was made was 16 years of age or younger,” describing certain
offenses including the ones at issue herein, provided that the trial 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[.]” 42 Pa.C.S § 5985.1(a)(1)(i-ii). The trial court granted the
Commonwealth’s motion in limine to introduce substantial portions of the
conversation recorded at the CAC facility under this statute.3
The Commonwealth called A.W. on direct examination and the
testimony largely centered on competency issues, like whether A.W. could
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3 The Commonwealth agreed to remove certain portions of the interview.
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answer questions about himself, the importance of telling the truth, and
distinguishing between real life and fictional portrayals (e.g., “And Batman[:]
is … he real or is he make-believe?”). N.T. Trial, 12/6/21, at 98. With respect
to Appellant’s criminal charges, A.W. stated that Appellant touched “every
single potty area,” which A.W. said meant the “[p]ee and poop area.” Id. at
101. The specific accusations were largely established by the CAC interview,
which was approximately 1 hour and 45 minutes in length, as the discussion
of Appellant’s conduct on direct examination comprised four pages of
transcript.
Appellant had previously requested to “defer my cross[-]examination of
[A.W.] until after the jury has heard all of his testimony and let’s face it, that’s
what the CAC interview was.” Id. at 30. Consistent with this choice,
Appellant cross-examined A.W. after the videotape was played to the jury.
His cross-examination also focused on competency issues in lieu of questions
about the abuse itself.4 Among other points, Appellant asked several
questions about George the deer, and A.W. stated that he had freed George
____________________________________________
4 As stated in the factual history section supra, A.W.’s family stayed with his
uncle shortly before moving into Appellant’s apartment. Like Appellant, A.W.’s
uncle had been previously convicted of sexual offenses. Following extensive
argument on the issue, the trial court permitted Appellant to ask Detective
Hoover if he had investigated A.W.’s uncle.
During closing argument, Appellant argued that, “[u]nfortunately, this
boy was abused somewhere in the past. But it wasn’t by [Appellant]. … You
also know that [A.W.] was family [sic] for at least two weeks with a registered
child sex offender. … No, I am not saying he did it. I don’t know that and
either [sic] do you. But I would have liked to have that lead followed up on
and investigated and it wasn’t.” N.T. Trial, 12/8/21, at 124-25.
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from a bear trap. A.W. stated that he calmed George down with some corn
on the cob and then released the trap with a shovel. A.W. insisted that these
incidents were real.
On appeal, Appellant generally maintains that A.W.’s statements were
fantastical to the degree he was denied his ability to confront A.W. at trial. He
insists that, “because of the incompetency of the alleged victim, … Appellant
was foreclosed from meaningful cross examination on the details of the
criminal allegations and was, therefore, deprived of his constitutionally
guaranteed right to confront his accuser.” Appellant’s Brief at 18. Appellant
maintains that “simply because cross[-]examination was available to …
Appellant does not mean … Appellant could engage in a thoughtful exchange
with … Appellant [sic]. Cross[-]examination does not cure incompetency.”
Id. at 21.
“[T]he right of cross-examination is included in the right of an accused
in a criminal case to confront the witnesses against him. And probably no
one, certainly no one experienced in the trial of lawsuits, would deny the value
of cross-examination in exposing falsehood and bringing out the truth in the
trial of a criminal case.” Pointer v. Texas, 380 U.S. 400, 404 (1965). As it
pertains to the admission of the TYHA statements, prior to 2004, introducing
hearsay statements from unavailable witnesses was deemed not to violate the
right of confrontation provided the statements bore “adequate ‘indicia of
reliability.’” Ohio v. Roberts, 448 U.S. 56, 66 (1980), abrogated by
Crawford v. Washington, 541 U.S. 36 (2004). Under Roberts, the
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reliability of a statement was established if it fell “within a firmly rooted
hearsay exception” or if the statement had “particularized guarantees of
trustworthiness.” Id. Crawford overruled Roberts’ Confrontation Clause
analysis. Statements admitted under the TYHA do not run afoul of Crawford
provided that the statements are non-testimonial. Commonwealth v.
Allshouse, 36 A.3d 163, 173 (Pa. 2012). If non-testimonial, traditional
evidentiary rules developed by the States governing the admission of hearsay
apply, as the Confrontation Clause does not apply to non-testimonial hearsay.
Id.Because A.W. was called at trial and subjected to cross-examination,
the core requirement that the witness be available was satisfied, making
irrelevant whether the statements were testimonial. However, Appellant
maintained below that the Commonwealth’s TYHA motion should have been
denied due to the allegation of incompetency. See Response to
Commonwealth’s Motion in Limine, 11/24/20, at 6 (“Incompetent testimony
cannot be transformed into competent testimony through application of the
[TYHA].”). In his view, “the underlying competency of a child witness must
be a consideration” when admitting TYHA hearsay. Id. at 7. Appellant alludes
to a conclusion that A.W. was in fact unavailable at trial, notwithstanding his
physical presence, due to his purported incompetency. In turn, he argues
that this incompetency likewise bore on the reliability of his TYHA statements.
See 42 Pa.C.S. § 5985.1(a)(1)(i) (instructing court to determine if the “time,
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content and circumstances of the statement provide sufficient indicia of
reliability”).
We disagree. Appellant attempts to transform the standard of review
for competency questions from an abuse of discretion into a question of law
based on a de novo review of the witness’ credibility. Caselaw is clear that
credibility is not a component of the competence assessment, and that the
trial court’s decision is reviewed for an abuse of discretion.
In Delbridge I, our Supreme Court authorized a pre-trial hearing to
determine whether a child’s testimony would be tainted by extrajudicial
influence. The victims in that case were four and six years old at the time of
the crimes, and Delbridge sought a competency hearing on the grounds that
their memory had been tainted by suggestive interviewing. The trial court
held a hearing but limited it to “questions examining the ability of the children
to understand the difference between truth and non-truth, the general
capacity to remember and the ability to communicate that memory.”
Delbridge I, 855 A.2d at 33. The Delbridge I Court concluded that a pre-
trial hearing on competency is the proper mechanism for assessing potential
taint. In terms of the Rosche factors, “[t]aint speaks to the second prong,”
and relates to whether the witness has the capacity to remember the subject
of their testimony. Id. at 40. The decision set forth additional procedural
standards, such as imposing the burdens of production and persuasion on the
moving party, establishing a clear and convincing standard, and granting the
trial court discretion to permit expert testimony.
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The Delbridge I Court made clear that competency and credibility are
two separate considerations. “A competency hearing is not concerned with
credibility. Credibility involves an assessment of whether or not what the
witness says is true; this is a question for the fact finder.” Id. (quoting
Commonwealth v. Washington, 722 A.2d 643, 646 (Pa. 1998)). The Court
retained jurisdiction and affirmed after the trial court determined that the
children were competent following an evidentiary hearing. Commonwealth
v. Delbridge, 859 A.2d 1254 (Pa. 2004) (“Delbridge II”). The Delbridge
II Court assessed the court’s ruling for an abuse of discretion. “Each child
demonstrated the basic ability to communicate, to understand questions, and
provide appropriate responses, to observe and recall an event, to differentiate
between reality and make-believe, and to understand the consequences of
telling a lie.” Id. at 1258. Delbridge cross-examined the witnesses and “was
given great latitude in his questioning of [the victims] regarding the memories
of each child as to the interview process, their interactions with the various
interviewers, and any influence their mother exercised over them during the
investigation.” Id. Delbridge “failed to elicit any testimony from the children”
supporting his assertion of taint. Id.
We find that the trial court did not abuse its discretion, as A.W. gave
answers that satisfied each prong of Rosche. In its March 22, 2021 order
and opinion deeming A.W. competent, the trial court set forth its conclusions.
The trial court agreed that Appellant did advance some evidence of taint, as
the CAC interview showed that, at times, A.W. indicated that he learned about
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Appellant’s history of abuse from his parents. However, the court concluded
that Appellant failed to overcome the presumption of competency as required
by Delbridge I. Beginning with whether A.W. exhibited an understanding of
the need to tell the truth, A.W. testified that he understood the importance of
telling the truth, that telling the truth was good, and that telling a lie is bad.
A.W. correctly demonstrated that he knew the difference between the truth
and a lie based on questions by the assistant district attorney, who asked him
if it would be a lie if she said her shirt was purple. A.W. correctly responded
that it would be a lie because her shirt was yellow. A.W. also demonstrated
that he could cogently respond to questions about himself, as he knew his
birthdate, how old he was, his family members, and could discuss activities
that he enjoyed. In ruling on a competency motion, we defer to the trial
court’s assessment as it observed the witness’ demeanor and responses
firsthand. See Commonwealth v. Dowling, 883 A.2d 570, 577 (Pa. 2005)
(“[A] trial court can base its competency determination on criteria other than
specifically-targeted questions, criteria such as the witness’s demeanor,
alertness, thoughtfulness, sincerity and general responses and testimony.”).
On these Rosche factors, the trial court clearly did not abuse its discretion.
The trial court acknowledged that regarding “the minimal capacity … to
communicate, to observe an event, and to accurately recall that observation,
the record is less clear.” Order and Opinion, 3/19/22, at 25. While A.W. “had
no problem communicating,” his ability to observe and accurately recall “is
clouded by his propensity, demonstrated in all interviews, to make fantastical
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statements not grounded in apparent reality, and to volunteer reams of
information, and to self-contradict or forget.” Id. By way of example, A.W.
began his CAC interview “with a long and garbled description of flag football,”
and in follow-up comments, “it was not clear whether [A.W.] understood the
rules of flag football ... or was being responsive to the interviewer’s
questions.” Id. at 26. The trial court also cited the stories about George the
deer, implicitly concluding that the story was not real. Simultaneously, A.W.
exhibited that he could distinguish fact and fantasy. He identified Darth Vader
as a “make believe” character and identified the judge as a real person. He
also described his favorite video game, and correctly explained that the
vehicles in the game were not themselves real, but were modeled after real
cars.
Notwithstanding these issues, the trial court ultimately concluded that
Appellant failed to meet his burden and that A.W. was minimally competent.
The court opined that the fantastical aspects of A.W.’s testimony bore only on
his credibility and could be explored on cross-examination. It reasoned that
“[Appellant] will have ample opportunity and abundant material with which to
challenge the child witness’s credibility, including his fantastical statements
and his self-contradiction and forgetting in regards to the basic allegations of
offenses allegedly committed against him.” Id. at 32.
In assailing the trial court’s ruling, Appellant asks us to focus on the trial
court’s acknowledgement that A.W. made statements not grounded in reality.
According to Appellant, the court’s finding in that regard means that A.W. was
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not competent to testify as a matter of law. Appellant specifically focuses on
A.W.’s comments about George the deer, which he repeated at trial on cross-
examination, as demonstrating that A.W. should be deemed incompetent.
The trial court clearly determined that A.W. demonstrated some inability
to separate fact from fiction. This finding is supported by the record, and we
agree that it is difficult to believe that a wild deer allowed A.W. to put a sticker
on its forehead or remove a bear trap from its leg, even accepting that a small
child could pry such a trap open. However, we agree with the trial court that
these issues ultimately go to credibility, not competency, and caselaw
establishes that competency determinations have been upheld
notwithstanding a child’s testifying to matters that are highly implausible. The
Delbridge II Court determined that the trial court did not abuse its discretion
in deeming the witness competent, even though one of the victims claimed
that when Delbridge “touched her ‘tee-tee’ she could not tell anyone because
she was still in diapers.” Delbridge I, 855 A.2d at 31. As Delbridge argued,
“this statement creates the incredible inference that [the victim] could recall
events that occurred while she was an infant.” Id. Our Supreme Court did
not find that this type of implausible detail established, as a matter of law, an
incompetence to testify. Instead, the trial court retained discretion to
determine that, on balance, the witness satisfied the criteria for competency.
The case for overruling the trial court’s discretionary assessment is even
weaker here because, unlike in the Delbridge cases, the implausible aspects
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of A.W.’s statements are orthogonal to the allegations of abuse. We therefore
conclude that the court did not abuse its discretion.
The same analysis applies to the admission of the TYHA statements and
the trial court’s finding that those statements satisfied the statutory criteria
for reliability, assuming that Appellant adequately preserved a challenge to
the TYHA statements via his Confrontation Clause claims.5 In
Commonwealth v. Walter, 93 A.3d 442 (Pa. 2014), the Supreme Court held
that the competency of a witness does not bear on the admissibility of
statements under the TYHA. The victim, the four-year-old daughter of the
defendant, informed a CYS caseworker that she was afraid of her father
because of “Chuckie,” a name she used to refer to his penis. The victim was
placed in emergency foster case and subsequently made allegations of abuse
to four other witnesses.
During an in camera hearing concerning her competency taking place
before the preliminary hearing, the victim, then age five, “appeared to give
appropriate answers” to basic numbers about her age and name. Id. at 446.
“However, when the Commonwealth asked the victim various questions
related to her understanding of truth and lies, the victim gave a number of
nonsensical or bizarre answers.” Id. The trial court deemed the victim
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5 Appellant does not separately challenge the admission of the TYHA
statements. The Commonwealth does not argue that Appellant has waived
any of his claims. Because the admission of the TYHA statements formed the
basis for Appellant’s convictions, and the cross-examination of A.W. was based
on the playing of the tape, we accept for purposes of our disposition that
Appellant has not waived his Confrontation Clause claims.
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competent to testify but unavailable for purposes of the TYHA “because
testifying would cause her serious emotional distress that would substantially
impair her ability to reasonably communicate to the jury.” Id. at 447. At the
subsequent preliminary hearing, the court called the victim to testify outside
the defendant’s presence, and deemed the victim incompetent to testify based
on her answers. The Superior Court held that the child must be deemed
competent to testify before admitting statements under the TYHA.
Our Supreme Court granted the Commonwealth’s petition for review and
reversed. The Court explained the need “to recognize the difference between
the two legal concepts” at issue: competency and the TYHA hearsay exception.
Id. at 451. Competency “is not concerned with credibility. Credibility involves
an assessment of whether or not what the witness says is true.” Id.
Competency thus simply “pertains to a witness’s capacity to testify,” whereas
the hearsay exception requires “assessing the particularized guarantees of
trustworthiness surrounding the circumstances under which the statements
were uttered to the person who is testifying.” Id. (quoting Delbridge I, 855
A.2d at 45).
Appellant does not specifically challenge the trial court’s determination
that the TYHA statements satisfied the “sufficient indicia of reliability”
statutory standard. He instead argues that the two are not easily separated,
and points to the trial court’s concession that A.W. had some difficulty
distinguishing fact from fiction. Setting aside the fact that Appellant does not
specifically allege that A.W. was unavailable due to this purported
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incompetency, Appellant fails to elaborate upon his claim that his
Confrontation Clause rights were violated. A.W. testified at trial and was
subject to cross-examination and was therefore available at trial. The right to
confront accusers is a procedural guarantee, not a substantive one. “[T]he
Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural
rather than a substantive guarantee. It commands, not that evidence be
reliable, but that reliability be assessed in a particular manner: by testing in
the crucible of cross-examination.” Crawford, 541 U.S. at 61. A.W. was
subject to cross-examination, and Appellant does not provide any authority
for the proposition that the actual opportunity to confront A.W. is insufficient
even if we accept arguendo that A.W.’s inability to separate fact and fiction in
some instances does bear on the reliability of the disclosures.6
The Confrontation Clause includes no guarantee that every
witness called by the prosecution will refrain from giving
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6 Then-Justice Saylor authored a concurring opinion in Walter, highlighting
that the TYHA “does not speak in terms of ‘particularized guarantees,’ but
whether the time, content, and circumstances of the statement provide
sufficient indicia of reliability,” and argued that the framework developed by
the United States Supreme Court in Idaho v. Wright, 497 U.S. 805 (1990),
which addressed the admissibility of statements from incompetent witnesses
under the now-abrogated Roberts framework, should not be incorporated
wholesale into the TYHA. Walter, 93 A.3d at 458 (Saylor, J., concurring).
Justice Saylor also argued that competency to testify and the indicia of
reliability assessment for hearsay statements under the TYHA can be
interrelated. “To the extent the alleged victim has a generalized difficulty
distinguishing fiction from reality, or believes it is normal and acceptable to
lie, the reliability of his or her prior hearsay statements is called into question,
as such statements may be the product of imagination or creativity.” Id. at
457.
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testimony that is marred by forgetfulness, confusion, or evasion.
To the contrary, the Confrontation Clause is generally satisfied
when the defense is given a full and fair opportunity to probe and
expose these infirmities through cross-examination, thereby
calling to the attention of the factfinder the reasons for giving
scant weight to the witness’ testimony.
Delaware v. Fensterer, 474 U.S. 15, 21–22 (1985). Cf. Kentucky v.
Stincer, 482 U.S. 730, 744 (1987) (concluding that exclusion from
competency hearing adjudging witnesses competent to testify did not violate
Confrontation Clause; “the critical tool of cross-examination was available to
counsel as a means of establishing that the witnesses were not competent to
testify, as well as a means of undermining the credibility of their testimony”).
Therefore, while A.W. demonstrated some degree of unreliability in
distinguishing fact from fiction, we agree with the trial court that Appellant’s
ability to cross-examine on those topics and argue the issue to the jury
sufficiently satisfied his right to confront A.W. The trial court did not limit
Appellant’s cross-examination in any way, and he argued to the jury in closing
that A.W.’s grasp on what was real and what was not was so tenuous that the
jury should find Appellant not guilty. N.T. Trial, 12/8/21, at 127 (“And the
fact is that [A.W.] has no grasp o[n] reality. … [W]ho among you would
convict [Appellant] knowing what you now know about [A.W.]’s capacity to
issue fantastical statements[?]”). We therefore find no violation of Appellant’s
right to confront A.W.
Judgment of sentence affirmed.
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J-A11027-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2023
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