Com. v. Caines, S. ( 2019 )

J-S48024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN CAINES, :
:
Appellant : No. 1256 EDA 2018
Appeal from the Judgment of Sentence December 4, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001295-2016
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 17, 2019
Appellant, Sean Caines, appeals from the judgment of sentence entered
on December 4, 2017, in the Montgomery County Court of Common Pleas.
We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history as follows:
On December 15, 2015, [K.C. left her children in Appellant’s
care] while she ran errands. Notes of Testimony (“N.T.”) Apr. 6,
2018 at 25. The three children were [ages eight, six, and three]
at the time[.] [The eight-year-old child] was at a friend’s house
during the incident. [Appellant told K.C.] that he intended to work
out in the basement and the children could play in the basement
during that time. Id. at 27. K.C. prepared to leave the home. Id.
Upon realizing that she forgot insurance paperwork needed for her
errand, [K.C.] came back into the home and attempted to print
the document on the printer in [an] upstairs bedroom. Id. at 28.
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* Retired Senior Judge assigned to the Superior Court.
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[K.C.] encountered difficulty and went to the basement to seek
[Appellant’s] assistance. Id. When [K.C.] entered the basement,
she observed [Appellant] sitting on the end of his workout bench
with [the six-year-old victim (“Child”)] straddling [Appellant’s] lap
and [Appellant was] moving [Child] up and down on his genitals.
Id. at 29. [Child’s] arms [were] around [Appellant’s] neck. Id. at
32. [Appellant’s] legs were spread and he had his hands on
[Child’s] hips. Id. Both [Appellant] and [Child] were fully clothed.
Id. at 75, 163. When [Appellant] saw [K.C.], he pushed [Child]
onto the ground and attempted to [act] as if he and [Child] were
playing. Id. at 30. [Appellant] remained seated on the end of the
bench and placed his elbows on his knees in such a way that [K.C.]
could not see whether or not [Appellant] had an erection. Id. at
30, 33. [K.C.] asked [Appellant] to print the paper that she had
difficulty printing[,] and he went upstairs to do so. Id. at 86. After
printing the paper, [Appellant] returned to the basement to work
out. Id.
K.C. and [her] children went upstairs to the family room. Id.
at 87. [K.C. asked Child] about what [K.C.] had seen. Id. at 36-
37. [K.C.] asked [Child] what was happening in the basement. Id.
at 45. [Child] indicated that [Child] had been sitting on
[Appellant’s]. Id. [Child] indicated that [Appellant] moved [Child]
up and down on his penis. Id. at 46. [Child] indicated that this had
also happened “I don’t know, three times, lots and lots of times.”
Id. [Child] indicated that when [Child] asked [Appellant] why he
was doing it, [Appellant] said “because if feels good.” Id. [K.C.]
testified that she had never seen [Child] sit on [Appellant’s] lap in
that manner before this incident. Id. at 72.
[K.C.] told [Child] that [Child] had not done anything wrong,
but what happened to [Child] was wrong. Id. at 46. When
[Appellant] came out of the basement to take a shower, [K.C.]
left the home with all three of [the] children and went to a friend’s
house. Id. at 47. [K.C.] reported the incident to police the next
day from a hotel. Id. at 52. [Child] was interviewed by Mission
Kids on December 21, 2015. Id. at 107.
At trial, [Child] testified that[, while] playing in the
basement … [Appellant] asked [Child] to come over to him and
picked [Child] up and rubbed [Child] against his private parts in
the basement. Id. at 160-161, 163-165. [Child] testified that it
happened on at least one other occasion in [a] bedroom. Id. at
168-170. In the bedroom, [Child] asked [Appellant] why he was
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doing it and he told [Child] that it felt good. Id. at 170. [Child]
testified [to being] sad and mad as a result of [Appellant’s]
actions. Id.
[Appellant] testified in his own defense. He testified that on
December 15, 2015[,] he was in the basement with two of [the]
children. N.T., Apr. 7, 2017 at 11. He testified that he was laying
on his back on his workout bench, stretching before his workout
when [Child] climbed on to him, which he said was not unusual.
Id. at 13. He stated that [Child] straddled him as he continued to
stretch his back. Id. [Appellant asserted t]he second child
attempted to climb on top of him as well, at which point he sat up
to begin his workout. Id. He testified that he put his hand under
[Child’s] butt and bounced [Child] up and down simulating a pony
ride. Id. at 14. [Appellant] testified that [Child] was seated
midway on his thighs. Id. at 33. [Appellant] testified that he
frequently played with [the] children in a physical manner. Id. at
36. He further testified that he told [Child] that “it feels good”
weeks prior to the date of the instant offense in relation to where
[Child] was sitting on his stomach while he was laying on his bed
with K.C. present in the room. Id. at 48. He stated that he told
[Child] it did not feel good for [Child] to sit on his stomach, it felt
good if [Child] sat lower, on his hip area. Id.
Following a jury trial, [Appellant] was found guilty of one
count of Indecent Assault-Person under 131, one count of
Endangering the Welfare of a Child2 and one count of Corruption
of Minors.3 On December 4, 2017, [the trial court] imposed three,
concurrent sentences of 11 ½ to 23 months in the county
correctional facility. [Appellant] filed a post sentence motion and
supplement thereto, which were denied by Order of March 29,
2018. This timely appeal followed. By Order of April 30, 2018,
[Appellant] was directed to produce a statement of errors
pursuant to Pa. R.A.P. 1925 (b); he has since complied with that
directive.
1 18 Pa. C.S.A. § 3126 (a)(7).
2 18 Pa.C.S.A. § 4304.
3 18 Pa.C.S.A. § 6301 (a)(1)(ii).
Trial Court Opinion, 11/14/18, at 1-4.
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On appeal, Appellant presents the following issues for this Court’s
consideration:
1. Did the trial court err in denying [Appellant’s] Motion to Exclude
Testimony based on taint?
2. Did the trial court err in admitting the hearsay statements of
[Child], where those statements did not meet the requirements of
the Tender Years exception?
Appellant’s Brief at 6.
In Appellant’s first issue, he asserts that the trial court erred in denying
his motion to exclude Child’s testimony because that testimony was tainted.
Appellant’s Brief at 20. After review, we disagree.
It is well settled that the admissibility of evidence is left to the discretion
of the trial court, and the trial court’s determination will not be reversed
absent an abuse of that discretion. Commonwealth v. Leaner, 202 A.3d
749, 773 (Pa. Super. 2019) (citation omitted). Additionally, a witness’s
competency to testify is within the trial court’s discretion. Commonwealth
v. Davis, 939 A.2d 905, 906-907 (Pa. Super. 2007).
As a general rule, every person is presumed competent to be a witness.
Commonwealth v. Adams-Smith, 209 A.3d 1011, 1021 (Pa. Super. 2019)
(quoting Commonwealth v. Delbridge, 855 A.2d 27, 39 (Pa. 2003)). As
noted above, Appellant avers that Child’s testimony was tainted. Appellant’s
Brief at 20. Taint is defined as “the implantation of false memories or
distortion of actual memories through improper and suggestive interview
techniques[.]” Delbridge, 855 A.2d at 30. “[T]aint is a legitimate question
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for examination in cases involving complaints of sexual abuse made by young
children.” Id. at 39.
This Court has also explained the distinction between credibility and
competency and the burden on a party alleging tainted recall:
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 ... what
the witness says is true; this is a question for the fact
finder. An allegation that the child witness’ memory of
the event has been tainted raises a red flag regarding
competency, not credibility. Where it can be
demonstrated that a witness’ 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.
[Delbridge,] 855 A.2d at 40 (emphasis added). Furthermore,
In order to trigger an investigation of competency on
the issue of taint, the moving party must show some
evidence of taint. Once some evidence of taint is
presented, the competency hearing must be
expanded to explore this specific question. During the
hearing the party alleging taint bears the burden of
production of evidence of taint and the burden of
persuasion to show taint by clear and convincing
evidence. Pennsylvania has always maintained that
since competency is the presumption, the moving
party must carry the burden of overcoming that
presumption.
Adams-Smith, 209 A.3d at 1021 (quoting Delbridge, 855 A.2d at 40)
(emphasis added).
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The trial court addressed Appellant’s first issue as follows:
Instantly, [Appellant] alleged that [K.C] spoke to [Child] on
at least two occasions prior to [Child’s] interview at Mission Kids,
thereby tainting [Child’s] memory of the incident. N.T., Motion to
Exclude Testimony Based Upon Taint, Apr. 4, 2017 at 9-17.
[Appellant] also alleged that [K.C.’s] own childhood experience
influenced the way in which she questioned [Child].4 Id. at 9. The
[c]ourt allowed [Appellant] to present testimony in an attempt to
meet his initial burden to show some evidence of taint. The [c]ourt
also watched the video of [Child’s] interview by a forensic
interviewer at Mission Kids.
4 The parties stipulated that when she was a child,
K.C. was groped by an older child in her
neighborhood. Id. at 84.
K.C. testified at the hearing that she spoke to [Child] on two
occasions before the Mission Kids interview. Id. at 54. She testified
that on the day of the incident, December 15, 2015, she spoke to
[Child] upstairs in the master bedroom. Id. at 46. She asked
[Child] questions in a calm manner, as if everything was normal.
Id. at 48-49. K.C. did not tell [Child] what she had witnessed when
she walked down the basement stairs, she only asked [Child] for
information about what happened. Id. at 49. [Child] hunched up
and would not make eye contact with [K.C.]. Id. [Child’s]
demeanor remained more serious than normal throughout the
conversation. Id. at 49-50. K.C. asked [Child] what happened with
[Appellant] in the basement. Id. [Child] indicated that [Child was]
sitting on [Appellant’s] lap. Id. at 55. When asked where on his
lap, [Child] indicated that [Child was] sitting on [Appellant’s] penis
and that [Appellant] moved [Child] up and down on his penis. Id.
K.C. asked [Child] if [Appellant] ever said anything when this was
happening and [Child] indicated that one time [Child] asked
[Appellant] why and he said because it feels good. Id. [Child] told
K.C. that this happened on more than one occasion, “three or four
times.” Id. K.C. thanked [Child] for speaking with her and they
went downstairs to watch television. Id. At the end of the
conversation [Child] and K.C. returned to the living room area
where the other two children were watching television. Id. at 52.
K.C. and the children ultimately left the home that evening. Id.
On December 16, 2015, K.C. gave a statement to the State Police.
Exhibit DS-1.
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On the morning of December 19, 2015, [Child] climbed in
bed with K.C. Id. at 53. K.C. asked Child if they could talk about
what happened, and [Child] said no, indicating that their stuffed
animal would hear them. Id. at 56-57. They made earmuffs out of
a sock for the stuffed animal. Id. at 57. K.C. asked [Child] if
[Child] sat on [Appellant’s] lap in that manner by choice. Id.
[Child] said no, that [Appellant] asked [Child] to come sit on him.
Id. [Child] demonstrated how [Appellant] motions for [Child] to
come over and sit on his lap. Id. K.C. next asked [Child] if it was
like when she and [Child] wrestle and [Child] said it was nothing
like that. Id. at 57-58. She again asked [Child] if [Appellant] said
anything when this was happening, [Child] indicated that it is
mostly peace and quiet when it happens but that one time he did
say he did it because it feels good. Id. at 58. The conversation
ended at this point. Id. K.C. memorialized the conversation in the
notes application on her phone and also texted it to herself. Id.;
Exhibits CS-2, CS-3.
Joanna Crocetto, the forensic interviewer from Mission Kids
also testified regarding the protocol that she follows when
conducting a child interview. Mission Kids interviews are designed
to minimize the number of times a child has to recount an incident
of abuse. Id. at 27. At the time of the interview, a case worker
from the office of children and youth, a detective from the
Montgomery County Detective bureau, a detective from the
jurisdiction in which the alleged abuse occurred, and an Assistant
District Attorney [were] all present for the interview and
observe[d] the interview in real time via video feed. Id. at 28. Ms.
Crocetto spoke to K.C. to obtain her consent for the interview, but
pursuant to Mission Kids policy, she did not obtain any information
concerning the allegations from K.C. Id. at 31. Once obtaining
consent from K.C., Ms. Crocetto interviewed [Child] and employed
Mission Kids protocol for questioning which included, inter alia,
rapport building with [Child], review of the rules for the interview,
review of the difference between a truth and a lie, and basic
questions about family before transitioning into questions about
the allegations of abuse. Id. at 33-34. The interview itself is
conducted by asking the child open-ended questions. Id. at 34.
Ms. Crocetto also stated[:]
from my experience of interviewing at Mission Kids, ...
with most kids, they talk about who they’ve talked
about it with when I ask questions around who have
you talked about this with in terms of who did you tell
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or did you tell anyone else. They may also actually
talk about a certain part of their narrative and say that
someone told them to say that.
Id. at 36. [Child] did not make any such statements in [the]
videotaped interview. Regarding the video, the [c]ourt noted that
it was clear that [Child] had spoken to [K.C.] prior to the
interview, but that there was no indication that [Child] had been
coached in any way. Id. at 109-110.
Based on the testimony of K.C., K.C.’s statement to police,
the testimony [of] Joanna Crocetto (Mission Kids Forensic
Interviewer), and the [c]ourt’s review of the actual interview of
[Child], the [c]ourt found that [Appellant] did not meet his burden
of establishing taint by clear and convincing evidence, as would
warrant the expansion of the competency hearing to question
[Child] about taint.5 The testimony elicited and the video clearly
show the consistency in [Child’s] story and did not establish any
evidence of taint. Therefore, this [c]ourt did not err in denying
[Appellant’s] motion to exclude [Child’s] testimony because of
taint.
5 A competency hearing was conducted prior to
[Child’s] testimony at trial. N.T., Apr. 6, 2017 at 125-
140.
Trial Court Opinion, 11/14/18, at 7-10.
We agree with the trial court’s conclusion. Joanna Crocetto, the forensic
interviewer from Mission Kids, testified concerning her interview with Child
and the method she employs when interviewing a child generally. N.T.,
4/4/17, at 32-38. Ms. Crocetto discussed her use of open-ended questions to
allow for accurate answers. Id. at 34. The open-ended questions enabled
Child to “own” the answers and to provide detail. Id. Additionally, K.C.
testified that although she discussed with Child the events that led to criminal
charges against Appellant, she did not provide Child with an opinion. Id. at
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49. Rather, K.C. testified that she asked Child what occurred in the basement,
an open-ended question, and Child provided the details concerning the times
Appellant touched her in a sexual manner. Id. at 55.
The trial court also conducted a competency hearing outside the
presence of the jury. N.T., 4/6/17, at 127-140. The Assistant District
Attorney, Appellant’s trial counsel, and the trial court asked Child questions.
Child explained the difference between the truth and a lie and knew it was
important to tell the truth. Id. at 130-132.
The trial court concluded that Child was consistent when recounting
Appellant’s assault, Child was not coached, and there was no taint. Trial Court
Opinion, 11/14/18, at 10. After review, we agree, and we conclude there was
no abuse of discretion in the trial court’s denial of Appellant’s motion to
exclude Child’s testimony based on taint.
Next, Appellant avers that the trial court abused its discretion in allowing
K.C. to testify about out-of-court statements made by Child. Appellant’s Brief
at 23. Specifically, Appellant asserts that K.C.’s testimony regarding Child’s
statements did not meet the requirements of the tender-years exception to
the rule against hearsay because there were insufficient indicia of reliability.
Id. at 23-24. We conclude that Appellant is entitled to no relief.
At the outset, we reiterate that the admissibility of evidence is left to
the discretion of the trial court, and the trial court’s determination will not be
disturbed absent an abuse of discretion. Leaner, 202 A.3d at 773. Hearsay
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is defined as “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers into evidence
to prove the truth of the matter asserted in the statement.” Commonwealth
v. Golphin, 161 A.3d 1009, 1022-1023 (Pa. Super. 2017) (quoting Pa.R.E.
801(c)). “Hearsay is not admissible except as provided by the Pennsylvania
Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme
Court, or by statute.” Id. at 1023 (quoting Pa.R.E. 802).
However, 42 Pa.C.S. § 5985.1 created an exception to the prohibition
on hearsay under limited circumstances. At the time of Appellant’s trial,
Section 5985.1 provided 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,[1] describing any of the offenses
enumerated in 18 Pa.C.S. [Chapters 25, 27, 29, 31, 35, and 37],
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.
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1We reiterate that Child was six year old at the time of the assault. Trial
Court Opinion, 11/14/18, at 1; Criminal Complaint, 2/5/16, at unnumbered 4.
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Golphin, 161 A.3d at 1023 (quoting 42 Pa.C.S. § 5985.1(a)).2
“A statement admitted under the tender years exception must possess
sufficient indicia of reliability, as determined from the time, content, and
circumstances of its making.” Golphin, 161 A.3d at 1023 (citation omitted).
The Tender Years Act concerns the admissibility of
out-of-court statements made by a child victim or
witness to third parties. The admissibility of this type
of hearsay is determined by assessing the
particularized guarantees of trustworthiness
surrounding the circumstances under which the
statements were uttered to the person who is
testifying. To determine whether a child’s out-of-court
statements are admissible under the Tender Years
Act, a trial court must assess the relevancy of the
statements and their reliability in accordance with the
test enunciated in Idaho v. Wright, 497 U.S. 805,
110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Although the
test is not exclusive, the most obvious factors to be
considered include the spontaneity of 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.
Id. (quoting Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014)).
In the case at bar, the trial court addressed Appellant’s claim of error
and discussed the reliability of Child’s statements as follows:
In determining whether a child’s statement is admissible
under the [tender years exception], our Superior Court has stated
that “indicia of reliability include: the spontaneity of 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. Barnett, 50
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2 Section 5985.1 was amended effective August 27, 2019. The amendments
renumbered the subsections and clauses in Section 5985.1 and expanded the
list of criminal offenses a child-witness could describe under this exception.
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A.[3]d 176, 183-184 (Pa. Super. 2012) (internal quotation marks
and citations omitted). Thus, assuming an examination of the
proposed adult witnesses confirms the reliability of the minor’s
statements, they are admissible under the Tender Years hearsay
exception.
Instantly, the Commonwealth gave notice of its intention to
introduce hearsay statements of [Child], as required by § 5985.1.
Having previously heard K.C.’s testimony at the taint hearing, the
Court allowed K.C. to testify to what [Child] told her moments
after the incident, when she questioned [Child] in the bedroom as
outlined above. N.T., Apr. 6, 2017 at 43. The near
contemporaneous recounting of the story to K.C. on December 15,
2018, the consistency of [Child’s] story when speaking to [K.C.]
again on December 19, 20156 and in the Mission Kids interview all
demonstrate indicia of reliability. Furthermore, the Court found
[Child] competent to testify[,] and [Child] ultimately testified at
trial in a manner totally consistent with the statements K.C.
indicated [Child] made and consistent with the Mission Kids
interview. Therefore, the [c]ourt did not err in admitting [Child’s]
hearsay statements.
6Testimony regarding K.C.’s second conversation with
[Child] was elicited at the hearing on [Appellant’s]
Motion to Exclude based on Taint, but the jury did not
hear testimony regarding this conversation. N.T. Apr.
6, 2017 at 66-69.
Trial Court Opinion, 11/14/18, at 11-12.
After review, we discern no abuse of discretion in the trial court allowing
K.C. to testify regarding statements made by Child.3 As discussed above, the
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3The record reveals that Appellant’s counsel objected to K.C. testifying about
what Child said to K.C. following the assault in the basement. N.T., 4/6/17,
at 38. Thus, Appellant’s objection to that portion of K.C.’s testimony was
preserved. See Commonwealth v. Guilford, 861 A.2d 365, 370-372 (Pa.
Super. 2004) (in order to preserve an issue for appellate review, a party must
make a timely and specific objection at trial, otherwise the issue is waived).
However, we agree with the trial court that any challenge Appellant had
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trial court found that Child’s statements were made close in time to the events
at issue, Child recalled the events consistently, and Child’s statements were
not coached. Trial Court Opinion, 11/14/18, at 10. We agree with the trial
court that there were sufficient indicia of reliability to permit K.C.’s testimony
concerning Child’s statements under the tender years exception to the rule
against hearsay. Accordingly, Appellant’s claim fails.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/19
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regarding statements Child made during the interview at Mission Kids was
waived. Trial Court Opinion, 11/14/18, at 10. Appellant’s counsel did not
object when the video of Ms. Crocetto interviewing Child at Mission Kids was
played for the jury. N.T., 4/6/17, at 181.
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