Com. v. Allshouse

• Decision Date: 18 April 2007
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Rickey Lee ALLSHOUSE, Jr., Appellant.
• Court: Pennsylvania Superior Court

924 A.2d 1215

COMMONWEALTH of Pennsylvania, Appellee v. Rickey Lee ALLSHOUSE, Jr., Appellant.

Superior Court of Pennsylvania.

Argued November 14, 2006.

Filed April 18, 2007.

Reargument Denied July 2, 2007.

Steven M. Barth, Pittsburgh, for appellant.

Tina A. Aracri, Pittsburgh, for appellee.

BEFORE: ORIE MELVIN, McCAFFERY and TAMILIA, JJ.

OPINION BY TAMILIA, J.:

¶ 1 Ricky Lee Allshouse, Jr., appeals from the November 2, 2005, judgment of sentence of one to three years incarceration, a fine, various costs, and restitution imposed after a jury found him guilty of simple assault¹ and endangering the welfare of a child.²

¶ 2 On or about May 26, 2004, the Brookville Police Department was asked by Jefferson County Children and Youth Services (CYS) to investigate a suspected assault on a minor, J.A., at appellant's residence. Record, No. 2, Affidavit of Probable Cause. Upon investigation, police learned that on May 20, 2004, appellant and J.A.'s mother were arguing in the family home. Appellant was shouting from the living room, where his seven-month-old son, J.A., and his twin brother were lying in a playpen. J.A.'s mother told police she heard appellant sit on a recliner in the living room and, minutes later, heard him get up from the recliner. The sound of the recliner rocking back on the floor was immediately followed by a "snapping/slapping noise," which was followed by the sound of J.A. crying. Upon hearing this series of noises, J.A.'s mother proceeded to the living room and found appellant retreating towards his bedroom. She also discovered J.A.'s four-year-old sister, A.A., had entered the playpen and was holding J.A.'s head on her lap. Id.

¶ 3 Immediately thereafter, J.A. was taken to the Brookville emergency room by his mother. Record, No. 2, Affidavit of Probable Cause. Upon examination, it became apparent J.A. had suffered a spiral fracture to the right humerus caused by "sharp and severe twisting of the arm." Shortly after J.A.'s arrival at the emergency room, hospital officials contacted CYS caseworker John Geist to assess J.A.'s welfare. N.T., 9/19/05, at 93. After assessing the situation and interviewing J.A.'s mother, Geist removed J.A. and his siblings from the family home and placed them with their paternal grandparents. Id. at 95, 104.

¶ 4 On May 27, 2004, after appellant informed Geist that A.A. could have possibly been responsible for J.A.'s injury, Geist decided to interview A.A. N.T., 9/19/05, at 104. When Geist asked A.A. if appellant had broken J.A.'s arm, A.A. "seized up quite a bit and said yes." Id. at 108. When Geist asked A.A. how appellant went about breaking J.A.'s arm, A.A. "proceeded to grab ahold of my arm, pull it, and twist." Id. at 109. After the interview was cut short by the intervention of appellant's brother, Geist returned to CYS, notified his supervisor, and recommended that A.A. be interviewed by Dr. Allen Ryen, a licensed child psychologist. Id.

¶ 5 On June 8, 2004, Dr. Ryen interviewed A.A. N.T., 9/19/05, at 156-157. Dr. Ryen's practice entails treating private patients, working on the Pennsylvania Megan's Law Board, and consulting for various government agencies. Id. at 140. During the interview, Dr. Ryen asked A.A. whether something had "happened" to J.A. Id. at 145. A.A. replied "Daddy hurt him." Id., accord N.T., Tender Years Hearing, 9/16/05, at 31. A.A. then demonstrated how J.A. was injured. Id.

¶ 6 Shortly after these interviews were conducted, appellant was arrested and charged with aggravated assault,³ simple assault,⁴ endangering the welfare of a child,⁵ reckless endangerment of another,⁶ and harassment.⁷ Record, No. 2, Police Criminal Complaint.

¶ 7 On September 16, 2005, the trial court held a tender years hearing pursuant to 42 Pa.C.S.A. § 5985.1, Admissibility of certain statements, also known as the Tender Years Hearsay Act (the Act) to determine whether the statements given by A.A. to Geist and Dr. Ryen were admissible under the tender years exception to the hearsay rule. By Order dated September 16, 2005, the trial court deemed A.A.'s statements admissible, thereby allowing both Geist and Dr. Ryen to testify about the contents of their interviews with A.A. Record, No. 30.⁸ On September 19, 2005, appellant filed a motion to reconsider asserting A.A.'s statements were testimonial hearsay and, hence, inadmissible pursuant to the United States Supreme Court's ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 8 At trial, in addition to allowing both Geist and Dr. Ryen to testify about A.A.'s statements, the trial court also admitted testimony from pediatrician Dr. Holly Davis. N.T., 9/19/05, at 170. Dr. Davis testified that J.A.'s spiral fracture was caused by tremendous force which could not have been generated by a four-year-old child. Id. at 191. Notably, Dr. Davis testified she had reviewed Dr. Ryen's records and agreed that the discussion in his report of how A.A. described the twisting and pulling action performed on J.A. by appellant was consistent with the findings she made after examining J.A.'s x-rays. Id. at 196.

¶ 9 On September 20, 2005, the jury convicted appellant of simple assault and endangering the welfare of a child and found him not guilty of aggravated assault and recklessly endangering another person. Thereafter, the trial court denied appellant's motion for reconsideration, thus concluding A.A.'s statements to both Geist and Dr. Ryen were "non-testimonial" hearsay within the meaning of Crawford. Record, No. 34.

¶ 10 On November 14, 2005, appellant filed post-sentence motions seeking a modification of sentence and seeking, inter alia, a judgment of acquittal on the endangering the welfare of a child conviction. Record, No. 43. By Opinion and Order of March 9, 2006, the court vacated an award of restitution payable to CYS but otherwise denied the motions. Record, No. 50. Appellant perfected a timely appeal with this Court and now raises the following issues for our review:

1. Are statements from a non-testifying child witness who was never cross-examined testimonial and thus excludable under the confrontation clause as required by Crawford v. Washington?

2. Did the admission of statements under the Tender Years Hearsay Act violate the ex post facto clause?

3. Can a fine be upheld when the court does not consider the statutory requirements of [42 Pa.C.S.A.] Section 9726 [Fine?]

4. Can a restitution and costs order be upheld when the Commonwealth does not satisfy its burden of proof and where the Court fails to direct how the restitution should be paid?

5. Can an order to pay Sheriff transportation costs be upheld when there is no statutory authority and does a policy imposing such costs violate the sentencing code's demand for individualized sentence?

Appellant's brief at 6.

Crawford, Davis, and Testimonial versus Non-Testimonial Hearsay

¶ 11 In considering appellant's first issue which specifically references Crawford, supra, we are required to apply the very recent United States Supreme Court decision in Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), for one of the first times in this Commonwealth. See In re S.R., 2007 Pa.Super. 79, 920 A.2d 1262 (2007). Hence, our standard of review over the trial court's admission of A.A.'s statements to Geist and Dr. Ryen is de novo and our scope of review is plenary. Commonwealth v. Corban Corp., 909 A.2d 406 (Pa.Super.2006).

¶ 12 By way of historical development, in 1980 the United States Supreme Court handed down Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held the admission of hearsay testimony made by an unavailable witness against a criminal defendant is admissible under the Confrontation Clause⁹ if the statement is surrounded by "adequate indicia of reliability." Such indicia exist, according to Roberts, when the testimony being considered either fits within a "firmly rooted hearsay exception" or contains "particularized guarantees of trustworthiness." Roberts, supra at 66, 100 S.Ct. 2531.

¶ 13 Almost 25 years later, in the summer of 2004, the Supreme Court overruled Roberts, at least in part. Crawford, supra at 67, 124 S.Ct. 1354 (referring to Roberts as a "fundamental failure" on the Court's part to interpret the Constitution). In so doing, the Court held:

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. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

Crawford, supra at 68, 124 S.Ct. 1354 (emphasis added and internal reference omitted).¹⁰

¶ 14 Predictably, lower courts wrestled with the distinction between testimonial and non-testimonial hearsay in the wake of Crawford.¹¹ Subsequently, in the summer of 2006, the Court clarified this distinction in Davis, which was handed down while this appeal was pending, by stating the following:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, supra at 2273-2274 (emphasis added).

¶ 15 The Dav...