Com. v. Lyons

• Decision Date: 22 September 2003
• Citation: 833 A.2d 245
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Eric Jetson LYONS, Appellant.
• Court: Pennsylvania Superior Court

833 A.2d 245

COMMONWEALTH of Pennsylvania, Appellee, v. Eric Jetson LYONS, Appellant.

Superior Court of Pennsylvania.

Submitted April 21, 2003.

Filed September 22, 2003.

William C. Van Scyoc, Erie, for appellant.

Bradley H. Foulk, Asst. Dist. Atty., and Damon C. Hopkins, Asst. Dist. Atty., Erie, for Com., appellee.

BEFORE: BOWES, GRACI, and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 In this direct appeal, Appellant, Eric Jetson Lyons, challenges his judgment of sentence entered in the Erie County Court of Common Pleas, following his convictions related to the kidnapping, rape, and attempted murder of an eight-year-old girl. Specifically, Appellant asks us to decide, inter alia, whether 42 Pa.C.S.A. § 5985.1, the Tender Years Statute, is unconstitutional on its face or as applied during his trial. We hold that the Tender Years Statute is constitutional because it does not violate a defendant's right to confront his accuser or his right to call witnesses in his favor. Accordingly, we affirm Appellant's judgment of sentence.

¶ 2 The relevant facts and procedural history are as follows. On February 15, 2001, Appellant took M.R., an eight-year-old girl, from her bed at knifepoint while her mother slept in another room. After driving to an unknown location, Appellant raped, sodomized, and strangled M.R. with a ligature. Later that night, M.R. awoke in a snowbank, bound with the ligature and unable to walk. She crawled to a fence where she was discovered by truck drivers, who summoned aid.

¶ 3 An ambulance took M.R. to St. Vincent's Hospital in Erie, Pennsylvania, where she underwent surgery to reconstruct her vagina and anus. She was hospitalized for another ten days and then transferred to a rehabilitation facility.

¶ 4 In the early morning hours following the night of the attack, M.R. made statements describing the attack and her attacker to a police officer and her mother. Five days later, M.R. assisted an FBI sketch artist in creating a composite drawing of her attacker—a black man with a goatee. M.R. began working with a therapist on February 28th, 2001, and during the next several weeks of therapy offered very detailed statements regarding the attack.

¶ 5 On February 23rd, 2001, Appellant was charged with attempted murder, rape, involuntary deviant sexual intercourse, aggravated indecent assault, indecent assault, aggravated assault, kidnapping, interference with custody of a child, possessing instruments of crime, terroristic threats, burglary, statutory sexual assault, corruption of minors, unlawful restraint, and recklessly endangering another person.¹ The court appointed counsel ("Pre-Trial Counsel") to represent Appellant. Pre-Trial Counsel represented Appellant through his omnibus pre-trial motion. Following the disposition of his pre-trial motion, Appellant dismissed Pre-Trial Counsel and was permitted to proceed to trial pro se.

¶ 6 At trial, a police officer, a psychologist, FBI agents, and M.R.'s mother all testified to out of court statements made by M.R. These statements were admitted as exceptions to the hearsay rule under the Tender Years Statute.² The Commonwealth also presented extensive physical evidence and expert testimony linking Appellant to the victim and the crime scene. On November 15, 2001, the jury found Appellant guilty of fifteen offenses related to the kidnapping, rape, and attempted murder of M.R. At Appellant's request, new counsel ("Sentence Counsel") was appointed to represent Appellant for sentencing. On January 30, 2002, the court sentenced Appellant to an aggregate term of incarceration of seventy-nine (79) years, two (2) months to one hundred fifty-eight (158) years, four (4) months. ¶ 7 Due to a conflict of interest, Sentence Counsel withdrew representation of Appellant. Appellant then received new counsel ("Post-Sentence Counsel"), who proceeded to file post-trial motions.

¶ 8 After the court denied Appellant's post-trial motions, Appellant sought to dismiss Post-Sentence Counsel, again electing to proceed pro se. After a hearing, the court allowed Post-Sentence Counsel to withdraw on July 7, 2002, and permitted Appellant to proceed pro se on direct appeal. This pro se appeal followed.

¶ 9 Appellant raises the following issues for our review:

[IS THE TENDER YEARS STATUTE UNCONSTITUTIONAL BECAUSE] APPELLANT HAS AN INHERENT RIGHT BOURNE [SIC] WITHIN THE CONSTITUTION TO FACE HIS ACCUSER AT TRIAL, TO CROSS-EXAMINATION, AND TO PRESENT A COMPLETE DEFENSE[?]

[IS THE TENDER YEARS STATUTE UNCONSTITUTIONAL BECAUSE] APPELLANT HAS A FUNDAMENTAL RIGHT TO HAVE COMPULSORY PROCESS TO CALL WITNESSES IN HIS FAVOR TO TESTIFY AT TRIAL PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS OF UNITED STATES CONSTITUTION AND ARTICLE I, SECTION IX OF PENNSYLVANIA CONSTITUTION[?]

TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FAILING TO OBSERVE OR QUESTION CHILD WITNESS IN OR OUTSIDE CHAMBERS TO DETERMINE VALIDITY OF HEARSAY BEFORE ADMITTING STATEMENTS INTO EVIDENCE[?]

TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DECLARING CHILD WITNESS UNAVAILABLE TO TESTIFY AT TRIAL PRIMARILY DUE TO SUBJECTIVE FEARS AND UNWILLINGNESS TO DISCUSS EVENTS[?]

TRIAL COURT ERRED BY ADMITTING OUT-OF-COURT HEARSAY STATEMENTS CHILD WITNESS MADE TO MAGGIE KUHN, JUDY SMITH, DENISE VALENTINE, DARLENE GONZALES, AND JOSEPH EMERICK, COURT DID NOT HOLD IN CAMERA HEARING AND STATEMENTS DID NOT FALL WITHIN EXCEPTIONS TO THE HEARSAY RULES[?]

TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY PRECLUDING APPELLANT FROM PRESENTING A DEFENSE AND BEING HEARD IN CHALLENGING COMMONWEALTH'S EVIDENCE BEFORE THE JURY[?]

TRIAL COURT ERRED BY EXCLUDING KEY ALIBI WITNESSES FROM TESTIFYING AT TRIAL DUE TO APPELLANT'S UNWILLFUL FAILURE TO PROVIDE TIMELY NOTICE OF INTENT TO OFFER SUCH WITNESSES AT TRIAL[?]

JURY VERDICT OF GUILTY WAS AGAINST WEIGHT OF EVIDENCE BASED PRIMARILY ON HEARSAY OF CHILD WITNESS AND COMMONWEALTH'S FAILURE TO PROVE MAIN ELEMENT OF ALL CHARGES BEYOND REASONABLE DOUBT[?]

(Appellant's Brief at 2-4).³

¶ 10 As a prefatory matter, although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Commonwealth v. Maris, 427 Pa.Super. 566, 629 A.2d 1014, 1017 n. 1 (1993). Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court. Id. This Court may quash or dismiss an appeal if an appellant fails to conform with the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Id.; Pa.R.A.P. 2101. For example,

The argument [section] shall be divided into as many parts as there are questions to be argued; and shall have as the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

¶ 11 In the instant case, the defects in Appellant's brief are substantial. The statement of the twelve "Questions Involved" bears no relation to the eight sections of the argument or the divisions within the argument. See Pa.R.A.P. 2116, 2119. Appellant's forty-six page argument is rambling, repetitive and often incoherent. See Pa.R.A.P. 2119. Nonetheless, in the interest of justice we address the arguments that can reasonably be discerned from this defective brief.

¶ 12 Appellant first argues that the Tender Years Statute is unconstitutional because it interferes with the fundamental right of an accused person to confront the witnesses against him. The court applied the Tender Years Statute to allow various witnesses to testify to statements made by M.R. concerning the crime. Because M.R. was not available in court, Appellant submits he was unconstitutionally prevented from challenging these statements, which were used to convict him. For these reasons, Appellant concludes he is entitled to a new trial. We disagree.

¶ 13 When reviewing a challenge to the constitutionality of a statute:

Initially, we note that a statute is presumed constitutional when it is lawfully enacted and will only be considered unconstitutional if it clearly, palpably and plainly violates the constitution. Furthermore, a party challenging the constitutionality of an act of the General Assembly has a "heavy burden" of persuasion to sustain his claim.

Commonwealth v. Hanawalt, 419 Pa.Super. 411, 615 A.2d 432 (1992) (internal citations omitted). The Tender Years Statute specifically provides, in relevant part:

Admissibility of certain statements

(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 physical abuse, indecent contact or any of the offenses enumerated in 18 Pa.C.S. Ch. 31 (relating to sexual offenses) performed with or on the child by another, 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.—Before the court makes a finding under subsection (a)(2)(ii), 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 such that the child cannot reasonably communicate. In making this determination, the court may do all of the following:

(1) Observe and question the child victim or child material witness, 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 victim or child material witness in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985.1.

¶ 14 This Court...