KE.B.-W. v. J.W. ( 2017 )

J-S43028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KE.B.-W., ON BEHALF OF MINOR IN THE SUPERIOR COURT OF
CHILDREN PENNSYLVANIA
Appellant
v.
J.W.
Appellee No. 287 WDA 2017
Appeal from the Order Entered January 31, 2017
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 16-7135-002
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 16, 2017
Appellant, Ke.B.-W. (“Mother”), appeals from the order dated
January 31, 2017, dismissing her petition for protection from abuse (“PFA”)
against J.W. (“Father”) on behalf of the parties’ three minor children, A.B.-
W. (born 2008), Ad.B.-W. (born 2013), and Ka.B.-W. (born 2013), and
vacating the temporary PFA order that was entered September 19, 2016.
The case dealt mainly with claims that Father had sexually abused his son,
A.B.-W., and one of his daughters, Ka.B.-W. We are constrained to affirm.
The facts and procedural history are as follows:
[Mother] initiated the instant matter on January 20, 2016 by
lodging with this Court a California custody order between
herself and [Father] pertaining to the parties’ three children.
Mother then asked the [trial c]ourt to assume jurisdiction over
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*
Former Justice specially assigned to the Superior Court.
J-S43028-17
the custody order, which provided Father with equally shared
custody of the children after an 18 month step-up period.[1]
Mother also filed a petition to modify the custody order, alleging
that Father spent significant time employed out-of-state, which,
Mother averred, the California custody order did not
contemplate. Mother sought to prevent Father’s physical
custody step-up, while Father sought to enforce the Order. The
parties thus began litigating custody matters, proceeding
through the Generations Program[2] and filing varied and
numerous motions seeking interim relief from th[e trial c]ourt.
During said litigation, Mother raised claims that Father had
physically abused her in the past. She then — on September 19,
2016 — filed a Protection From Abuse (“PFA”) petition. Therein,
Mother alleged, among other things, that [Ka.B.-W.] complained
“that her vagina was hurting” and that Father had “touched her
vagina.” Mother further averred that [Ka.B.-W.] claimed that
Father digitally penetrated her. Finally, Mother pled that [A.B.-
W.] had previously claimed to have been straddled and held
down by Father, who threatened to harm Mother if [A.B.-W.]
disclosed such behavior.
[On September 19, 2016, a] temporary PFA order was entered
against Father. Prior to the final hearing on Mother’s PFA
Petition, [on November 16, 2016, Allegheny County Children,
Youth, and Families (“CYF”)] determined that the sexual
allegations pertaining to [Ka.B.-W.] were unfounded.[3] Mother
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1
The children would stay with Father for increasingly longer periods of time.
2
The Generations Program is Allegheny County’s mandatory alternative
dispute resolution program for child custody disputes.
3
Pursuant to 23 Pa.C.S. § 6303(a), an “unfounded report,” is “[a]ny report
made pursuant to [the Child Protective Services Law, 23 Pa.C.S. §§ 6301-
6386,] unless the report is a ‘founded report’ or an ‘indicated report.’”
Section 6303(a) defines a “founded report” as one resulting from an
adjudication of child abuse, a placement into an accelerated rehabilitative
disposition program based on child abuse, or a protection from abuse order
relating to a child. It defines an “indicated report” as:
a report of child abuse made pursuant to this chapter if an
investigation by the department or county agency determines
(Footnote Continued Next Page)
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then represented that [A.B.-W.] had made allegations of sexual
abuse against Father. Per Consent Order of October 27, 2016,
the parties agreed that [A.B.-W.]’s allegations would be included
and heard with Mother’s original PFA Petition. [On December 12,
2016,] CYF . . . determined that the allegations pertaining to
[A.B.-W.] were unfounded. The police also declined to file
charges against Father.
Trial Ct. Op. at 1-2.
The matter ultimately proceeded to a PFA hearing. Although the
issues raised by Mother on appeal are limited, we review the record from the
PFA hearing in some detail here because of the serious and disturbing nature
of the allegations and the ultimate decision rendered by the trial court.
One of Mother’s issues relates to testimony at the PFA hearing by Stan
Katz, Ph.D. Dr. Katz is a clinical and forensic psychologist who had been
appointed by the California court during Mother and Father’s custody
proceedings to evaluate the parties for the purpose of determining custody.
See generally N.T. at 83-126. A significant issue in this case was whether
charges of child abuse that were made by two of the children against Father
were based on suggestive statements made to them by Mother. Prior to the
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(Footnote Continued)
that substantial evidence of the alleged abuse by a perpetrator
exists based on any of the following:
(i) Available medical evidence.
(ii) The child protective service investigation.
(iii) An admission of the acts of abuse by the perpetrator.
23 Pa.C.S. § 6303(a)(1).
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hearing, Mother filed an omnibus pre-trial motion that, among other things,
sought to exclude testimony by Dr. Katz that might be relevant to this issue
and also sought to exclude a custody evaluation report that Dr. Katz
prepared in March 2015. The custody evaluation report by Dr. Katz itself
does not appear in the certified record, but excerpts were read into the
record during the PFA hearing. Id. at 99-104, 112. These excerpts
discussed an injury to A.B.-W.’s foot and Dr. Katz’s general impression of
A.B.-W. based upon at least six interviews he had with the child between
October 2014 and December 20, 2014. Dr. Katz had no contact with the
parties or their children after completing the custody evaluation interviews.
Mother argued that his report was not relevant and contended: “[a]ny
testimony provided by Dr[.] Katz as it relates to the PFA before this court is
predictably related to ‘whether Father would sexually abuse the children’
based [on] ‘whether Mother would make this up’ based on his stale
psychological report [and] amounts to clear inadmissible character
evidence.” Am. Omnibus Pre-trial Mot., 1/19/17, at ¶ 27, R.R. 15 (emphasis
in original).4 The trial court deferred ruling on this particular issue until the
hearing. Order, 1/24/17, at ¶ 3, R.R. at 20.
The final PFA hearing took place on January 25 and 26, 2017. The
trial court described the hearing as follows:
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4
We cite to the reproduced record for the parties’ convenience.
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The [trial c]ourt viewed and admitted into evidence — per the
parties’ stipulation — videotapes of forensic interviews of both
[Ka.B.-W.] and [A.B.-W.]. The former never testified live,
however the latter did.[5] Among other things, he explained that
when the parties lived in California, his Father began to have
anal sex with him and placed a cube-shaped object into his anus.
See [N.T.] at 13-14, 17, 21-22, 24-25.[6] [A.B.-W.] testified
that such conduct continued after the parties had moved to
Pennsylvania. Id. at 15-17. [A.B.-W.] also described various
disclosures he made regarding Father’s alleged abuse and
certain physical afflictions he experienced since the averred
abuse began. Id. at 16-19. [A.B.-W.] additionally explained
that there is nothing good about his Father and nothing bad
about his Mother. Id. at 23.[7] Finally, [in volunteered
information following the conclusion of his formal testimony,
A.B.-W.] also testified that Father would attempt to have him
perform anal sex on Father and that Father threatened to harm
him if [A.B.-W.] ever told anyone about the alleged abuse. Id.
at 27.[8]
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5
The parties stipulated that A.B.-W. was competent to testify. N.T. at 5.
Mother never requested a hearing to determine that competency.
6
A.B.-W., who was eight years old at the time of the hearing, testified that
his father “stuck something in my bum hole.” N.T. at 13. When asked what
it was, he responded, “His penis.” Id. at 17. He said that this happened “a
lot,” both in California and after his family moved to Pennsylvania, and that
in California it happened “[a]bout 50 percent of the time.” Id. at 13-16. He
described how he began “fake sleeping” after the first time the alleged
assault occurred, and that, as he did, Father “would come in and stick it in.
He would be breathing funny and stick something in my bum.” Id. at 16-
17; see id. at 23-24. When asked if his father also “put a cubed-shaped
object in your bum,” A.B.-W. responded affirmatively and said that the
object felt like it had five sides. Id. at 24-25.
7
This testimony consisted only of “Yes” or “No” answers to single questions
about whether there was anything good about each parent. N.T. at 23.
8
After A.B.-W.’s testimony was concluded, and as the trial court was
dismissing him, the court asked, “[I]s there anything else you want to tell
us?” A.B.-W. replied: “Yes. I was too afraid to tell anyone except Angela
[his therapist at the time of the PFA hearing] and my Mom, but he would do
it the other way around. He would pull my pants down and try to get it up
(Footnote Continued Next Page)
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Trial Ct. Op. at 2-3.
During his testimony, A.B.-W. admitted that he did not tell a forensic
interviewer from Children’s Hospital of Pittsburgh, Jennifer Ginsberg, that his
father had performed anal sex on him because he was “really embarrassed”
at his first forensic interview. N.T. at 15-16. A.B.-W. also testified that he
told Mother about the abuse both before and after his first forensic interview
with Ms. Ginsberg, although Mother would later testify that A.B.-W. did not
tell her about the abuse until the day after that forensic interview. Id. at 16,
212. With respect to A.B.-W.’s second forensic interview by Ms. Ginsberg,
A.B.-W. answered “No” when Mother’s counsel asked him, “You didn’t tell her
then it was [Father’s] penis?” Id. at 18. When Mother’s counsel asked A.B.-
W. if he remembered “everybody you told about what your dad did to you,”
A.B.-W. answered that he told Ms. Ginsberg, among others. Id.
Mother testified about, among other things, Ka.B.-W.’s allegations of
abuse by Father. She testified that Ka.B.-W. said “her vagina hurt.” N.T. at
_______________________
(Footnote Continued)
to his bum. . . . He tried to sit on me so my penis would go up his bum but it
never did.” N.T. at 27. A.B.-W. testified, “Sometimes [Father] would be
like, he talked to himself like threatening.” Id. at 30. After being asked
whether Father “would talk to himself and threaten you at the same time,”
A.B.-W. agreed. Id. When asked to clarify whether Father “was talking to
himself” or if “[i]t was like a threat,” A.B.-W. agreed to both. Id. A.B.-W.
continued that Father would say, “[I]f you tell anyone about this I’ll hurt
you,” or “I will hurt your Mom.” Id. A.B.-W. added that the threat was
“something like that” and that “it wasn’t every time, it was every other
time.” Id.
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81.9 Mother further testified that Ka.B.-W. told Mother’s mother that “Daddy
touched my vagina.” Id. at 82. The children’s maternal grandmother did not
testify. Mother also testified that she spoke with Detective Richard Keebler of
the Allegheny County Police Department’s Sex Crimes Division. Id. at 175-
76.
After Mother’s own testimony, Mother’s next witness was Wendy Nel
Bacdayan, A.B.-W. and Ka.B.-W.’s regular pediatrician, who testified that, on
September 16, 2016, “[Ka.B.-W.] said, ‘[Y]es, he puts his fingers in my
vagina when I’m sleeping.’” N.T. at 32, 34. Ka.B.-W. made this disclosure
in her family room with Mother present, not in a clinical environment with
only Dr. Bacdayan or other clinicians present. Id. at 35, 171. Mother
testified that, when Dr. Bacdayan asked Ka.B.-W. (who at this time was
about three years old) if she knew what her private area was called, Ka.B.-
W. gave a correct answer: “In my vagina.” Id.10
Dr. Bacdayan testified that on September 22, 2016, she met with
A.B.-W. for a routine “checkup.” N.T. at 35. A.B.-W. told her that Father
had “not touched him anywhere that made him uncomfortable but he does
do some type of gorilla posture” that A.B.-W. did not like. Id. at 36.
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9
The record is unclear as to whether, in this context, Ka.B.-W. used the
word “vagina” or if this language is Mother’s. N.T. at 81.
10
Mother also testified that, before Ka.B.-W. answered, “she looked at me,”
but the record is unclear whether Mother was referring to Ka.B.-W. or Dr.
Bacdayan. N.T. at 171.
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A.B.-W. was physically normal. Id. The record does not indicate whether
Mother was in the room at the time of A.B.-W.’s statement.
Dr. Radhika Movva, a physician with Wesley Spectrum Services (a
mental health and social services agency), also testified for Mother,
specifically about A.B.-W. and psychological therapy that she provides to
him. See N.T. at 53-60. Dr. Movva’s initial evaluation of A.B.-W. was in
August 2016 and her follow-up evaluation was on October 13, 2016. Id. at
53. During the October evaluation, Mother, who was present in the room
during the evaluation, prompted A.B.-W. about being touched on the back.
Id. at 57-60. Dr. Movva stated that A.B.-W. did not then make a disclosure
of sexual abuse — “he just said that [Father] touched him on the butt.” Id.
at 58. She continued that A.B.-W. did not indicate that it was sexual in
nature and that Father “just touched him one time.” Id. at 59.
Mother also called Ms. Ginsberg, the forensic interviewer from
Children’s Hospital of Pittsburgh, who testified about her forensic interviews
of Ka.B.-W. on October 3, 2016, and of A.B.-W. on October 311 and
November 18, 2016, and who explained about forensic interviews generally
and disclosures of abuse. See N.T. at 127-45. Ms. Ginsberg presented her
credentials, stating that she has conducted approximately 500 forensic
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11
Mother testified that A.B.-W. had not made any disclosures to her prior to
his interview with Ms. Ginsberg on October 3, 2016. N.T. at 212. Mother
explained that she brought A.B.-W. with her that day “because Detective
Keebler told [her] to” do so. Id. at 177.
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interviews over the course of five years, has an undergraduate degree in
psychology and a master’s degree in social work, and has attended the
National Forensic Interviewers Training course. Id. at 128. Ms. Ginsberg
testified that, during all of her forensic interviews, including A.B.-W.’s and
Ka.B.-W’s, she adheres to the protocol of the American Professional Society
on the Abuse of Children.
Ms. Ginsberg testified that, during her forensic interview, Ka.B.-W.
“did not make a disclosure of sexual maltreatment,” N.T. at 128, and that
A.B.-W. denied that he was abused at the time of her first forensic
examination of him, id. at 131-32. When asked why she did not ask A.B.-
W. “more probing questions,” she explained that her “job is not to
interrogate him” — she cannot ask leading questions. Id. at 137. For
example, a standard question is what would the child do if a man asked to
show him or her his privates; here, A.B.-W. answered that he would “tell his
mom.” Id. at 141. Ms. Ginsberg testified that A.B.-W. did say Father stood
on top of him on all fours in some sort of gorilla pose while A.B.-W. was
lying down, but neither she nor the observers who were present throughout
the interview considered this experience a cause for concern. Id. at 144-
145.12
Megan Liska, another therapist from Wesley, testified about her
therapeutic treatment of A.B.-W. See N.T. at 42-51. She stated that
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12
Ms. Ginsberg did not clarify who these observers were.
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A.B.-W. had undergone therapy with her for one hour per week between
September 2015 and October 2016 for anxiety and concentration concerns.
Id. at 43. Ms. Liska identified the sources of A.B.-W.’s anxiety as his
relationship with Father, transitioning to a different state and a new school,
his social interactions concerning athletic competitions, and “daily
functioning.” Id. Ms. Liska identified custody transitions between parents
as another source of anxiety. Id. at 44-45.13 She worked with A.B.-W. on
various coping skills to treat his anxiety and gave him weekly assignments
to decrease his anxiety. Id. at 44. Ms. Liska testified that she was “aware
of one time that [A.B.-W.] did set a fire due to feeling anxious.” Id. at 46.14
Ms. Liska testified that, during over a year of therapy sessions, A.B.-W. had
“never disclosed any sexual abuse” to her. Id. at 48-49.
Dr. Brian Davies, a pediatrician in the same practice as Dr. Bacdayan,
testified to physical symptoms suffered by A.B.-W., including vomiting and
an upset stomach. N.T. at 70-72; see also Trial Ct. Op. at 3. Dr. Davies
met with A.B.-W. one time on January 4, 2017, and he did not determine
the underlying cause. N.T. at 70-71.
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13
Ms. Liska referred to “transition between homes” and “transition between
parents.” N.T. at 45. Ms. Liska never stated that A.B.-W. was more anxious
transitioning from Mother to Father than vice versa. Id.
14
Ms. Liska did not explain how she became “aware” that A.B.-W. set a fire
nor provide any details regarding the incident. N.T. at 46.
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Linda Nolfi, one of A.B.-W.’s teachers, testified about A.B.-W.’s anxiety
during Mother’s case in chief. N.T. at 190-93; Trial Ct. Op. at 4. She
testified that she was not aware of A.B.-W. exhibiting any problems of a
physical or sexual nature while in her classroom. N.T. at 192-93.
Kathryn Taylor, A.B.-W.’s school guidance counselor, also testified
about A.B.-W.’s anxiety. N.T. at 195. She further testified that on
December 14, 2016, A.B.-W. told her that Father “put something in [his]
bottom.” Id. at 197. A.B.-W. did not provide any additional details to her.
Id. at 196. At the time of A.B.-W.’s disclosure, Ms. Taylor already knew
“there was an investigation going on.” Id. She spoke favorably of A.B.-W.’s
willingness to disclose to her. Id. She added that, to the best of her
knowledge, A.B.-W. has not been involved in any inappropriate sexual acts
at school, either with himself or with other children. Id. at 197.
Mother called Davida Pace to testify as an expert witness regarding
“forensic interviews, forensic interview techniques, disclosures of abuse
made by children during and as a result of forensic interviews, and typical
physical symptoms of children experiencing sexual abuse.” Trial Ct. Op. at 4
(citing N.T. at 146-69). Ms. Pace is the forensic interview supervisor for the
Guidance Center Program in Wayne County, Michigan, and has conducted
approximately 3,000 forensic interviews. N.T. at 147-48. Ms. Pace has a
bachelor’s degree in psychology and a master’s degree in counseling. Id. at
148. Ms. Pace testified that repeated interviewing of children “is a bonus”
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and “a useful tool resulting in additional information [about] the alleged
abuse or whatever the topic is for that interviewee.” Id. at 148-49. Ms.
Pace emphasized, however, that it is “extremely important to point out that
it is only accurate when unbiased interviewers are conducting those
interviews and they are using appropriate interviewing techniques” and that
a forensic interviewing method should always be employed. Id. at 149,
152-53.
Ms. Pace testified that, “[w]hen a child starts to disclose it’s in steps.
. . . [W]hen they’re ready to disclose, they disclose.” N.T. at 153-54. She
testified that “the most common signs that were found in sexual[ly]
abuse[d] children are withdrawal, fear of being around the suspected
perpetrator, not doing well in school whether it’s grade school behavior, not
doing well at home with behavior, [and] regressing to earlier stages in child
development.” Id. at 156. When asked by Mother’s counsel if “fire setting”
would “fall within behavioral problems that you might identify in that
category,” Ms. Pace answered affirmatively. Id. Ms. Pace further explained
that preschool-age children are “really susceptible to coaching,” but “eight,
nine[,] ten-year[-]old[s], they developed their own sense of self and what is
right and what is wrong.” Id. at 157. She testified that false allegations of
abuse against parents or other persons can be the result of coaching. Id. at
158, 165. She continued that, while characteristics in a child such as anger,
anxiety, and fear could be attributable to abuse, if the child displayed these
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characteristics all along, then they could not specifically be attributed to
abuse. Id. at 160. Ms. Pace could not answer when asked, “What general
negative characteristic of a child does not apply to child sexual abuse?” Id.
at 161. Ms. Pace further explained that sometimes a child actually “clings”
to the person who abused him or her. Id. at 169.
Mother’s final witness was Angela Miskanin, who is employed as a
therapist with the Center for Victims. N.T. at 199. Ms. Miskanin has a
master’s degree in art therapy with a specialization in counseling; she did
not discuss whether she has training in forensic interviewing. Id. Ms.
Miskanin testified that, prior to her current employment, she had never been
employed as a therapist. Id. She began therapy with A.B.-W. in October
2016, and had seen him about a dozen times when she testified. Id. at
199-200. Ms. Miskanin testified that A.B.-W. told her that Father “had put
something in his butt and slapped and grabbed his butt.” Id. at 200. These
“disclosures” were made in January 2017 and, possibly, also in November
2016; she could not remember the precise dates. Id. at 204. She admitted
that it was not part of her job to determine the truth of any allegations. Id.
at 203.
Father also testified. He categorically denied sexually abusing A.B.-W.
and denied the allegations of sexual abuse towards Ka.B.-W. N.T. at 265,
268-69. He opined that Mother’s allegations against him are “part of a
pattern,” id. at 269, R.R. at 101, and noted that CYF found the allegations of
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abuse to be unfounded and law enforcement ultimately ceased its
investigation. Id. at 267-78.15 When asked if he “know[s] his son to be a
liar,” Father answered, “Up until the PFAs, no.” Id. at 287-88.
Additionally, Father presented the testimony of Shenoa Williams, a
certified registered nurse practitioner trained in pediatrics. N.T. at 62. On
September 16, 2016, Nurse Williams had examined Ka.B.-W. approximately
twenty-four hours after Ka.B.-W. had left an overnight visit with Father, and
she found Ka.B.-W. to have a normal ano-genital exam. Id. at 62-65. On
October 6, 2016, Nurse Williams also examined A.B.-W., including
performing a “full skin evaluation as well as an ano-genital evaluation.” Id.
at 66. Again, she found no maltreatment. Id. at 67.
Dr. Katz then testified via telephone on issues arising between the
parties and their children while they lived in California. See N.T. at 83-126.
During the parties’ custody proceedings in the California courts, the parties
executed a stipulation, signed by a California judge, that appointed Dr. Katz
as a child custody evaluator. Id. at 84, 88. Mother objected to Dr. Katz’s
testimony on the basis of limiting language in the stipulation. Id. at 90-91.
The trial court overruled that objection. Id. at 93.
Dr. Katz stated that he has had no contact with the parties or their
children since completing his custody evaluation in March 2015. N.T. at 99.
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15
Father confirmed that he “did . . . speak with” Detective Keebler and
Detective Corinne Orchowksi, neither of whom were called to testify at the
PFA hearing. N.T. at 268.
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During the course of the custody evaluation, Dr. Katz conducted at least six
interviews with A.B.-W.: two alone, one with each parent, and one at each
parent’s home. Id. at 102-03, 112, 124.
During Dr. Katz’s testimony, Father’s counsel directed him to page 32
of his report, in which Dr. Katz discussed an injury to A.B.-W.’s foot. He
stated that “[A.B.-W.] had indicated that ‘his father either sat on his foot or
stepped on it, although he does not recall it happening nor did he observe it
to happen.’” N.T. at 100. Mother objected to testimony about this matter
on the basis that “it has no relevance. It has absolutely no relevance unless
[Father] is trying to introduce it as character evidence.” Id. at 100. The
parties engaged in the following colloquy:
[FATHER’S COUNSEL:] Mother is saying that these really
happened, Father is saying that Mother was involved in this
process.
[MOTHER’S COUNSEL]: But they haven’t produced any evidence
that Mother actually told [A.B.-W.] to say that.
[FATHER’S COUNSEL]: That’s because I haven’t finished my
question. That’s because I haven’t been allowed to finish my
question.
THE COURT: Really what you’re saying is the evidence of
the child is tainted by Mother.
[MOTHER’S COUNSEL]: That’s character evidence.
Id. at 101. The trial court overruled Mother’s objection. Id. Dr. Katz was
then asked, “What do these statements lead you to believe, what is your
professional view on it?” Id. at 103. Dr. Katz responded:
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[A.B.-W.] did break a toe. Mother was trying to figure out how
he broke his toe. [A.B.-W.] did not have a memory of what
happened, so she was hypothesizing that maybe he stepped on
it, maybe Dad stepped on it because it was a definite injury to it.
Father thought it was maybe a spider bite. So I did not find that
[s]he was intentionally alienating him at that time or trying to
fabricate but that she was suggesting maybe that his toe was
stepped on because she couldn’t understand why it was broken.
Id.
Without further objection, Dr. Katz then moved on to his general
impressions of A.B.-W. Dr. Katz believed that A.B.-W. had “incorporated”
Mother’s opinions “in his own emotional vocabulary” and would repeat
assertions of things that Mother “told him” that Father had done to him. Id.
at 103-04. For example, Dr. Katz noted that A.B.-W. “spontaneously added
that his mother told him that on one occasion his father held him down on
the ground.” Id. at 104. Dr. Katz asserted that A.B.-W. “is, to some
degree, mirroring [Mother’s] distrust of [Father]” and that A.B.-W.’s
“comments . . . suggest that he has heard a number of negative or at least
cautionary comments about his father from his mother.” Id. Dr. Katz
added: “Even when [A.B.-W.] talks about the incident during which time
[Father] inappropriately held him down, he states that [he] does not recall
specifically, but that his mother told him about it.” Id. at 108.
Dr. Katz further testified that, during his two psychological interviews
with A.B.-W. without a parent present, A.B.-W. never raised claims of sexual
abuse and never exhibited “any symptoms or behaviors consistent with
being a sexually-abused child.” N.T. at 123-25. By symptoms or behaviors,
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he explained that sexually abused children “will often demonstrate hyper-
sexual arousal,” “will be more sexualized,” “talk about sexual themes,” “act
out sexually,” “can be masturbating,” and “are reported to be sexual with
peers.” Id. at 125-26. With A.B.-W., Dr. Katz “didn’t see any of these
behaviors at all nor were they reported to [him].” Id. at 126.
Dr. Katz also testified, without objection:
[I]t’s important to understand how a child’s memory is impacted
by a parent and if they’re being influenced by a parent to make
certain comments or have certain beliefs. . . . [C]hildren’s
memory is highly impacted by suggestibility. . . . So it’s a fairly
complex process and when we look at these children who have
memories we have to merely trace back how it was elicited, who
it was told to, and if there is any confirmatory evidence of it. . . .
[R]ecency is a major factor so the more recent the event
happened, the more accurate the memory is. Memories get
distorted over time, exaggerated and diminished also.
N.T. at 105, 122-23.
Father called Amy Roenker, a probation officer who has worked for the
juvenile court for eleven years and was appointed by the trial court to
supervise Father’s custody of the parties’ children. She “testified, among
other things, that she saw nothing inappropriate for him.” Trial Ct. Op. at 5
(citing N.T. at 255-64). She also related that Ad.B.-W. and Ka.B.-W. “run to
[Father], they give him hugs and kisses. It’s not out of the ordinary of a
typical father-daughter relationship.” N.T. at 256. She has seen nothing
from Father that would concern her. Id. at 257. On December 27, 2016,
A.B.-W. told her that “Dad put something in his butt – not today way back.”
Id. Ms. Roenker described the disclosure as “out of the ordinary” and not
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made in the context of a conversation. Id. at 258. At this time, “the
grandparents were still” present, but A.B.-W. made the disclosure to her
rather than them. Id. at 259.
Father’s next witness was Andrew Fleming, a CYF caseworker who
testified about CYF’s investigation into the allegations of abuse against
Father. See N.T. at 300-23. Mr. Fleming stated that CYF began its
investigation by interviewing Mother on September 16, 2016; according to
Mr. Fleming’s written record of Mother’s interview, she stated that Father
had never physically abused her. Id. at 301-02. Mr. Fleming testified that
CYF then forensically interviewed Ka.B.-W. on October 3, 2016; Ka.B.-W.
made no disclosures of maltreatment. Id. at 306. Mr. Fleming continued
that when A.B.-W. was informally interviewed on October 12, 2016, and
then forensically interviewed on November 16, 2016, after being given
“multiple opportunities” to make disclosures, the child denied that he was
abused. Id. at 303-05. Mr. Fleming further testified that CYF also
interviewed Father on October 12, 2016. Id. at 306. Mr. Fleming added
that CYF had attempted to interview Ad.B.-W. but was unable to do so. Id.
at 308.
Mr. Fleming testified that CYF deemed the allegations as to Ka.B.-W.
to be unfounded on November 16, 2016. N.T. at 305-08. He noted that CYF
had also issued an “unfounded letter” as to Ad.B.-W. on December 12, 2016,
but the exact nature of the allegations as to Ad.B.-W. are unclear from the
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record. Id. at 305-08.16 That same date, CYF found that allegations
regarding A.B.-W. were unfounded due to “contradictory statements, lack of
specificity and clarity throughout.” Id. at 305-07. When asked to explain
what he meant by “contradictory statements” and “no specificity,” Mr.
Fleming clarified:
Originally not making any kind of disclosure initially but no
specificity. Multiple interviews were done where he would give a
piece of information and later kind of built on a reason behind it.
...
[D]uring the forensic interview that was in November when
describing the incident that happened with [Father] at [Father]’s
house every other weekend, he was describing the object
inserted [into] his rectum but there was a lack of specificity of
what the characteristics were.
Id. at 307.
In sum, the testimony revealed the following with respect to the
charges of sexual abuse of the children:
• Ka.B.-W. alleged sexual abuse by Father on September 16,
2016, to Dr. Bacdayan, while in Mother’s living room with Mother present. A
pediatric nurse practitioner examined Ka.B.-W. that same day, and the
result of her ano-genital exam was normal. Ka.B.-W. did not disclose any
maltreatment during a forensic interview conducted by CYF on October 3,
2016.
____________________________________________
16
Mr. Fleming’s testimony is the only place in the record that any allegations
of abuse by Father against Ad.B.-W. are asserted.
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• A.B.-W. testified at the January 25, 2017 hearing that Father
had anal sex with him and had inserted a cube or five-sided object into his
anus when he lived in California (that is, before August 2015); that the
abuse “happens a lot” and continued after the parties moved to
Pennsylvania; and that Father also tried to have A.B.-W. perform anal sex
on Father and voiced threats during the sexual encounters. In corroboration
of some of that testimony, (1) Ms. Miskanin, one of A.B.-W.’s therapists,
testified that A.B.-W. disclosed to her that Father “had put something his
butt and slapped and grabbed his butt” possibly as early as November 2016,
and had reiterated that disclosure to Ms. Miskanin several times in January
2017; (2) in December 2016, A.B.-W repeated the allegation that Father
“put something in [his] bottom” or “put something in his butt – not today
way back,” once to his school guidance counselor, and a second time to a
probation officer who was supervising Father’s custody of the children, but
did not make that second disclosure to his grandparents, who were also
present, and did not provide additional details during either disclosure; and
(3) on January 4, 2017, A.B.-W. was treated for such physical symptoms as
vomiting and stomach upset, but the cause of the issues was never
diagnosed. On the other hand: (1) although A.B.-W. testified that he had
disclosed the abuse to Mother before and after his first forensic interview,
Mother testified that he did not tell her until after the interview; (2) on
September 22, 2016, just three days after the temporary PFA order was
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entered, A.B.-W. did not disclose any abuse to Dr. Bacdayan; (3) Ms. Liska,
A.B.-W.’s therapist between September 2015 and October 2016, testified
that A.B.-W. never disclosed sexual abuse; (4) during a forensic interview at
Children’s Hospital of Pittsburgh on October 3, 2016, A.B.-W. denied that he
was abused; (5) a pediatric nurse practitioner testified that A.B.-W.’s ano-
genital exam was normal as of October 6, 2016; (6) on October 12, 2016,
A.B.-W. denied being abused at a CYF informal interview, but one day later,
at Mother’s prompting, A.B.-W. told Dr. Movva about Father touching him
once “on the butt”; and (7) on November 16, 2016, A.B.-W. again denied
being abused at a CYF forensic interview.
During closing argument, Mother’s counsel contended that the trial
court could not “rely on the history” of the parties’ “relationship to suggest
that Mother is responsible for [A.B.-W.]’s testimony,” because “that’s
character evidence and completely inadmissible in the court.” N.T. at 336.
During his closing, Father’s counsel did not argue that Mother had suggested
anything to the children nor tainted their testimony. See id. at 331-33.
On January 31, 2017, the trial court denied Mother’s request for a PFA.
The trial court later explained:
[C]ognizant of its role as fact-finder and exclusive determiner of
credibility, the [trial c]ourt acknowledges that testimony was
presented at the hearing from which the Court could find that
Father abused his children . . . . However, the [trial c]ourt —
after having the benefit of hearing all of the live witnesses and
viewing the forensic interviews, see Ferko-Fox v. Fox, 68 A.3d
917, 924 (Pa. Super. Ct. 2013) (noting that the “trial court’s
ability to view [witnesses’] facial expressions and mannerisms
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during the . . . hearing is critical to an ability to render its
credibility determinations” (first alteration added)) — found that
Father’s denials of abuse were credible [and] that [A.B.-W.]’s
testimony of abusive conduct by Father was not credible (and
thus any disclosures he made to others . . . were simply
disclosures of incredible claims), and that the evidence
pertaining to [Ka.B.-W.] did not demonstrate by a
preponderance of the evidence that abuse occurred.
Accordingly, th[e trial c]ourt’s credibility determinations and
evaluation of the evidence, caused the [trial c]ourt to deny
Mother’s request for PFA relief. Simply put, the credible and
persuasive evidence revealed that Father did not abuse his
children. . . .
The [trial c]ourt recognizes that [A.B.-W.] testified to abuse and
that Mother presented multiple witnesses at the hearing who,
among other things, testified (i) to disclosures of alleged abuse
by Father of both [A.B.-W.] and [Ka.B.-W.], (ii) that [A.B.-W.]
presented symptoms of an abused child, and (iii) that disclosures
of abuse can become more detailed and more frequent after the
initial disclosure is made. The [trial c]ourt also viewed the
relevant forensic interviews and is aware that Mother presented
more witnesses than Father did. That said — and as noted
above — such testimony and witnesses did not convince the
[trial c]ourt that Father sexually abused his children. Indeed,
the [trial c]ourt found Father’s testimony to the contrary to be
credible.
. . . [T]he [trial c]ourt believed Father’s testimony that he did
not abuse his children and found Mother’s case — including the
testimony of [A.B.-W.], Mother, and all of her other witnesses —
to be insufficiently credible to demonstrate that Father abused
his children by a preponderance of the evidence.
Id. at 6-10 (emphasis in original; footnote omitted).
Mother filed a timely appeal and now raises the following issues:
1. Whether the [t]rial [c]ourt abused its discretion and
committed reversible error in admitting character evidence.
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2. Whether the [t]rial court abused its discretion and
committed reversible error in relying on determinations of other
government agencies in making its own determination.
Mother’s Brief at 4. Although Mother included a broader attack on the trial
court’s decision in her Rule 1925(b) Statement, including a claim that the
court “improperly denied protection of the children” despite “uncontroverted
evidence” of abuse, and that the decision was “against the manifest weight
of the evidence,” Mother does not present those issues in her appeal.17
Our standard of review is as follows:
[I]n a PFA action, we review the trial court’s legal conclusions for
an error of law or abuse of discretion. In Commonwealth v.
Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 (2000), our
Supreme Court defined “abuse of discretion” in the following
way: . . .
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.
Credibility of the witnesses and the weight accorded their
testimony is within the exclusive province of the judge as fact
finder.
Mescanti v. Mescanti, 956 A.2d 1017, 1019–20 (Pa. Super. 2008) (some
formatting and citations omitted). “The admission of evidence is committed
to the sound discretion of the trial court and an appellate court may reverse
____________________________________________
17
On March 21, 2017, Mother filed a motion for expedited review with this
Court, which was granted on April 3, 2017. This Court ordered that this
“appeal shall be listed before the first Panel available following the filing of
all briefs . . .; the expedited listing of this appeal, however, shall not
supersede the listing of any family fast-track appeal.” Order, 4/3/17.
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only upon a showing that the trial court clearly abused its discretion.”
Commonwealth v. McFadden, 156 A.3d 299, 309 (Pa. Super. 2017)
(citation omitted).
Character Evidence
First, Mother contends that the trial court “abused its discretion in
admitting [improper] character evidence, resulting in the taint of the entire
trial” in violation of Rule 404 of the Rules of Evidence. Mother’s Brief at 8.
Mother explains this contention as follows:
Father attempted . . . to prove his case by the improper
admission of character evidence. The improperly admitted
character evidence infected every facet of the trial and,
therefore, a new trial is required with a new judge who has not
been likewise infected by Father’s character assassination of
Mother. . . .
Father was pointing to the history of the poor relationship
between himself and Mother to suggest (and only merely
suggest, as Father had no evidence that Mother had, in fact,
tainted anyone’s testimony) that the children’s testimony could
not be trusted because Mother must have implanted the ideas in
the children’s heads. He intended, therefore, to show a history
of him and Mother not getting along to advance his case by
creat[ing] unfair prejudice in the mind of the [t]rial [c]ourt.
Id. In her appellate brief, Mother argues that Father failed properly to raise
an allegation of taint prior to A.B.-W.’s testimony. Mother argues that
Father was foreclosed from invoking taint because the parties had stipulated
that A.B.-W. was competent to testify. Mother’s Brief at 10-11 (“the
question of taint is one of competency and not of credibility”). Although
Mother makes her argument in general terms, she focuses almost
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exclusively on the testimony by Dr. Katz to make her argument. See id. at
9-10. Mother asserts that, the admission of Dr. Katz’s testimony, which
included excerpts from his report being read into the record, was error
because it “permitted the specter of taint to impact [the trial court’s]
credibility determinations.” Id. at 12.
Father responds: “Nowhere does the trial court state or imply that it
based its decision upon character evidence. Instead, the trial court based its
decision upon the credibility of witnesses. Determining the credibility of
witnesses is ‘within the exclusive province of the [trial c]ourt.’” Father’s
Brief at 7 (internal brackets omitted) (quoting Mescanti, 956 A.2d at 1019-
20). Father adds that “the trial court ‘while passing upon the credibility of
witnesses and the weight of the evidence produced, [was] free to believe all,
part or none of the evidence.’” Id. (quoting Commonwealth v. Ratsamy,
934 A.2d 1233, 1237 (Pa. 2007)). Father continues that, under the
Pennsylvania Rules of Evidence, “[a]ny party, including the party that called
the witness, may attack the witness’s credibility” and “[t]he credibility of a
witness may be impeached by any evidence relevant to that issue, except as
otherwise provided by statute or these rules.” Id. at 9 (quoting Pa.R.E.
607(a)-(b)).
In rejecting Mother’s Rule 404 argument, the trial court stated that the
only portion of Dr. Katz’s testimony that could possibly be of issue was that
relating to A.B.-W.’s foot injury and that the court did not believe that
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testimony “constitutes impermissible character evidence.” Trial Ct. Op. at
15. The court explained:
Dr. Katz merely appears to be noting his belief that [A.B.-W.]
may have thought Father broke his toe because Mother
“hypothesiz[ed]” that Father could have stepped on it as she did
not otherwise “understand why it was broken.” [N].T. at 103.
The [trial c]ourt does not perceive any particular character trait
in such testimony — and certainly not a negative one — except,
perhaps, curiosity, and the [trial c]ourt will not scour the
remaining portions of Dr. Katz’s testimony to find other possible
references to Mother’s character when Mother herself has not
identified them for the [trial c]ourt’s analysis.
Accordingly, the Court concludes that — based on its
construction of Mother’s otherwise vague claim — no error
occurred. That said, even if some character evidence was
erroneously admitted through Dr. Katz — as Mother appears to
contend — such error would not entitle Mother to relief. As set
forth above, the [trial c]ourt’s decision to deny the PFA petition
was not grounded — in whole or in part — on Dr. Katz’s
testimony. Any character evidence wrongly admitted through
the same thus had no bearing on the result in this case and
cannot, consequently, form the basis for reversing th[e trial
c]ourt’s order.
Id. at 15-16; see also id. at 10 (“even if Dr. Katz’s testimony should not
have been admitted and was, rather, excluded from the hearing, the end
result would have been the same: the denial of Mother’s PFA petition”).
Pennsylvania Rule of Evidence 404 states, in relevant part: “Evidence
of a person’s character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the character or
trait.” Pa.R.E. 404(a)(1). For both evidence of positive character traits and
of “bad character,” “Pennsylvania law generally limits proof of character
evidence to a person’s reputation, and opinion evidence cannot be used to
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prove character.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
781 (Pa. Super. 2015) (en banc) (citing Pa.R.E. 405(a)), appeal denied,
123 A.3d 331 (Pa. 2015). Beyond this limitation, Pennsylvania cases have
not extensively explored the meaning of “character or character trait” under
Rule 404(a)(1).18
Black’s Law Dictionary (10th ed. 2014) defines “character evidence” as
“[e]vidence regarding someone’s general personality traits or propensities,
of a praiseworthy or blameworthy nature; evidence of a person’s moral
standing in a community.” West’s Pennsylvania Practice § 404-1 (4th ed.)
____________________________________________
18
This Court has devoted the most attention to “evidence of good character
offered by a defendant in a criminal prosecution,” where it has fashioned
some additional limitations. See Commonwealth v. Lauro, 819 A.2d 100,
109 (Pa. Super. 2003) (“Evidence of good character offered by a defendant
in a criminal prosecution must be limited to his general reputation for the
particular trait or traits of character involved in the commission of the crime
charged. . . . Such evidence must relate to a period at or about the time the
offense was committed and must be established by testimony of witnesses
as to the community opinion of the individual in question, not through
specific acts or mere rumor” (emphasis and internal quotation marks
omitted; some formatting altered) (citing Commonwealth v. Luther, 463
A.2d 1073, 1077 (Pa. Super. 1983)); see also Commonwealth v. Gaines,
75 A.2d 617, 620 (Pa. Super. 1950) (“Evidence of good character is
substantive and positive evidence, not a mere make-weight to be considered
in a doubtful case, and is an independent factor which may of itself engender
a reasonable doubt or produce a conclusion of innocence” (citation omitted;
some formatting altered)). However, these cases are not clear as to
whether they apply beyond defendants offering evidence of good character
traits in criminal matters, and thus whether they would apply to the instant
action, which is both a civil matter and allegedly involves evidence of bad
character. The application of these cases to other contexts is problematic,
because Pa.R.E. 404(a)(2) allows for some exceptions to the ban on
character evidence for a defendant in a criminal case that do not apply in
any other context.
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states (without citing authority): “The term ‘character evidence’ embraces
all evidence that is probative of a character trait of a witness, a party, or
some other person or entity whose behavior or nature is pertinent to the
proceeding.” Prior to adoption of the Federal Rules of Evidence, the United
States Supreme Court noted that “[w]hat commonly is called ‘character
evidence’ is only such when ‘character’ is employed as a synonym for
‘reputation.’” Michelson v. United States, 335 U.S. 469, 477 (1948).19
Examples of character evidence cited by Pennsylvania courts include:
whether an employee was habitually reckless and careless in his work, in an
action for negligently employing an unfit person, Rosenstiel v. Pittsburg
Rys. Co., 79 A. 556 (Pa. 1911); proof of a “bad reputation” in a libel action,
Bausewine v. Norristown Herald, 41 A.2d 736, 742 (Pa.), cert. denied,
326 U.S. 724 (1945); “evidence of [a party’s] good military record,” Butler
v. Flo-Ron Vending Co., 557 A.2d 730, 733 (Pa. Super.), appeal denied,
567 A.2d 650 (Pa. 1989); and a reputation for dishonesty, Commonwealth
____________________________________________
19
Other jurisdictions have defined “character” as a “fixed disposition or
tendency, as evidence to others by the man’s habits of life,” Keith v. State,
152 S.W. 1029, 1030 (Tenn. 1913), or “a person’s tendency to act in a
certain way in all varying situations of life.” State v. Dan, 20 P.3d 829, 830
(Or. Ct. App. 2001) (quoting State v. Carr, 725 P.2d 1287, 1290 (Or. 1986)
(en banc)). “We may use decisions from other jurisdictions ‘for guidance to
the degree we find them useful and not incompatible with Pennsylvania law.’
Trach v. Fellin, 817 A.2d 1102, 1115 (Pa. Super. 2003) (en banc), appeal
denied, 577 Pa. 725, 847 A.2d 1288 (2004).” Newell v. Montana West,
Inc., 154 A.3d 819, 823 n.6 (Pa. Super. 2017).
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v. Boring, 684 A.2d 561, 569 (Pa. Super. 1996), appeal denied, 689 A.2d
230 (Pa. 1997).
Based upon these definitions and examples, we agree with the trial
court that Mother’s objection to Dr. Katz’s testimony does not qualify as an
objection to “character evidence” that is subject to Rule 404. Neither Father
nor Dr. Katz claimed that Dr. Katz’s testimony demonstrated any particular
trait, disposition, or tendency of Mother, and Mother does not identify any
particular trait that is suggested by Dr. Katz’s testimony. See Mother’s Brief
at 8-14. Dr. Katz merely noted his belief that A.B.-W. may have thought
Father broke A.B.-W.’s toe, because Mother “hypothesize[d]” that Father
could have stepped on it and could not otherwise “understand why it was
broken.” Trial Ct. Op. at 15; N.T. at 103.
Though she does not state her argument clearly, Mother apparently
contends that Dr. Katz’s testimony provided an example of Mother’s
tendency to suggest unfounded hypotheses to A.B.-W. and thereby to taint
his description of events that occurred. But the testimony by Dr. Katz to
which Mother objected did not describe Mother’s character; it merely told a
story about an event that occurred regarding A.B.-W.’s toe. N.T. at 100.
Testimony about a factual event is not inadmissible testimony that a person
has a particular character. For example, in Commonwealth v. Briggs, 12
A.3d 291, 337-38 (Pa.), cert. denied, 565 U.S. 889 (2011), a witness’s
brief mention of the defendant’s previous purchase of a firearm from him
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was held not to have been offered to show that the defendant was a person
of bad character, but instead merely to establish the prior relationship
between the witness and defendant and to show the defendant’s ability to
acquire handguns.20 Similarly, here, Father merely introduced evidence
though Dr. Katz’s testimony about a factual event — specifically, Mother’s
conversation with A.B.-W. about A.B.-W.’s toe injury — not inadmissible
testimony that Mother has a particular character trait, such as dishonesty.21
Mother additionally contends that “Father advanced his theory of taint
improperly and did not raise it as a question of competency, but of
credibility, which had the effect of infect[ing] the entire trial.” Mother’s Brief
at 7. Father responds that “the possibility of taint regarding [A.B.-W.]’s
testimony [was] not objected to at trial, nor [was it] included in Mother's
____________________________________________
20
In Commonwealth v. Fulton, 830 A.2d 567, 573 (Pa. 2003), the
Supreme Court drew a similar distinction between testimony contradicting
facts and character evidence about a reputation for honesty:
[W]here the prosecution has merely introduced evidence
denying or contradicting the facts . . . but has not assailed the
defendant’s community reputation for truthfulness generally,
evidence of the defendant’s alleged reputation for truthfulness is
not admissible. Similarly, cross-examination of the defendant
that challenges the veracity of his testimony in the particular
case, but does not touch upon his general reputation in the
community for being truthful, does not open the door to the
introduction of good character evidence concerning reputation
for truthfulness.
830 A.2d at 573 (internal citations omitted).
21
Father never articulated why he presented this evidence.
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1925(b) Statement.” Father’s Brief at 10. Father therefore suggests Mother
waived this issue.22
In Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003), the
Supreme Court of Pennsylvania held that allegations of taint of a child
witness should result in a competency hearing. It explained that issues of
taint with children are a concern, because:
The capacity of young children to testify has always been a
concern as their immaturity can impact their ability to meet the
minimal legal requirements of competency. Common experience
informs us that children are, by their very essence, fanciful
creatures who have difficulty distinguishing fantasy from reality;
who when asked a question want to give the “right” answer, the
answer that pleases the interrogator; who are subject to repeat
ideas placed in their heads by others; and who have limited
capacity for accurate memory.
Id. at 39-40. However, here the parties agreed that A.B.-W. was competent
to testify, N.T. at 5, and so both of them waived any contention that A.B.-
W.’s competency was at issue as a result of taint allegations. Mother now
apparently contends that because no party challenged A.B.-W.’s
competency, Father was precluded from arguing that A.B.-W.’s testimony
was not credible, and that the trial court was similarly precluded from
making credibility determinations regarding the child. We disagree.
The Supreme Court distinguished between competency and credibility
in Delbridge:
____________________________________________
22
The trial court did not directly address this aspect of Mother’s issue in its
opinion.
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A competency hearing concerns itself with the minimal capacity
of the witness to communicate, to observe an event and
accurately recall that observation, and to understand the
necessity to speak the truth. A competency hearing is not
concerned with credibility. Credibility involves an assessment of
whether or not what the witness says is true; this is a question
for the fact finder. An allegation that the witness’s memory of
the event has been tainted raises a red flag regarding
competency, not credibility. Where it can be demonstrated that
a witness’s memory has been affected so that their recall of
events may not be dependable, Pennsylvania law charges the
trial court with the responsibility to investigate the legitimacy of
such an allegation.
855 A.2d at 40 (citations omitted). The Court’s explanation makes clear that
competency is an important threshold question, but nothing in Delbridge
holds that a witness found to be competent cannot then be found incredible.
The “ability to correctly remember the events in question is properly a
question of credibility, and not of taint.” Commonwealth v. Moore, 980
A.2d 647, 652 (Pa. Super. 2009), appeal denied, 991 A.2d 311 (Pa. 2010).
Credibility is always an appropriate issue in assessing a witness’s testimony.
The trial court never stated that it found A.B.-W.’s testimony to be
tainted; it only found that A.B.-W. was not credible. Trial Ct. Op. at 6-7, 9-
10. Moreover, the trial court explicitly stated that it did not rely on Dr.
Katz’s testimony, either in whole or in part, to deny Mother’s PFA petition.
Trial Ct. Op. at 10, 16. Therefore, even if Dr. Katz’s testimony was
improperly admitted on a taint issue, the trial court has advised that it did
not decide the case on that basis. “[A] trial court acting as the fact-finder is
presumed to know the law, ignore prejudicial statements, and disregard
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inadmissible evidence.” McFadden, 156 A.3d at 309 (citation and internal
quotation marks omitted). Thus, even if this evidence was improperly
admitted and even if the trial court had not explicitly stated that this
evidence had no bearing on its ruling, we would still conclude that the trial
court properly disregarded it. Trial Ct. Op. at 10; see also id. at 16;
McFadden, 156 A.3d at 309.
To summarize, Dr. Katz’s testimony did not disparage Mother’s
character, and Dr. Katz testified that Mother was not trying deliberately to
alter A.B.-W.’s memory. Mother cannot succeed on her legal arguments
because this testimony is neither character evidence nor adverse to her.
Even assuming her arguments had merit, the trial court explicitly stated that
it did not rely on Dr. Katz’s testimony, and, thus, there is no prejudice to
Mother. Therefore, we hold the trial court did not abuse its discretion
regarding the testimony by Dr. Katz. McFadden, 156 A.3d at 309.23
____________________________________________
23
In her brief, Mother also argues that Dr. Katz’s testimony should have
been deemed inadmissible, because the stipulation and order from the
California family court that permitted his retention stated that Dr. Katz’s
report was to be used only in the California court and, she continues,
allowing its use in Pennsylvania violated the Full Faith and Credit Clause of
the United States Constitution. Mother’s Brief at 10. Our review of the
record discloses that Mother failed to raise this issue during the PFA hearing;
Mother’s counsel did not explicitly argue the trial court should comply with
the California order pursuant to the Full Faith and Credit Clause. See N.T. at
90-91. Thus, Mother failed to preserve this issue for our review. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal”). In addition, Mother’s
statement of issues in her brief does not include this issue, so that it is not
before us. See Pa.R.A.P. 2116(a).
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Determinations by Government Agencies
Mother’s second issue — “[w]hether the [t]rial court abused its
discretion and committed reversible error in relying on determinations of
other government agencies in making its own determination” — was not
included in Mother’s Rule 1925(b) Statement.24 An issue that is not included
in a Rule 1925(b) statement cannot be raised for the first time on an appeal
to this Court. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005) (“Any issues not raised in a Pa.R.A.P.1925(b) statement will be
deemed waived”). Hence, Mother’s second issue was not preserved for our
review.
____________________________________________
24
The issues raised in that statement were:
1. The [trial c]ourt improperly admitted character evidence
against Mother in contravention of Pa.R.E. 404;
2. The [trial c]ourt improperly admitted the testimony of
Dr[.] Stan Katz in contravention to the parties’ joint stipulation
filed in their California custody matter, which stipulation was also
made an order of the Superior Court of Los Angeles County.
Admission of Dr[.] Katz’s testimony violated the terms of the
parties’ stipulation and the Full Faith and Credit clause of the
United States Constitution;
3. The [trial c]ourt improperly denied protection for the
children when uncontroverted evidence was presented that
Father had sexually abused at least his son;
4. The [trial c]ourt’s decision was against the manifest weight
of the evidence.
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Even if this second issue were preserved for our review,25 it is
meritless. Mother contends that the trial court based its decision on the fact
that CYF concluded the sexual abuse allegations were unfounded and that
the police declined to charge Father. She argues that the court therefore
committed an error similar to that in Boykin v. Brown, 868 A.2d 1264 (Pa.
Super. 2005), where we reversed a trial court’s decision because it
abdicated its fact-finding responsibility by deferring to the decisions of
others. Mother’s reliance on Boykin is misplaced.
In Boykin, the trial court impermissibly delegated all of its fact-finding
and credibility responsibilities to the District Attorney:
After the parties testified, the PFA judge stated that he was
going to withhold his decision until the police decided whether to
file criminal charges against Brown based on the incident of
January 4, 2004. The PFA judge indicated that he would grant
the PFA Petition if the police filed criminal charges against Brown
based upon that incident, but would deny the PFA Petition if the
police did not file charges. . . . [R]ather than applying the
preponderance of the evidence standard to Boykin’s PFA Petition,
the PFA court deferred its decision to the District Attorney’s
office, and indicated that it would base its PFA ruling on the
District Attorney’s decision as to whether to prosecute Brown on
criminal charges. By allowing the PFA decision to be
determined, in effect, by the District Attorney’s office, the PFA
court permitted the decision to be made based on a standard of
criminal culpability. This clearly was error. . . . Thus, a
____________________________________________
25
Mother stated in her Rule 1925(b) statement that she could not discern
the trial court’s reasons for denying her PFA petition in its January 31, 2017
order, and she contends in her brief that she thus could not have known to
include this issue. See Mother’s Brief at 14. The trial court did not state its
reasons until it prepared its Rule 1925(a) decision, which observed that CYF
concluded the sexual abuse allegations were unfounded and that the police
declined to charge Father.
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determination by a District Attorney or the police as to whether
to file criminal charges against a defendant in a PFA proceeding
is not relevant to the PFA court’s decision.
Boykin, 868 A.2d at 1265–66 (citations to the record omitted); see also
Karch v. Karch, 885 A.2d 535, 538 (Pa. Super. 2005) (credibility
determinations cannot be based on whether or not police choose to act
against the alleged perpetrator).
In the current case, the trial court did not make its decision whether to
grant a PFA order contingent on any decision of the district attorney not to
prosecute Father, of the police not to bring charges, or of CYF to deem all
reports of abuse by Father unfounded. It merely considered the conclusions
of other authorities as part of its overall fact-finding — one of the many
pieces of evidence it reviewed in order for it to understand the totality of the
factual circumstances. See Trial Ct. Op. at 2; Mescanti, 956 A.2d at 1023.
Accordingly, Boykin is not applicable to the current facts, see 868 A.2d at
1265, and Mother’s second issue is without merit.
* * *
We have concluded that the two issues raised by Mother do not entitle
her to relief. And yet, we find the facts of this case deeply troubling. Two
young children have stated that they were sexually abused. One of them
testified in court, where he gave detailed and graphic testimony about that
abuse and then, when his testimony was completed, volunteered more
testimony about abuse before he left the stand. Other witnesses gave
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testimony supporting the claims. But, the evidence was hotly disputed, and
several witnesses gave testimony that undermined or contradicted the
claims of abuse. In the end, the trial court chose to believe Father’s denials
and not to believe the children. Mother’s appeal does not challenge that
judgment, and instead raises only two evidentiary matters that we conclude
are meritless.
It is, of course, fundamental in our system of justice that the role of a
trial court in a non-jury matter is to hear witnesses, assess credibility, and
resolve factual disputes. We depend on our trial judges to faithfully carry
out that difficult duty, and we will not substitute our judgment for theirs.
See McElrath v. Commonwealth, 592 A.2d 740, 745 (Pa. Super. 1991).
We are mindful of that restriction here. Accordingly, and constrained by our
standard of review, we affirm the decision by the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
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