Com. v. Kriner

• Decision Date: 02 January 2007
• Citation: 915 A.2d 653
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David KRINER, Appellant.
• Court: Pennsylvania Superior Court

915 A.2d 653

COMMONWEALTH of Pennsylvania, Appellee v. David KRINER, Appellant.

Superior Court of Pennsylvania.

Filed January 2, 2007.

Argued September 6, 2006.

Ralph L.S. Montana, Clarion for appellant.

Jeffery D. Burkett, Assistant District Attorney, Brooksville, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., HUDOCK, JOYCE, STEVENS, MUSMANNO, KLEIN, BENDER, McCAFFERY and PANELLA, JJ.

OPINION BY JOYCE, J.:

¶ 1 David Kriner, Appellant, appeals from his judgment of sentence entered February 22, 2005, in the Court of Common Pleas of Jefferson County. After careful review and consideration, we vacate Appellant's judgment of sentence and remand. The relevant facts and procedural history of this matter are as follows.

¶ 2 Appellant sexually assaulted his step-daughter, H.S., beginning when she was six years old. The assaults continued until H.S. was nine and she disclosed the abuse to school officials who, in turn, contacted Jefferson County Children and Youth Services ("CYS"). Following an investigation, Appellant was charged on March 19, 2003, with four counts each of rape, involuntary deviate sexual intercourse, and indecent assault.¹

¶ 3 Tragically, on August 23, 2003, H.S. was killed in a traffic accident. Faced with this circumstance, on October 14, 2003, the Commonwealth filed a pre-trial motion in limine seeking a ruling on the admissibility of H.S.'s out-of-court statements describing the sexual abuse. Specifically, the Commonwealth wanted to introduce the statements H.S. made to a school friend, Brandi Battaglia; C.G. Johnson School official John Zamperini; her mother, Melissa Kriner; Rob Wallace and Kristi Mathews of CYS; H.S.'s sister, Emily Helper; Dr. Allen Ryen, Ph.D.; and H.S.'s grandmother, Judy Shuckers. The Commonwealth argued that the statements were admissible under the tender years exception to the hearsay rule and under the hearsay exception relating to the unavailability of a declarant.² A hearing was held on December 22, 2003, and the trial court granted the Commonwealth's motion in limine to admit the evidence. On October 5, 2004, Appellant proceeded to a non-jury trial and was found guilty on all counts. He was sentenced on February 16, 2005, to five to ten years of incarceration for each of the rape convictions to run consecutively with each other. The involuntary deviate sexual intercourse and indecent assault sentences merged with the rape sentence. An order correcting an error in the February 16th sentencing order was entered February 22, 2005. Thereafter, Appellant filed a timely notice of appeal on March 16, 2005. On March 31, 2005, the trial court ordered Appellant to file a statement of matters complained of on appeal pursuant to Pa.R.A.P.1925 within fourteen days of the date he received the transcripts. The transcripts were filed on April 26, 2005; however, Appellant filed his 1925(b) statement prior to that on April 1, 2005. On May 31, 2005, the trial court issued its 1925(a) opinion, which indicated its reliance on its earlier opinion dated February 4, 2004.

¶ 4 In this appeal, Appellant presents two issues for our consideration, to-wit:

1. Whether the trial court erred in granting the Commonwealth['s] Motion in Limine where it ruled the hearsay statements of a minor child made to various individuals were admissible at trial under the tender years exception to the hearsay rule where the minor child was deceased and where the minor child had not testified at any proceeding because [Appellant] waived the matter to trial without [a] preliminary hearing?

2. Whether the trial court erred in imposing a sentence upon [Appellant] which was, under the facts and circumstances of the case, manifestly excessive[,] especially where the Pre[-]Sentence report recommended sentences on the four counts of Rape of five to ten years to run concurrently and not consecutively?

Appellant's brief, at 4.

¶ 5 Appellant's first issue alleges the trial court erred in admitting H.S.'s out-of-court statements through various witnesses at trial under the tender years exception to the hearsay rule. The admission of evidence is within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. Commonwealth v. Delbridge, 580 Pa. 68, 859 A.2d 1254, 1257 (2004). "An abuse of discretion is not merely an error of judgment; rather, discretion is abused when" "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060, 1076 (2002). "To the extent our inquiry focuses upon the meaning and application of the statute, this Court's review is plenary and non-deferential." Commonwealth v. Conklin, 587 Pa. 140, 897 A.2d 1168, 1174 (2006) (citations omitted).

¶ 6 Generally, an out-of-court statement is inadmissible at trial unless it falls into one of the exceptions to the hearsay rule. Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa.Super.2006) citing 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. (citations omitted).

¶ 7 The tender years exception is one such exception to the hearsay rule. It is codified at 42 Pa.C.S.A. § 5985.1 and provides:

(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. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), 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

(ii) is unavailable as a witness.

(a.1) Emotional distress.— In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate. In making this determination, the court may do all of the following:

(1) Observe and question the child, either inside or outside the courtroom.

(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.

(a.2) Counsel and confrontation.—If the court hears testimony in connection with making a finding under subsection (a)(2)(ii), all of the following apply:

(1) Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present.

(2) If the court observes or questions the child, the court shall not permit the defendant to be present.

(b) Notice required.—A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent's intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

42 Pa.C.S.A. § 5985.1 (emphasis added). "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).

¶ 8 Initially, several of the prerequisite factors were met to satisfy the tender years exception in that the child was less than twelve years old, was describing an enumerated offense, and the statements possessed indicia of reliability.³ The issue in this case turns on whether H.S. was unavailable as defined under subsection (a)(2)(ii) and § (a.1).

¶ 9 Appellant contends that H.S. was not unavailable as contemplated by the statute because § (a.1) requires that "in order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate." Obviously, since H.S. died, no such determination could be made and it would be impossible to meet the statute's definition of unavailable. He argues that the admission of the evidence violated his right to confront witnesses as provided by the Pennsylvania Constitution, Article 1, Section 9.

¶ 10 In response, the Commonwealth urges this Court to define unavailable under "its normal meaning" and refers us to the "traditional legal meaning" as defined in Pa.R.E. 804. In Pa.R.E. 804, unavailability is defined as a witness not being able to testify because of, inter alia, death. The Commonwealth further argues that the original draft of § 5985.1 does not assign any special definition to the term unavailable. The Commonwealth reasons that the General Assembly's subsequent amendment to § 5985.1 to include § (a.1) was designed to aid courts in determining when, in a "normal...