Com. v. Barbour, B. ( 2023 )

J-A09015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRIAN KEITH BARBOUR : No. 1346 MDA 2022
Appeal from the Order Entered September 14, 2022
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000055-2022
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED: APRIL 11, 2023
The Commonwealth of Pennsylvania appeals from the order filed
September 14, 2022, which, based upon a finding of some evidence of taint,
granted leave for Brian Keith Barbour (“Defendant”) to request appointment
of an expert to evaluate the juvenile male victim in this case, B.D.J., and
prepare a report. The order further provided that upon review of the expert
report, the trial court would issue a subsequent order to schedule a
competency hearing for the victim. We affirm the order’s finding of taint but
otherwise vacate the order and remand for proceedings consistent with this
memorandum.
Defendant was charged by criminal information with one count each of
corruption of minors, indecent assault of a person less than thirteen years of
age, and indecent assault of a person less than sixteen years of age, for
alleged incidents involving B.D.J., between October 2018 and October 2020.
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Defendant filed a pre-trial motion for taint examination and witness
competency for B.D.J. Regarding Defendant’s allegations of taint, he averred
that (1) B.D.J. answered questions in his forensic interviews in a way that
indicated that B.D.J.’s mother (“Mother”) had advised him that his answers
during the interviews would impact her custodial status; (2) B.D.J. did not
disclose the allegations against Defendant during the first interview, despite
questions designed to elicit such responses; (3) when Mother learned that
B.D.J. had not disclosed abuse by Defendant during the course of the first
interview, she told police that B.D.J. had not been aware he was supposed to
discuss Defendant during that interview and she thereafter requested and was
granted a second interview for B.D.J. to discuss the allegations against
Defendant; (4) the second interview was conducted one month after the first
interview by a different interviewer; and (5) as a result of the two interviews,
B.D.J. was subjected to repeated questions that “led him to form expectations
regarding the expected answers[.]” Motion for Taint Examination, 4/19/22,
at unnumbered 5-9.
On July 18, 2022, the trial court held a hearing on the motion to allow
Defendant the opportunity to establish some evidence of taint. After the
hearing, the court took the matter under advisement and the parties
submitted briefs in support of their respective positions. Besides disagreeing
about the purported evidence of taint, the parties also diverged as to the
procedure the court should follow if it found some evidence of taint. Defendant
sought a psychiatric evaluation of B.D.J. prior to any competency hearing,
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whereas the Commonwealth insisted a competency hearing should be held
before conducting any evaluation. Compare Defendant’s Written Argument
in Support, 8/17/22, at 12-13 with Commonwealth’s Brief in Opposition,
8/22/22, at unnumbered 4-5. Ultimately, the trial court found Defendant met
his burden of producing some evidence of taint and agreed with Defendant’s
proposed procedure. Therefore, the court granted leave for Defendant to
request appointment of a psychiatric expert to conduct an examination of
B.D.J. and author a report for use at a future competency hearing.
The Commonwealth timely filed a notice of appeal.1 Both the
Commonwealth and the trial court have complied with Pa.R.A.P. 1925. The
Commonwealth presents the following issues for our review:
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1 Since the Commonwealth’s notice of appeal did not include certification
pursuant to Pa.R.A.P. 311(d), this Court issued an order directing the
Commonwealth to show cause as to why the instant appeal should not be
quashed as interlocutory and premature. See Order, 11/22/22. In response,
the Commonwealth clarified that it was appealing pursuant to the collateral
order doctrine set forth in Pa.R.A.P. 313. This Court discharged the rule to
show cause order and referred the issue to the merits panel.
In considering this issue, we note that the underlying order granted Defendant
“leave to submit an appropriate filing requesting appointment of an expert to
conduct an evaluation of the witness and prepare an expert report.” Order,
9/14/22. While written permissively, the order granted Defendant’s request
to have an expert appointed to conduct an evaluation of B.D.J. prior to a
competency hearing. This Court has held that a “ruling requiring the victim
to undergo a psychiatric examination” is subject to review as a collateral order.
Commonwealth v. Alston, 864 A.2d 539, 563-64 (Pa.Super. 2004) (en
banc) (finding that (1) such a “ruling clearly is separable from the main cause
of action because the propriety of the order may be addressed without analysis
of the merits of the underlying criminal action[;]” (2) “important constitutional
privacy rights of the child victim are being invoked, the matter impacts cases
(Footnote Continued Next Page)
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A. Whether the [trial] court erred when it found [Defendant] had
[met] his burden of producing some evidence of taint and
granted [Defendant’s] motion to require a juvenile victim to
undergo a psychiatric evaluation?
B. Whether the [trial] court erred when it granted [Defendant’s]
motion to require a juvenile victim to undergo a psychiatric
evaluation without observing or examining the juvenile?
Commonwealth’s brief at 4 (capitalization altered).
We begin with the Commonwealth’s first issue: whether the trial court
erred in finding Defendant had met his burden of establishing some evidence
of taint. See Commonwealth’s brief at 2. Our Supreme Court has held that
“[a]n allegation that the witness’s memory of the event has been tainted
raises a red flag regarding competency,” and thus “a competency hearing is
the appropriate venue to explore allegations of taint.” Commonwealth v.
Delbridge, 855 A.2d 27, 40 (Pa. 2003) (“Delbridge I”). “The determination
of a witness’s competency rests within the sound discretion of the trial court.”
Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa.Super. 2006) (citation
omitted). We will not disturb a court’s competency ruling absent a clear abuse
of discretion. Id. Given the trial court’s discretion, we have observed that
“our standard of review of rulings on the competency of witnesses is very
limited indeed.” Id. (cleaned up).
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beyond the one at issue, and constitutional-based privacy rights are too
important to be denied review[;]” and (3) “if the court’s order cannot be
reviewed before the examination is conducted, the claim will be lost forever”).
As in Alston, the September 14, 2022 order is subject to review under the
collateral order exception and this matter is properly before this Court.
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Turning to the trial court’s preliminary finding of some evidence of taint,
our Supreme Court has set forth the following general legal standard:
The core belief underlying the theory of taint is that a child’s
memory is peculiarly susceptible to suggestibility so that when
called to testify a child may have difficulty distinguishing fact from
fantasy. Taint is the implantation of false memories or the
distortion of real memories caused by interview techniques of law
enforcement, social service personnel, and other interested
adults, that are so unduly suggestive and coercive as to infect the
memory of the child, rendering that child incompetent to testify.
Commonwealth v. Delbridge, 859 A.2d 1254, 1256 (Pa. 2004) (plurality)
(“Delbridge II”) (cleaned up). In considering whether a defendant has
presented some evidence of taint, “we look to the totality of the circumstances
surrounding the revelation of the allegations of child sexual abuse.”
Delbridge I, supra at 41.
Some of the factors that are relevant in this analysis are: (1) the
age of the child; (2) the existence of a motive hostile to the
defendant on the part of the child’s primary custodian; (3) the
possibility that the child’s primary custodian is unusually likely to
read abuse into normal interaction; (4) whether the child was
subjected to repeated interviews by various adults in positions of
authority; (5) whether an interested adult was present during the
course of any interviews; and (6) the existence of independent
evidence regarding the interview techniques employed.
Judd, supra at 1229 (citation omitted).
At the hearing, Defendant presented testimony from two forensic
interviewers at the York County Children’s Advocacy Center (“CAC”) and two
Pennsylvania State Police (“PSP”) troopers involved in the investigation of this
case. Additionally, Defendant played a video recording of B.D.J.’s first forensic
interview. Based on this evidence, the following was developed.
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Mother made the initial report of alleged abuse perpetrated against
B.D.J. by two individuals: B.D.J.’s stepfather and Defendant. 2 PSP Trooper
Eric Randolph Gary Majors, the lead investigator, contacted Mother, arranged
for B.D.J. to be interviewed at the CAC, and explained to Mother the interview
process. See N.T. Motion Hearing, 7/18/22, at 65-66. In doing so, he testified
that he gave no indication that a separate interview would be conducted for
each alleged perpetrator. Id. at 69.
During the first interview, which was conducted by Kristina Taylor Porter
on March 26, 2021, B.D.J. disclosed one episode of abuse implicating his
stepfather. See id. at 12; Exhibit 1 (Video Recording CAC Interview,
3/26/21). Ms. Porter, as was custom, asked B.D.J. several questions meant
to screen for additional perpetrators. Specifically, she asked the following:
- Has anything like this happened with anyone else?
- Has anybody else ever made you feel really weird like this?
- Has anybody ever tried to touch your area?[3]
- Has anybody ever touched your area?
- Has anybody ever showed you their area that you didn’t want
to see?
- Has anything else ever happened to you that we haven’t talked
about today that made you feel uncomfortable or weird?
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2 The relationship between B.D.J. and Defendant is unclear from the certified
record.
3 B.D.J. used the term “area” to refer to his genitals.
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- Has anybody ever shown you that part of their body?
- Have you ever seen that part on somebody else’s body?
- Has anybody ever made you touch that part on their body?
- Has anybody else ever tried to touch that part on your body?
Exhibit 1 (Video Recording CAC Interview, 3/26/21). B.D.J. answered these
questions in the negative and did not disclose abuse from Defendant or any
other individuals. Id.; see also, e.g., N.T. Motion Hearing, 7/18/22, at 12,
14, 21.
Turning back to the beginning of the interview, Ms. Porter asked then-
eleven-year-old B.D.J. questions about the difference between the truth and
a lie. See Exhibit 1 (Video Recording CAC Interview, 3/26/21). Additionally,
in discussing background questions, B.D.J. revealed that his four younger
brothers lived in a foster home, while he and his two older sisters lived with
Mother. Id. When asked who told him about coming in that day and why,
B.D.J. stated that Mother told him and she said that “she wanted me home,
she didn’t want me to get sent away, so she wanted me to talk to y’all.” Id.
Finally, Ms. Porter did not ask any questions regarding potential outside
influence during the interview. Id. at 22.
PSP Trooper Timothy Reynolds, the local law enforcement officer who
attended the first interview, believed at the conclusion of the interview that
no additional interviews were necessary. See id. at 56. Nonetheless, as
noted, Mother later contacted the PSP troopers to request a second interview
because she claimed B.D.J. had been unaware he was supposed to discuss the
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allegations of abuse against Defendant at the first interview. Id. at 57.
Ultimately, Clara Roberti conducted a second forensic interview of B.D.J. on
April 26, 2021. Ms. Roberti testified that during this second interview B.D.J.
disclosed abuse allegedly perpetrated by Defendant.4 Id. at 40-41, 58. She
further testified that she did not ask B.D.J. any questions pertaining to
potential outside influence during this second interview. Id. at 45.
The trial court offered the following explanation in support of its finding
that Defendant had met his burden of producing some evidence of taint:
By all accounts, Mother was provided with information as to the
process for the interview and was provided no information which
should have led her to believe more than one interview would take
place. [B.D.J.] told the first interviewer that [Mother] said she
didn’t want him sent away so he had to talk to someone that day.
This evidences some level of preparation or guidance from Mother
prior to the first interview. Given the testimony that Mother was
informed of the process and Mother discussed the interview with
[B.D.J.] ahead of time, it is illogical that [B.D.J.] went in thinking
he was to only discuss one perpetrator, as there is no basis for
this understanding. Additionally, there was significant testimony
as to the open-ended questions asked to the child and numerous
opportunities throughout the interview to talk about the
Defendant. Although both forensic interviewers testified that a
second interview is not held at the request of the party, there is a
strong inference that in an indirect way the second interview was
held because of Mother’s request to Trooper Reynolds. [B.D.J.]
came to the second interview fully prepared to talk about
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4 At the hearing, Defendant attempted to admit a video recording of the
second interview as Exhibit 2, but the Commonwealth objected based on lack
of foundation. The trial court granted leave for the parties to reach a post-
hearing stipulation as to the admission of Exhibit 2. See N.T. Motion Hearing,
7/18/22, at 42-43, 47-48, 77; see also Order, 7/21/22. The video recording
of the second interview is not contained within the certified record. Upon
informal inquiry, we learned that no such stipulation was ever reached and
the video recording was consequently not admitted into evidence.
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Defendant and was not asked any screening questions which
would provide insight as to why he never mentioned Defendant in
the first interview but was prepared and able and willing to discuss
him in the second interview.
Finally, the reasons Ms. Roberti stated for conducting a
second interview; namely, new information received, subject
matter that was not explored, or a child that was unable to
complete the first interview due to physical or mental health
reasons, were not applicable in this matter.
In considering all testimony, we find some evidence of taint
exists.
Trial Court Opinion, 11/18/22, at 9-10.
On appeal, the Commonwealth contends that the trial court’s inferences
are “not supported by the record, and at times disregards the testimony that
was provided at the hearing.” Commonwealth’s brief at 17-18. This
proclamation is unsubstantiated, as the Commonwealth fails to cite to specific
testimony in its argument that the trial court allegedly misinterpreted or
ignored. Moreover, our review of the record reveals the opposite to be true.
In fact, we conclude that the record wholly supports the trial court’s
inferences. Considering the totality of the circumstances surrounding B.D.J.’s
allegations of abuse against Defendant and the evidence presented at the
motion hearing, we discern no abuse of discretion on the trial court’s part in
finding that Defendant met his threshold burden of producing some evidence
of taint. Accordingly, the Commonwealth is not entitled to relief on this claim.
We now turn to the Commonwealth’s second issue on appeal, which
addresses the procedure to be followed once the court makes a finding of
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some evidence of taint. Specifically, the Commonwealth “avers that the [trial]
court erred when it granted [Defendant’s] motion to require a juvenile victim
to undergo a psychiatric evaluation before observing or examining the
juvenile.” Commonwealth’s brief at 18 (capitalization altered). In support,
the Commonwealth relies on this Court’s decision in Commonwealth v.
Alston, 864 A.2d 539 (Pa.Super. 2004) (en banc). Defendant, for his part,
maintains that the court followed the correct procedure in its order because
the court had sufficient opportunity to observe B.D.J. through the evidence
presented at the motion hearing. See Defendant’s brief at 23-24.
On appeal, the trial court agrees with the Commonwealth that it erred,
and that once it determined “Defendant met his burden of showing some
evidence o[f] taint, the next step is for the court to schedule a competency
hearing to further explore this claim.” Trial Court Opinion, 11/18/22, at 11.
In that vein, the trial court requests that we vacate the portion of the order
granting leave for Defendant to file a motion for the appointment of an expert
to conduct an evaluation and report prior to a competency hearing, and
instead remand for a competency hearing to further explore the claim of taint.
See id. at 11-12.
In considering this issue, we are guided by this Court’s decision in
Alston. Therein, the Commonwealth appealed, inter alia, the court’s ruling
“that the victim in this sexual assault case must undergo a psychiatric
examination to assist in assessing her competency.” Id. at 542. Based on
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the victim’s prior, potentially false allegations of sexual abuse against
individuals other than Alston, the court found “a searching inquiry into the
victim’s competency, including a psychiatric evaluation[,]” was warranted.
Id. The court expressly declined to interview the victim or make a
competency determination prior to ordering the psychological evaluation
because it believed the evaluation was necessary for it to assess the
competency of the victim. See id. at 548.
In addressing this issue, this Court observed that when a trial court is
tasked with determining the competency of a child, it may base that decision
in part on expert testimony:
While the court may consider such testimony, the question of
whether it may order a psychiatric examination against a person’s
wishes is an entirely distinct inquiry. The privacy implications of
a compelled psychiatric examination are significant. Indeed,
where the record fails to establish that there is a question as to
the victim’s competency, we refuse to sanction any intrusion into
the victim’s existing psychological records or any cross-
examination as to psychiatric treatment. See Commonwealth
v. Smith, 606 A.2d 939 (Pa.Super. 1992).
Id. at 549 (citation altered). With this in mind, we found that “[t]he order in
question is much more intrusive as it compels a psychiatric examination and
not merely permits questioning concerning existing treatment.” Id.
Next, we observed that a plurality of our Supreme Court, in
Commonwealth v. Garcia, 387 A.2d 46 (Pa. 1978) (plurality), “concluded
that a psychiatric examination of a Commonwealth witness regarding
competency may be ordered if a need for the examination is demonstrated.”
Alston, supra at 549. However, we found that the record in Alston did not
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demonstrate need for such an examination because the trial court ordered the
psychological examination of the victim without interviewing her, and ordered
the examination based solely upon records of prior allegations of abuse. See
id. In so holding, we reiterated that “[w]hile trial courts regularly make
competency determinations, a court-ordered psychological examination
should never be the starting point for such a determination.” Id. As the trial
court in Alston neither observed nor examined the victim, we concluded that
“the order directing the involuntary examination cannot be sustained on the
face of the existing record.” Id. (citation omitted).
Although acknowledging that further inquiry was warranted in the case
based on the victim’s prior unfounded allegations, this Court in Alston found
that, “in the absence of some affirmative indication that [the victim did] indeed
have a problem distinguishing fantasy from reality, the examination was
ordered prematurely.” Id. at 550. As to the specifics of that further inquiry,
this Court relied on Delbridge I and Delbridge II. We noted that in
Delbridge I, our Supreme Court “held that when a defendant presents some
evidence of taint, that issue should be explored at a competency hearing, and
it remanded for such a hearing[.]” Alston, supra at 550. Regarding
Delbridge II, the Alston Court found our Supreme Court’s plurality decision,
which was rendered after the competency hearing, to also be insightful:
At the hearing, the children’s testimony established their
competency, and the defendant failed to prove the existence of
taint either through cross-examination or the testimony of other
witnesses. The Commonwealth and the defense presented
diametrically opposed expert testimony on whether the victims’
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testimony was tainted. Three justices concluded that since the
defendant had failed to demonstrate the existence of taint as a
predicate matter, the expert testimony was unnecessary. It left
open the question of whether expert testimony would be
appropriate if the possibility of taint is raised in the record and if
the trial court determines that expert testimony would aid it in
assessing the impact of the taint on the question of competency.
Applying the rationale of the Delbridge decisions to the case
under consideration, we conclude the following. [Alston] has
presented sufficient evidence to raise a question concerning [the
victim’s] competency. The prior allegations of abuse, which
appear to be false, raise concerns about [the victim’s] ability to
tell the truth, and a hearing to explore competency certainly is
warranted. However, [Delbridge, II] reinforces our conclusion
that a psychiatric examination was ordered prematurely. If the
competency hearing fails to reveal the existence of valid
competency concerns, expert testimony would be unnecessary.
Hence, we remand for further development of the facts relating to
[the victim’s] competency.
Alston, supra at 550–51.
Here, Defendant assails the Commonwealth’s reliance on Alston,
claiming it is factually distinguishable. Defendant argues that, unlike in
Alston, he established a compelling need for the psychological examination
at the motion hearing. Moreover, he contends that the trial court had the
opportunity to observe B.D.J. through the two forensic interviews. See
Defendant’s brief at 23. Specifically, he avers that the trial court watched the
two forensic interviews, which included the following:
[E]ach interviewer conducted competency questioning with
[B.D.J.], discussing the difference between a truth and lie and
ensuring he was aware of the difference. The trial court then
observed [B.D.J.] promise to tell the truth to all questions asked
by both interviewers. However, the trial court observed that he
then proceeded to give drastically different answers to the same
questions in the two different interviews, claiming to be telling the
truth in both.
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Id. at 24.
Upon review, we deduce that Defendant’s contentions are plainly belied
by the record.5 While it is true that the two interviewers testified to some of
the contents of their interviews of B.D.J., Defendant only played the video
recording of the first forensic interview at the hearing. As to the second
interview, Defendant initially sought to introduce the video recording of it as
Exhibit 2 as follows: “I just want to enter your video into evidence for the
[c]ourt. I want to see if you can authenticate it for me. I’m going to pull it
up real quickly.” N.T. Motion Hearing, 7/18/22, at 42-43. Instead of
displaying the video, however, counsel for Defendant continued to ask Ms.
Roberti questions about the interview. Defendant did not return to the video
during direct examination. After the Commonwealth conducted its cross-
examination, the following exchange occurred:
[Defendant’s Attorney]: . . . [W]e are having connective
issues, but I do have a copy of this
CAC interview on April 26th, and I
would ask to admit that into
evidence. It was provided to
defense by the Commonwealth in
the same electronic format.
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5 Indeed, in attacking the Commonwealth’s argument, Defendant claims that
“[t]he Commonwealth has apparently forgotten that the July 18, 2022
[h]earing, where the trial court observed [B.D.J.] in two separate interviews,
has already occurred and that the trial court has already made a threshold
competency determination regarding taint.” Defendant’s brief at 24.
Apparently, Defendant has also forgotten the July 18, 2022 hearing.
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[Commonwealth]: I think defense still has to lay the
foundation, Your Honor, to admit it
into evidence.
The Court: There can’t be a stipulation? If you
have the opportunity to review it,
could there be a post-hearing
stipulation?
[Commonwealth]: Potentially.
The Court: Let’s move toward that.
[Defendant’s Attorney]: I can provide the disk to the
Commonwealth, if he will review it.
Thank you.
Id. at 47-48.
At the conclusion of the hearing, the trial court noted the outstanding
need for a stipulation regarding proposed Exhibit 2 and entered an order to
that effect. See id. at 77; Order, 7/21/22. As noted supra, this Court’s
informal inquiry confirmed that no such stipulation was ever reached and the
video recording of the second interview was not admitted as an exhibit.
Indeed, there is no indication in the record that the trial court ever viewed the
recording of the second interview. Cf. N.T. Motion Hearing, 7/18/22, at 15-
20 (detailing the admission and playing of Exhibit 1, the video recording of
the first forensic interview).
Based on the court’s finding of some evidence of taint, further inquiry
into B.D.J.’s competency is warranted. However, upon review, we conclude
that the court’s viewing of a single forty-five-minute forensic interview of
B.D.J. is not an adequate substitute for interviewing or observing the child
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first-hand. Further, the threshold hearing to determine whether Defendant
had established some evidence of taint did not equate to a full competency
hearing. As in Alston, the trial court here ordered a psychological
examination of B.D.J. without first conducting an interview or examining
B.D.J. Such action, as conceded by the trial court, was premature. The proper
procedure here, as in Alston, is for the trial court to first conduct a
competency hearing and then, if it deems it necessary, grant Defendant leave
to request appointment of an expert to conduct a psychological evaluation of
B.D.J. and to prepare a report. See Alston, supra at 550-51.
Based on the foregoing, we affirm the trial court’s finding of some
evidence of taint but vacate the remainder of the order granting Defendant
leave to request appointment of an expert to evaluate B.D.J. and prepare a
report for use at a future competency hearing. Rather, we remand for the
trial court to first conduct a competency hearing and determine the necessity
of such an evaluation.
Order affirmed in part and vacated in part. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2023
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