Commonwealth v. Hudson-Greenly

• Decision Date: 22 February 2021
• Docket Number: No. 403 MDA 2020,403 MDA 2020
• Citation: 247 A.3d 21
• Parties: COMMONWEALTH of Pennsylvania v. Jodie S. HUDSON-GREENLY, Appellant
• Court: Pennsylvania Superior Court

247 A.3d 21

COMMONWEALTH of Pennsylvania

v.Jodie S. HUDSON-GREENLY, Appellant

No. 403 MDA 2020

Superior Court of Pennsylvania.

Submitted January 19, 2021

Filed: February 22, 2021

Stephen William Grosh, Lancaster, for appellant.

Janie Ann Swinehart, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Jodie S. Hudson-Greenly appeals from the Judgment of Sentence of an aggregate term of two (2) years to four (4) years in prison entered in the Court of Common Pleas of Lancaster County on September 23, 2019, following a jury trial on charges that stemmed from the abuse of a minor child. We affirm.

The trial court set forth the relevant facts and procedural history herein as follows:

On July 12, 2019, [Appellant] was found guilty of the above-referenced charges following a five (5) day jury trial.¹ The convictions arose from allegations that [Appellant] and her Co-Defendant, Kenneth Greenly III, subjected the minor victim, who was eleven (11) years of age, to abuse over the course of a weekend, which included hitting her repeatedly with a belt on various parts of her body causing extensive bruising on her entire back, buttocks and thighs, forcing her to stand with her back against a wall with her knees bent at a ninety-degree (90°) angle for extended periods of time with a pot placed underneath of her in case she needed to urinate, taking her outside and pouring water over her head and prohibiting her from eating or sleeping. Prior to trial, the Commonwealth sought permission to admit certain prior statements of the minor victim describing the offenses pursuant to the Tender Years exception and for the minor victim to testify by contemporaneous alternative method. A hearing was held on April 29, 2019 at which time several witnesses testified and the child was observed and questioned outside the courtroom by the undersigned Judge. Based on the evidence presented, the undersigned Judge determined that the prior statements of the minor victim describing the offenses, were relevant and that the time, content and circumstances of the statements provide sufficient indicia of reliability. It was further found that the minor victim would suffer serious emotional distress that would substantially impair the child's ability to reasonably communicate. An Order was entered on April 30, 2019 granting in part the motion to permit certain prior statements pursuant to the Tender Years exception and permitting the minor victim to testify by contemporaneous method.

[Appellant] was sentenced on September 23, 2019 to an aggregate term of incarceration of two (2) to five (5) years. She filed a post-sentence motion on October 3, 2019, which was denied by Order dated January 28, 2020. Her notice of appeal was filed on February 27, 20[20]. [Appellant's] claims include challenges to the April 30, 2019 Order granting the Tender Years exception and permitting the minor victim to testify by contemporaneous alternative method.

Trial Court Opinion, filed 4/28/20, at 2-3.

In its Order entered on March 2, 2020, the trial court directed Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed the same on March 19, 2020, and the Commonwealth filed an answer thereto on April 13, 2020. The trial court filed its Opinion pursuant to Pa.R.A.P. 1925(a) on June 3, 2020.

In her brief, Appellant presents the following issue for our review:

WHETHER THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S POST SENTENCE MOTION REQUESTING A NEW TRIAL BY ALLOWING THE MINOR VICTIM TO TESTIFY BY CONTEMPORANEOUS ALTERNATIVE METHOD AT TRIAL?

Brief for Appellant at 6.²

This Court's standard of review of the trial court's decisions regarding the admission of evidence at trial is as follows: "The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error." Commonwealth v. Ballard , 622 Pa. 177, 197-98, 80 A.3d 380, 392 (2013), cert. denied , 573 U.S. 940, 134 S.Ct. 2842, 189 L.Ed.2d 824 (2014).

The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents 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. Goldman , 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal denied , 624 Pa. 672, 85 A.3d 482 (2014). "To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Commonwealth v. Lopez , 57 A.3d 74, 81 (Pa.Super. 2012), appeal denied , 619 Pa. 678, 62 A.3d 379 (2013).

Section 5985 of the Judicial Code governs testimony by a contemporaneous alternative method:

(a) Contemporaneous alternative method.— Subject to subsection (a.1), in any prosecution or adjudication involving a child victim [ ], the court may order that the testimony of the child victim [ ] be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method. Only the attorneys for the defendant and for the Commonwealth, the court reporter, the judge, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child victim [ ], including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child victim [ ] but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross-examination of the child victim [ ] shall proceed in the same manner as normally permitted.

(a.1) Determination.— Before the court orders the child victim [ ] to testify by a contemporaneous alternative method, the court must determine, based on evidence presented to it, 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 [ ] suffering serious emotional distress that would substantially impair the child victim's [ ] ability to reasonably communicate. In making this determination, the court may do all of the following:

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

42 Pa.C.S.A. § 5985(a), (a.1).

It is noteworthy that "[f]ew published decisions address § 5985, and those that do have not announced a standard for reviewing the trial court's decision. In [ Commonwealth v. Torres–Kuilan , 156 A.3d 1229, 1231-32 (Pa.Super. 2017) ], this Court employed the principles of statutory construction to determine whether the Commonwealth's proffer complied with § 5985 ’s terms." Commonwealth v. Tyrrell , 177 A.3d 947, 952 (Pa.Super. 2018) (citation omitted).

Appellant posits the Commonwealth failed to establish that the victim would have suffered severe emotional distress or an inability to communicate were she required to testify in the presence of Appellant.³ Appellant reasons that the testimony of the victim's adoptive mother, J.W.,⁴ did not defeat Appellant's constitutional right to confront her witnesses in a criminal proceeding. Appellant stresses J.W. admitted the victim had not been under the care of a psychiatrist or other medical provider, was not having difficulty sleeping or eating, was happy at home and at school and "did not take any medication as a result of this incident OR perhaps most importantly, having to do with the prospect of testifying." Brief for Appellant at 10-11 (emphasis in original).

Appellant also states J.W. agreed the victim knew her greatest fear of being returned to the custody of Appellant and her biological father would not be realized because she had been adopted by J.W. and had been working with a psychologist to help her relax. Id . at 11-12, 14. Appellant concludes that no testimony was presented from any medical experts or counselors pertaining to any lingering injuries which would have prevented the victim from testifying in the same courtroom with Appellant during the trial which occurred three months after the in camera testimony. Id . at 13-14.

Following our review of the entire record, we find Appellant's arguments lack merit. Essentially, Appellant asks this Court to view testimony presented to the trial court out of context and consider it in isolation as well as disregard the trial court's observations made on the record. As the trial court has stated:

In the instant matter, the Commonwealth presented the testimony of [J.W.] who, as mentioned above, is the adoptive mother of the child victim. [J.W.] testified that her family stopped going to many community events in a certain area after the child victim came to live with them because the child victim has expressed a fear of encountering [Appellant] and her co-defendant. [J.W.] testified that she was with the child victim at a community event in 2018 where the child saw [Appellant] in this matter and that upon seeing her, the child victim became pale, sweaty and started to shake. According to [J.W.], it took

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