In re Interest of N.C.

• Decision Date: 15 December 2014
• Docket Number: No. 5 WAP 2014,5 WAP 2014
• Court: Pennsylvania Supreme Court
• Parties: In the Interest of N.C., a Minor. Appeal of Commonwealth of Pennsylvania.

105 A.3d 1199

In the Interest of N.C., a Minor.

Appeal of Commonwealth of Pennsylvania.

No. 5 WAP 2014

Supreme Court of Pennsylvania.

Argued Oct. 7, 2014.

Decided Dec. 15, 2014.

Jeffrey D. Burkett, Esq., for Commonwealth of Pennsylvania.

Patrick Lavelle, Esq., Law Office of Patrick Lavelle, Christopher Eldon Mohney, Esq., DuBois, for N.C.

Barbara A. Zemlock, Harrisburg, Gover Perry & Shore, for Pennsylvania Association of Criminal Defense Lawyers.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION

Justice STEVENS.

In this fact-specific appeal by the Commonwealth, we consider whether the Superior Court erred in holding the right of a juvenile accused to be confronted with a witness against him conferred by the Confrontation Clause of the Sixth Amendment to the United States Constitution was violated where the juvenile court admitted into evidence an out-of-court, video-taped, forensic interview of a child complainant under the Tender Years Hearsay Act (“TYHA”), even though defense counsel did not cross-examine the child complainant who had taken the witness stand at the juvenile's contested adjudication hearing. In light of the unique circumstances of the instant matter wherein the Commonwealth conceded continued questioning of the unconversable child complainant on direct examination would have been futile, and the juvenile court suggested she be removed from the witness stand, we hold the admission of the recorded forensic interview of the child complainant violated the juvenile accused's right to confrontation under the Sixth Amendment. Accordingly, we affirm.

On November 5, 2011, the mother (hereinafter “Mother”) of the three-year-old child complainant (hereinafter “A.D.”)¹ entrusted A.D. and her other minor child, S.D., to the care of A.D.'s paternal grandmother (hereinafter “Grandmother”) at the latter's home at approximately 8:30 a.m.² Later that afternoon, Grandmother called Mother and informed her A.D. was upset and wanted to go home. Mother brought A.D. home and noticed she was lethargic. Without any provocation, A.D. told Mother “my pee pee hurts,” and that Appellee N.C. (hereinafter “N.C.”) had touched her there.³ Mother checked A.D.'s pudendum and noticed it appeared red and irritated. Thinking the redness was a rash, Mother applied Vaseline to the affected area and called N.C.'s father who also was Grandmother's boyfriend. N.C.'s father told Mother that N.C. had not been at the home all day, and she, thus, believed his absence meant it was not possible for N.C. to have touched A.D. inappropriately.

Mother did not take any further action on November 5, 2011; however, several days later, N.C.'s father admitted to Mother that N.C., in fact, had been present at the home on November 5th. Upon receiving this new information, Mother took A.D. to the Brockway Police Department where she informed the Chief of Police of A.D.'s allegations. An investigation ensued pursuant to which A.D. was questioned by a forensic interviewer at Western Pennsylvania Cares for Kids Child Advocacy Center (hereinafter “Western Pennsylvania Cares”), a facility wherein trained individuals interview children who have been abused or who are suspected of having been abused. A.D. disclosed to the forensic interviewer that N.C. had touched her pudendum, and she demonstrated digital penetration on an anatomical doll after making this revelation. Following November 5, 2011, and the interview at Western Pennsylvania Cares, A.D. told Mother at least two or three additional times that N.C. “touched her pee pee.”

The Commonwealth filed a juvenile petition wherein it alleged N.C. had committed various delinquent acts against A.D. and charged him with three counts each of aggravated indecent assault⁴ and indecent assault.⁵ The Commonwealth also filed an omnibus pre-trial motion wherein it requested that the juvenile court admit into evidence A.D.'s statements to both Mother and the forensic interviewer regarding the alleged assault pursuant to the TYHA⁶ and that due to A.D.'s tender age, the juvenile court permit certain special procedures during the presentation of her testimony.

Following the April 13, 2012, hearing held on N.C.'s motion, the juvenile court entered an Opinion and Order on April 17, 2012, wherein it stated that as the Commonwealth had indicated it intended to place A.D. on the witness stand and question her on direct examination, she would be made available for cross-examination and confrontation by N.C.; therefore, the juvenile court refrained from considering A.D. unavailable and explained it would look to the TYHA for the purpose of deciding whether A.D.'s hearsay statements would be admissible. The juvenile court further noted it was uncontested that A.D.'s out-of-court statements were relevant to the charges brought against N.C., but it found that certain statements she had made to Mother would be inadmissible at the adjudicatory hearing because they lacked sufficient indicia of reliability in that the specific time at which they were made and the circumstances surrounding those spontaneous statements were not clear. Notwithstanding, the juvenile court did determine that as the time and date of A.D.'s initial assertions to Mother and of those she made during the forensic interview were known, the Commonwealth would be allowed to introduce at the adjudicatory hearing the declarations A.D. made to her Mother on November 5, 2011, as well as the complete videotaped interview made at Western Pennsylvania Cares on November 23, 2011, provided that A.D. would testify at that hearing. See Trial Court Opinion, 4/17/12 at 4–6 and Order of Court, 4/17/12.

The adjudicatory hearing was held on May 10, 2012, and it commenced with the competency portion of questioning. At that time, the prosecutor and defense counsel questioned A.D. generally regarding her name, age, family, caregivers and her ability to discern the truth from a lie. N.T. Hearing, 5/10/12, at 8–24.⁷ A.D. both verbalized her responses to such queries and nodded or shook her head, despite the efforts of counsel and of the juvenile court to encourage her to articulate all responses. Ultimately, the juvenile court determined A.D. was not incompetent to testify under Rule 601 of the Pennsylvania Rules of Evidence and directed the prosecutor to commence direct examination. Id.⁸

The prosecutor asked A.D. whether she knew N.C. and whether he was present in the courtroom, and A.D. nodded yes and pointed to N.C. Id. at 25–26. When the prosecutor inquired if she wished to discuss N.C., A.D. shook her head in the negative. She reacted the same way when asked whether talking about him made her happy and whether she liked him, had ever played games with him, had been at the same house with him, or had ever had fun with him.Id. at 26–27. At this juncture, the prosecutor addressed A.D. as follows:

Okay. [A.D.], I need to ask you this again. And I don't want you to have to be here any longer, but I have to ask you these things. And I have to ask you to actually talk, because [the juvenile court] can't hear you if you don't talk. And he has really good ears. So I know he'll hear you if you do talk. Okay?

Id. at 27.

Despite the prosecutor's instruction, A.D., once again, shook her head when asked if she ever had had fun with N.C. and was unresponsive when the prosecutor inquired whether there was a time when she did not have fun with N.C. Id. at 28. A.D. shook her head when asked if anything bad had ever happened to her around N.C. and failed to react at all when the prosecutor queried if anything had happened to her while she was with N.C. that she did not like, at which time A.D.'s father requested that he be permitted to encourage A.D. to speak. Id. Defense counsel objected, and a short recess was taken so that A.D. could be removed from the courtroom. Defense counsel then expounded that the basis for his objection was the concern that any participation in the questioning by A.D.'s father would affect her responses. Id. at 29–31. At this early stage of the proceeding, the prosecutor stated “[A.D.] clearly does not want to talk about this. That's obviously, for the [c]ourt to decide, but I would submit that she does not want to talk about N.C.” Id. at 30. Following further discussion among the juvenile court and counsel, it was agreed that when A.D. returned to the courtroom, she would be permitted to sit on her father's lap so that she might feel more comfortable. Id. at 31–32.

A.D. initially smiled when she realized she would be testifying from a new vantage point, and after assuring her she was safe and encouraging her to tell the truth, the prosecutor resumed questioning. A.D. responded to the prosecutor's questions about her comfort level, whether she knew she was safe and whether she could remember the prosecutor's name with head gestures and nods. She replied “Yeah” when the prosecutor inquired: “Can you—Show me that you can talk. Can you say yes? ... Can you prove to [the trial court] that you can talk? You can say yes to him. Can you say yes? ... Now, let's keep talking instead of just nodding your head, okay? Can we keep talking?” Id. at 33–34. However, A.D. nodded positively when asked if she knew and liked N.C. She shook her head in the negative when the prosecutor inquired whether he ever played games with her, pretended that he was a shark, ever touched her, or if she wished to talk about whether N.C. ever had touched her. Id. at 34–35. A.D. then hugged her father, and while the prosecutor assured her it was acceptable for her to do so, he reminded her it was important for her to be truthful so that she could avoid being placed on a time out. Id. at 36.⁹

Though A.D. smiled when asked if she wished to tell the truth, she was reticent when next asked if N.C. had ever touched her and began to play with her father's hands by twisting his fingers. Id. at 36. A.D. continued to shake her head or respond “Uh-uh” to additional queries concerning whether N.C. ever touched...