In the Interest of: B.C.H., a Minor ( 2017 )


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  • J-S64039-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: B.C.H., A                  IN THE SUPERIOR COURT
    MINOR                                                    OF
    PENNSYLVANIA
    APPEAL OF: B.C.H.
    No. 211 MDA 2017
    Appeal from the Order Entered December 28, 2016
    In the Court of Common Pleas of Lancaster County
    Juvenile Division at No(s): CP-36-JV-0000525-2016
    BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*
    CONCURRING MEMORANDUM BY PANELLA, J. FILED NOVEMBER 20, 2017
    My esteemed colleagues in the Majority contend that the juvenile court
    erred by refusing to allow B.C.H. to cross-examine one of the victims, B.F., on
    her romantic interest in another boy at the time of the criminal incident. I
    disagree with that contention. However, because the Majority nevertheless
    affirms the order entered in the Juvenile Division of the Lancaster County
    Court of Common Pleas, I respectfully concur.
    “The scope of cross-examination is a matter within the discretion of the
    trial court and will not be reversed absent an abuse of that discretion.”
    Commonwealth v. Rashid, 
    160 A.3d 838
    , 845 (Pa. Super. 2017) (citation
    omitted). “Discretion is abused when the course pursued represents not
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-S64039-17
    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.” Interest of J.B.,
    
    147 A.3d 1204
    , 1218 (Pa. Super. 2016) (citation omitted).
    The right to cross-examine witnesses, though fundamental, is not
    absolute. See Commonwealth v. Rosser, 
    135 A.3d 1077
    , 1088 (Pa. Super.
    2016) (en banc). “[T]he Sixth Amendment does not entitle the defendant to
    cross-examine a Commonwealth witness on a subject for which the defendant
    cannot provide a factual foundation.” 
    Id. For instance,
    our Supreme Court has
    held that a trial court acted within its discretion in barring cross-examination
    of a Commonwealth witness about alleged threats made to that witness, when
    the defense attorney was unable to provide any factual basis for those
    questions. See Commonwealth v. Briggs, 
    12 A.3d 291
    , 335 (Pa. 2011). In
    short, a defendant is not permitted to engage in “fishing expeditions” under
    the guise of cross-examination. 
    Rosser, 135 A.3d at 1089
    .
    In his brief, Appellant argues that if B.F. were interested in A.J., another
    boy, B.F. would not have wanted A.J. to hear about her consensual sexual
    contact with Appellant. Thus, Appellant claims, B.F. had a clear motive to lie
    in her testimony by stating that Appellant had sexually assaulted her.
    Appellant assumes the initial premise—that B.F. was romantically interested
    in A.J.— to advance his theory as to why B.F. might be an untruthful witness.
    However, Appellant fails to provide even a shred of evidence in support of
    -2-
    J-S64039-17
    either assertion. Instead, Appellant maintains he should have been permitted
    to build support for these unsubstantiated suppositions during his questioning.
    Appellant’s attempts to pursue this line of questioning rely entirely on
    speculation. Even Appellant’s appellate brief is couched in terms of
    uncertainty—he indicates he wished to elicit information on B.F.’s “potential”
    interest in A.J. as possible motivation for B.F. to give untruthful testimony
    about whether she consented to Appellant’s conduct. See Appellant’s Brief, at
    11. Appellant himself does not contend that B.F. was romantically interested
    in A.J., only that he wished to explore this angle.
    However, without anything further, Appellant’s allegations undoubtedly
    constitute an impermissible fishing expedition. See 
    Rosser, 135 A.3d at 1089
    .
    Thus, I believe the court acted well within its discretion in precluding Appellant
    from pursuing this baseless conjecture. See 
    Rashid, 160 A.3d at 845
    .
    Because the juvenile court did not err, there is no need for the majority
    to apply the harmless error test. I must therefore concur.
    -3-
    

Document Info

Docket Number: 211 MDA 2017

Filed Date: 11/20/2017

Precedential Status: Precedential

Modified Date: 11/20/2017