Com. v. Charlton

• Decision Date: 23 June 2006
• Citation: 902 A.2d 554
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. Stanley Vincent CHARLTON, Jr., Appellant.
• Court: Pennsylvania Superior Court

902 A.2d 554

COMMONWEALTH OF PENNSYLVANIA, Appellee v. Stanley Vincent CHARLTON, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted March 13, 2006.

Filed June 23, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David J. Long, Reading, for appellant.

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellee.

BEFORE: GANTMAN, McCAFFERY and TAMILIA, JJ.

OPINION BY TAMILIA, J.:

¶ 1 Stanley Vincent Charlton, Jr., appeals from the December 15, 2004, aggregate judgment of sentence of ten (10) years, three (3) months to thirty-two (32) years imprisonment, to be followed by six (6) years probation, imposed after a jury found him guilty of rape,¹ involuntary deviate sexual intercourse,² incest,³ endangering the welfare of a child,⁴ corruption of minors,⁵ and three counts each of indecent exposure⁶ and indecent assault.⁷ After careful review, we affirm the judgment of sentence.

¶ 2 On July 23, 2003, appellant was charged with 18 offenses in connection with several incidents of sexual abuse that occurred between him and his daughter from July 1998 to May 2001. On December 29, 2003, appellant entered a guilty plea to some of the aforementioned charges but thereafter, on July 1, 2004, he requested permission to withdraw the plea. Permission was granted that same day. Appellant proceeded to trial on October 12, 2004, and ultimately was found guilty as indicated above. During the course of the trial, the court permitted the victim to testify via closed-circuit television.

¶ 3 On December 15, 2004, a Megan's Law hearing was held, during which the court determined appellant met the criteria for classification as a sexually violent predator (SVP) and appellant was sentenced as indicated above. Appellant filed post-sentence motions on December 27, 2004, which were denied on December 29, 2004. A notice of appeal was filed on January 6, 2005, and the court ordered appellant to file a Rule 1925(b) statement. No concise statement was filed in response to the trial court's Order, and on March 8, 2005, the court filed a Memorandum Opinion stating it was unable to review the matter.

¶ 4 On May 2, 2005, appellant's counsel filed a motion and brief to withdraw from representation in accordance with Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and its federal precursor, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The court subsequently granted counsel's request on May 24, 2005, and on June 20 2005, appellant filed a motion for appointment of new counsel. Shortly thereafter, the court appointed the Berks County Public Defenders Office to represent appellant. On August 4, 2005, counsel filed a petition for permission to file a Rule 1925(b) Statement nunc pro tunc, and this Court remanded the case on September 14, 2005. The court granted appellant's request on September 22, 2005, and his Rule 1925(b) statement was filed on October 6, 2005.

¶ 5 Now on appeal, appellant first argues the trial court erred "by allowing the Commonwealth to present evidence by closed circuit television where the Commonwealth failed to meet its burden for such evidence pursuant to the statute." Appellant's brief at 7, 14.

¶ 6 The manner and circumstances under which a child victim of sexual assault is permitted to testify outside the presence of a defendant is governed by 42 Pa.C.S.A. § 5985, Testimony by contemporaneous alternative method. The current version of this statute was enacted by our legislature on July 15, 2004 following a series of amendments to the Confrontation Clause in Article 1, Section 9, of the Pennsylvania Constitution, and our Supreme Court has affirmed an Order and Opinion of the Commonwealth Court upholding these amendments. Bergdoll v. Commonwealth, 858 A.2d 185 (Pa.Commw.2004) (en banc), affirmed, 583 Pa. 44, 874 A.2d 1148 (2005).⁸ Unlike its prior counterpart, the current version of the statute has not been recognized as unconstitutional. See Bergdoll v. Kane, 557 Pa. 72, 731 A.2d 1261 (1999); Commonwealth v. Louden, 536 Pa. 180, 638 A.2d 953 (1994).

¶ 7 In relevant part, section 5985 provides "in any prosecution or adjudication involving a child victim or a child material witness, the court may order that the testimony of the child victim or child material witness be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method," including via closed-circuit television. 42 Pa.C.S.A § 5985(a), Contemporaneous alternative method. Section 5985 further requires that the court "permit the defendant to observe and hear the testimony of the child victim or child material witness," and requires a showing that:

testifying either in an open forum in the presence and full view of the finder of fact or in the defendant's presence will result in the child victim or child material witness suffering serious emotional distress that would substantially impair the child victim's or child material witness's ability to reasonably communicate.

Id.; 42 Pa.C.S.A. § 5985(a.1), Determination. This burden can be satisfied via a hearing with the child victim or through "testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting." Id. at § 5985(a.1)(1), (2).

¶ 8 Following our careful review of the record, we find the Commonwealth clearly satisfied its burden with respect to section 5985, and find no error on the part of the trial court in permitting the victim to testify via closed-circuit television. A hearing was held on October 7, 2004 to determine whether the victim should be permitted to testify via a contemporaneous alternative method. See N.T., Motion in Limine, 10/7/04, at 1. At the hearing, the Commonwealth presented the expert testimony of Laura Darrow, a psychotherapist at the Florence Child Guidance Center who specialized in adolescent trauma and had the opportunity to treat the victim. Id. at 13-14, 17-18. Darrow testified the victim suffered from depression, suicidal thoughts, and post-traumatic stress disorder which likely would impact her ability to testify effectively. Id. at 20-23, 25-26. Darrow further testified that she "personally witnessed [the victim] regress and behave as a very young child" when questioned about the sexual abuse and that requiring her to testify in an open forum "poses a significant risk for her emotional wellbeing." Id. at 22-23. Darrow also opined "the presence of the defendant in the courtroom with [the victim] will send her into an emotional tailspin" and ultimately "impair her ability to reasonably communicate with ... the jury." Id. at 24, 31-32. Based on the foregoing, we agree with the trial court that "closed circuit television testimony was both necessary and a reasonable alternative." Trial Court Opinion, Parisi, J., 10/28/05, at 6. Accordingly, we reject appellant's claim of error.

¶ 9 Appellant next contends the court erred by admitting out-of-court statements of the child victim to Pennsylvania State Police Trooper James Marasco and Brandon Clinton, an employee with Berks County Children and Youth Services, into evidence under the tender years exception to the hearsay rule. Appellant's brief at 7, 17.

¶ 10 In reviewing a trial court's ruling on the admissibility of evidence, our standard of review is one of deference. It is firmly established, "[q]uestions concerning the admissibility of evidence lie within the sound discretion of the trial court, and [a reviewing court] will not reverse the court's decision on such a question absent a clear abuse of discretion." Commonwealth v. Chmiel, 558 Pa. 478, 493, 738 A.2d 406, 414 (1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000). An abuse of discretion requires "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. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 (2000) (citation omitted).

¶ 11 Generally, an out-of-court statement is inadmissible at trial unless it falls into one of the exceptions to the hearsay rule. Commonwealth v. Bean, 450 Pa.Super. 574, 677 A.2d 842 (1996). "The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact. Exceptions have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule." Id. at 844 (citations omitted).

¶ 12 The tender years exception to the rule against hearsay is set forth in 42 Pa.C.S.A. § 5985.1, Admissibility of certain statements. In relevant part, section 5985.1 provides that a hearsay statement of a child sexual abuse victim under the age of twelve is admissible provided the evidence is relevant and the time, content and circumstances of the statement provide sufficient indicia of reliability. Commonwealth v. O'Drain, 829 A.2d 316 (Pa.Super.2003); 42 Pa.C.S.A. § 5985.1(a), General rule. "The tender years exception allows for the admission of a child's out-of-court statement due to the fragile nature of young victims of sexual abuse." Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.Super.2002) (citation omitted).

¶ 13 Here, as indicated above, the court permitted the Commonwealth to introduce out-of-court statements made by the victim to State Trooper James Marasco and Berks County Children and Youth Services employee Brandon Clinton, pursuant to the tender years exception to the hearsay rule. N.T., 10/12-14/04, at 141-146, 150-158. Appellant argues "the admission of the tender years evidence violated [his] constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004)." Appellant's brief at 13, 17-19. The trial court determined...