Commonwealth v. Barnett

CourtPennsylvania Superior Court
Writing for the CourtOPINION BY BENDER
Citation2012 PA Super 157,50 A.3d 176
Decision Date31 July 2012
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Harold Leroy BARNETT, Appellant.

50 A.3d 176
2012 PA Super 157

COMMONWEALTH of Pennsylvania, Appellee
v.
Harold Leroy BARNETT, Appellant.

Superior Court of Pennsylvania.

Submitted April 16, 2012.
Filed July 31, 2012.


[50 A.3d 180]


John J. Fioravanti, Jr., Doylestown, for appellant.

David W. Heckler, Assistant District Attorney and Michael K. Martin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.


BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J.*

OPINION BY BENDER, J.

Appellant, Harold Leroy Barnett, appeals from the judgment of sentence of 25–50 years' incarceration imposed following his conviction for various sexual offenses committed against two minors. After careful review, we affirm.

Appellant was tried by a jury over the course of four days in December of 2010. The trial court summarized the sum and substance of the facts adduced at trial as follows:

Just after Thanksgiving, in November of 2009, [A.M.] entered the bathroom while her twelve-year-old daughter B.M. was taking a shower. B.M. opened the shower door and asked her mother if she looked pregnant. When [A.M.] asked B.M. why she would ask such a thing, B.M. informed her mother that Appellant, “Uncle Roy” as she referred to him, “had been rubbing his thingy on her vagina.” As she described this to her mother, B.M. motioned with her hand, waving it around her groin area. That night, after B.M. went to bed, [A.M.] looked through B.M.'s belongings and found a used pregnancy test.

B.M. first met Appellant in approximately 2006, when her mother, [A.M.], began dating [B.W.] Appellant is [B.W.]'s uncle. B.M. stated that Appellant first started engaging in inappropriate behavior towards her in 2007, around the time that her mother graduated from art school. Following graduation, [A.M.] and [B.W.] took a vacation to the Dominican Republic, and Appellant and his wife, Donna Barnett, watched B.M. while they were away. Beginning on this occasion and continuing for several years, Appellant engaged in inappropriate behavior. B.M. would often spend time at Appellant's house after school, sometimes on her own, and on most occasions, when her cousins M.W. and Mikey were also there. M.W. and Mikey are the children of Appellant's nephew....

B.M. reported instances where Appellant would pull down his pants and start rubbing his penis against her vagina. After this happened, B.M. would go into the bathroom and “wipe the creamy stuff off.” These instances occurred in Appellant's living room, bedroom and basement. Appellant created games so

[50 A.3d 181]

that he could engage in this behavior, including one where B.M. would have a football and try running across the room to make a “touchdown.” If Appellant caught her, however, she would have to lie down and Appellant would rub his penis on her vagina. On one occasion, while B.M. was using the telephone in Appellant's living room to talk to her friends, Appellant approached her, “pulled down [her] pants and started licking [her] vagina.” Appellant often took B.M., M.W. and Mikey to swim in his neighbor's pool. During one of these outings, while M.W. and Mikey were swimming in the shallow end, Appellant brought B.M. into the deep end, removed her bathing suit and, again, began rubbing his penis against her vagina. The abuse did not end until several days before B.M. reported it to [A.M.]

When B.M. reported this sexual abuse to her mother, [A.M.] immediately contacted [J.W.], M.W. and Mikey's mother. After she received the phone call, [J.W.] approached M.W. M.W. informed her mother that Appellant had rubbed his penis against her butt.5 Specifically, M.W. related two instances where Appellant, his wife, Donna Barnett, Mikey and M.W. were all sleeping in Appellant's bed. The first instance occurred during the summer of 2009, and the second during Thanksgiving weekend of 2009. On both occasions, M.W. woke up to Appellant touching her butt.

The Tender Years Statute provides an exception to the hearsay rule, in pertinent part, as follows:

(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.

42 Pa.C.S. § 5985.1.


Regarding 42 Pa.C.S. § 5985.1(a)(1), this Court has previously stated that “[i]ndicia of reliability include: ‘the spontaneity of

[50 A.3d 183]

the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age and the lack of a motive to fabricate.’ ” Commonwealth v. Kriner, 915 A.2d 653, 657 n. 3 (Pa.Super.2007) (quoting Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 46 (2003)).

With respect to B.M.'s statement, Appellant contends that indicia of reliability was lacking because B.M. “waited five years to disclose any of this to an adult.” Appellant's Brief, at 12. Appellant argues that since B.M. spent numerous weekends with Appellant from 2004 until 2009, she had “countless occasions to report these crimes when she was alone with her mother.” Id. at 13. Appellant suggests B.M. had a motive to fabricate because, in the weeks preceding B.M.'s statement, her mother “explained sexual conduct, pregnancy [,] and peer pressure to B.M. Shortly after this discussion, the statement surfaced.” Id. Furthermore, Appellant argues, “[A.M.] waited one week to go to the police, after speaking with Appellant's wife and receiving no response.” Id. And finally, Appellant points to the fact that B.M. told Detective Cornish that “she learned about sex in health class at school and not from her mother.” Id.

With respect to the statement made by M.W. admitted through the Tender Years Statute, Appellant contends that her statement lacked indicia of reliability because “M.W. did not come forward with the allegations, but instead, was confronted by her mother after [J.W.] learned of B.M.'s experience. Initially, the child denied any sexual abuse.” Id.

Finally, Appellant challenges the statements given by B.M. and M.W. to Detective Cornish. Appellant asserts that the statements were testimonial in nature and not given in response to an emergency. Id. at 13–14. Appellant claims that the primary purpose of the statements given to Detective Cornish were “to establish or prove past events potentially relevant to the later criminal prosecution[,]” noting that “Appellant was arrested shortly thereafter ... [and the children] were old enough to understand the purpose of the meeting.” Id. at 14.

The trial court conducted a pretrial hearing on December 1, 2010 to determine the admissibility of the girls' statements to A.M., J.W., and Cornish. N.T., 12/1/10, at 22–93. During cross-examination, A.M. indicated the content of the “sex talk” she had with B.M. a week or two prior to the revelation of the allegations against Appellant. She said that she told B.M. that sex was “penetration of the penis into the vagina” and that it was “supposed to be when you're in love and special and not for when you're young; and that don't follow what you see on TV or what your friends might want to do.” Id. at 34. A.M. also said that she was prompted to give the talk when she noticed B.M. beginning to watch “more mature” TV shows, and because A.M. had it in the back of her mind since she had been trying to get pregnant from her fiancé. Id.

A.M. testified that B.M. did not use technical language when describing what happened with Appellant. She indicated that B.M. used the word “thingie” to describe Appellant's penis, telling her that Appellant “rubbed his thingie on me.” Id. at 39. B.M. didn't use the word “vagina” either, but instead she “just pointed and showed [A.M.] how he did it, like this, on her vagina.” Id. When referring to Appellant's ejaculating, B.M. “said white stuff came out.” Id.

A.M. indicated that she waited a week to inform police because it was her intent “to take [B.M.] to see a psychologist” and because A.M. “didn't want to believe it....” Id. at 35. She also took that time

[50 A.3d 184]

to talk to family members, including Appellant's wife and J.W., “just to see if this has happened before or if they knew anything.” Id. at 35–36. Ultimately, however, she did not take B.M. to a psychologist. Id. at 36.

Though A.M. tried to contact her, Appellant's wife did not call A.M. back. Id. at 38. A.M. explained:

Well, my fiancé, given that [Appellant] has really been a good person to us and fixed our house and he was around all the time, he said maybe it's not true. And we just decided to like see what happened in terms of [Appellant's wife] calling me back, because she didn't want to talk to me or [A.M.'s fiancé]. I didn't want to make a hasty move. I really didn't want to do that without all the facts.

Id. When Appellant and his wife failed to return A.M.'s calls or otherwise make some attempt to contact her, A.M. decided to take B.M. to talk to the police. Id.


J.W. testified that immediately after receiving a call from A.M., she asked M.W. if Appellant had ever touched her, and M.W. said that he did. Id. at 45. M.W. told J.W. that over Thanksgiving weekend, Appellant “was rubbing his privates against her butt.” Id. M.W. also told J.W. that it had happened once before, during the summer prior to Thanksgiving. Id. at 46. During the summer occurrence, M.W. was sleeping in a bed with her brother, Appellant's wife, and Appellant when she was woken up by...

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33 practice notes
  • Commonwealth v. Thompson, No. 2313 EDA 2013
    • United States
    • Superior Court of Pennsylvania
    • December 10, 2014
    ...the constitutionality of a statute, an appellant can raise two types of challenges: facial and as-applied. Commonwealth v. Barnett, 50 A.3d 176, 198 (Pa.Super.2012), appeal denied, 619 Pa. 684, 63 A.3d 772 (2013). Appellant attempts to assert both forms in this appeal. Appellant's Brief at ......
  • Commonwealth v. Parker, No. 918 EDA 2011
    • United States
    • Superior Court of Pennsylvania
    • November 6, 2014
    ...the trial court did not abuse its discretion in permitting Hyman's statement to go out with the jury. See Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa.Super.2012), appeal denied, 619 Pa. 684, 63 A.3d 772 (2013) (“[C]ourts [in this Commonwealth] have rarely found that materials given to jur......
  • Commonwealth v. Strafford, No. 3827 EDA 2016
    • United States
    • Superior Court of Pennsylvania
    • August 6, 2018
    ...made by a child who was twelve years old or younger at the time of the statement. 42 Pa.C.S. § 5985.1(a) ; Commonwealth v. Barnett , 50 A.3d 176, 182 (Pa. Super. 2012). Relevant to this appeal, a court may admit a child-victim's out-of-court statement for the truth of the matter asserted wh......
  • Commonwealth v. Elia
    • United States
    • Superior Court of Pennsylvania
    • December 24, 2013
    ...muster. Finucane v. Penna. Marketing Bd., 136 Pa.Cmwlth. 272, 582 A.2d 1152, 1154 (1990) (citations omitted).Commonwealth v. Barnett, 50 A.3d 176, 196–97 (Pa.Super.2012) (quoting Commonwealth v. Smith, 732 A.2d 1226, 1235–36 (Pa.Super.1999)) (some citations modified). With these principles ......
  • Request a trial to view additional results
33 cases
  • Commonwealth v. Thompson, No. 2313 EDA 2013
    • United States
    • Superior Court of Pennsylvania
    • December 10, 2014
    ...the constitutionality of a statute, an appellant can raise two types of challenges: facial and as-applied. Commonwealth v. Barnett, 50 A.3d 176, 198 (Pa.Super.2012), appeal denied, 619 Pa. 684, 63 A.3d 772 (2013). Appellant attempts to assert both forms in this appeal. Appellant's Brief at ......
  • Commonwealth v. Parker, No. 918 EDA 2011
    • United States
    • Superior Court of Pennsylvania
    • November 6, 2014
    ...the trial court did not abuse its discretion in permitting Hyman's statement to go out with the jury. See Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa.Super.2012), appeal denied, 619 Pa. 684, 63 A.3d 772 (2013) (“[C]ourts [in this Commonwealth] have rarely found that materials given to jur......
  • Commonwealth v. Strafford, No. 3827 EDA 2016
    • United States
    • Superior Court of Pennsylvania
    • August 6, 2018
    ...made by a child who was twelve years old or younger at the time of the statement. 42 Pa.C.S. § 5985.1(a) ; Commonwealth v. Barnett , 50 A.3d 176, 182 (Pa. Super. 2012). Relevant to this appeal, a court may admit a child-victim's out-of-court statement for the truth of the matter asserted wh......
  • Commonwealth v. Elia
    • United States
    • Superior Court of Pennsylvania
    • December 24, 2013
    ...muster. Finucane v. Penna. Marketing Bd., 136 Pa.Cmwlth. 272, 582 A.2d 1152, 1154 (1990) (citations omitted).Commonwealth v. Barnett, 50 A.3d 176, 196–97 (Pa.Super.2012) (quoting Commonwealth v. Smith, 732 A.2d 1226, 1235–36 (Pa.Super.1999)) (some citations modified). With these principles ......
  • Request a trial to view additional results

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