Com. v. Copenhaver, J.

2024 Pa. Super. 96

• Court: Superior Court of Pennsylvania
• Decided: May 13, 2024
• Docket: 854 MDA 2022
• Status: Published

Opinion

J-S06013-23

2024 PA Super 96

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA ROBERT COPENHAVER : : Appellant : No. 854 MDA 2022

Appeal from the Judgment of Sentence Entered April 19, 2022 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001075-2021

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.: FILED: MAY 13, 2024

Appellant, Joshua Robert Copenhaver, appeals from his judgment of

sentence of fifteen to thirty years’ imprisonment for multiple sexual offenses

against his daughters, K.G. and C.C. Counsel for Appellant filed a brief and

an application to withdraw pursuant to Anders v. California, 386 U.S. 738

(1969), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In an

unpublished decision on July 17, 2023, we held that Appellant’s first issue, a

challenge to the sufficiency of the evidence, was frivolous. However, we found

Appellant’s second issue—whether the court properly admitted K.G.’s out-of-

court statement about what C.C. told her under the “tender years” exception

to the hearsay rule embodied in 42 Pa.C.S.A. § 5985.1—was non-frivolous.

Accordingly, we remanded to the trial court for further proceedings on the

tender years issue and denied counsel’s application to withdraw.

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* Former Justice specially assigned to the Superior Court. J-S06013-23

On September 19, 2023, the trial court filed a supplemental opinion that

K.G.’s out-of-court statement was admissible under Section 5985.1. Having

reviewed the record, the trial court’s supplemental opinion, and Appellant’s

brief,1 we conclude that the trial court abused its discretion by admitting

several portions of K.G.’s statement into evidence. Nevertheless, we conclude

that this error was harmless, and therefore, affirm Appellant’s judgment of

sentence.

The criminal information against Appellant alleged that between January

27, 2019 and January 7, 2021, he committed rape of a child, solicitation of

rape of a child, involuntary deviate sexual intercourse (“IDSI”) with a minor,

production of child pornography, solicitation of production of child

pornography, depicting sex acts on a computer, solicitation to depict sex acts

on a computer, indecent assault, corruption of minors and serving liquor or

malt or brewed beverages to minors. Prior to trial, the Commonwealth filed a

motion to admit statements that K.G. and C.C. made on February 11, 2021,

during interviews at the York County Child Advocacy Center (“CAC”). K.G.

and C.C. were eleven and twelve years old, respectively, at the time of these

statements. A CAC forensic interviewer, Lauren Carter, questioned K.G. and

C.C. separately, and both interviews were recorded on closed circuit television.

1 While we do not condone the late filing of Appellant’s brief, we will accept it

for filing, since we do not find that Appellant’s tardiness has impeded appellate review, and the Commonwealth has not claimed prejudice. In fact, the Commonwealth has not filed a brief on this remand issue.

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The Commonwealth asserted that these statements were admissible under

Section 5985.1, the “tender years” exception to the hearsay rule.

On May 14, 2021, the court convened an evidentiary hearing on the

tender years issue. The CAC interviewer was the lone witness. After viewing

a videotape of both interviews, the court admitted the interviewer’s reports of

the interviews into evidence. K.G. told the interviewer that C.C. said the

following to K.G.: (1) Appellant and C.C. went down to the basement, where

Appellant told C.C. to undress; (2) Appellant bribed C.C. to show him her

body; (3) C.C. told her stepmother about Appellant’s acts, but her stepmother

did not believe her. Appellant contended that K.G.’s statement to the

interviewer about what C.C. told K.G. constituted inadmissible hearsay. N.T.,

5/14/21, at 21-23. The Commonwealth responded that K.G.’s statements

were admissible under the tender years exception in Section 5895.1. Id. at

25. The court reasoned that the contents of K.G.’s statement were reliable,

and that her entire videotaped statement was admissible if she were called to

testify during trial. Id. at 26-28. The court also ruled that C.C.’s videotaped

interview was admissible. Id. at 28.

In September 2021, Appellant proceeded to a jury trial in which C.C.

and K.G. testified about Appellant’s offenses. The jury also saw K.G.’s and

C.C.’s videotaped statements to the CAC interviewer. Appellant’s sister-in-

law testified that Appellant became suicidal as a result of the criminal

investigation into his offenses. She testified that Appellant told her that he

purchased a shotgun to take his life or would drive his car off the road.

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Similarly, Appellant’s father-in-law testified that Appellant told him that he

would kill himself. After Appellant’s arrest, his father-in-law discovered a

loaded shotgun under a seat in Appellant’s car. A York County detective

testified that Appellant admitted taking nude photographs of his daughters

but then deleting them from his phone. Appellant also gave a statement to a

detective, Commonwealth Exhibit 16, implying that he had sexual contact with

one of his daughters. At the conclusion of trial, the jury found Appellant guilty

of all charges.

Appellant’s February 6, 2024, brief raises a single issue, “Whether the

trial court erred in granting the Commonwealth’s motion to admit hearsay

through the Tender Years exception where there were questions regarding

double hearsay and relevance?”

Section 5985.1 of our Judicial Code, referred to as the “tender years”

exception to the hearsay rule, provides as follows:

§ 5985.1. Admissibility of certain statements

(a) General rule.

(1) An out-of-court statement made by a child victim or witness, who at the time the statement was made was 122 years of age or younger, describing any of the offenses enumerated in paragraph (2) [including, inter alia, 18 Pa.C.S.A. § 6312(b)], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

2 We note that in 2021, our Legislature amended subsection (a) of this statute

to increase the age limit from 12 to 16 years of age or younger. See Act of June 30, 2021, P.L. 172, No. 29, effective in 60 days.

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(i) 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

(ii) the child either:

(A) testifies at the proceeding; or

(B) is unavailable as a witness.

42 Pa.C.S.A. § 5985.1(a). It is undisputed that Section 5085.1 could be

applied to the hearsay statements of K.G. and C.C., as K.G. qualified as a child

witness and C.C. qualified as a child victim. Statements admitted under this

section are substantive evidence against the defendant. Commonwealth v.

Bond, 190 A.3d 664, 669 n.3 (Pa. Super. 2018). We review the trial court’s

decision to admit evidence under the tender years statute for abuse of

discretion. Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006).

In its supplemental 1925(a) opinion, the trial court concluded that it

properly admitted K.G.’s videotaped interview with the CAC interviewer under

Section 5985.1. Appellant challenges three statements within this interview:

(1) K.G.’s statement to the interviewer that C.C. told K.G. that Appellant

took C.C. down to the basement and told C.C. to undress;

(2) K.G.’s statement to the interviewer that C.C. told K.G. that Appellant

bribed C.C. to show him her body; and

(3) K.G.’s statement to the interviewer that C.C. told K.G. that C.C.

reported Appellant’s conduct to her mother.

Examination of each of these three statements reveals that all contain multiple

layers of hearsay. In addition to K.G.’s statement having to satisfy Section

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5985.1’s exception to the hearsay rule, every other layer of hearsay within

K.G.’s statement had to likewise satisfy an exception to the rule against

hearsay to be admitted as a part of K.G.’s statement. See Commonwealth

v. Laich, 777 A.2d 1057, 1060 (Pa. 2001); Pa.R.E. 805 (hearsay within

hearsay is not excluded if each part of a combined statement conforms with

an exception to the rule); Commonwealth v. Savage, 157 A.3d 519, 524-

25 (Pa. Super. 2017) (where business record that otherwise would be

admissible under exception to hearsay rule contains hearsay, it is double

hearsay, and underlying hearsay must also qualify as hearsay exception for a

court to admit that portion of business record into evidence).

Statement (1) has three layers of hearsay: (a) K.G.’s statement to the

interviewer that (b) C.C. told K.G. that Appellant took C.C. down to the

basement, and (c) Appellant told C.C. to undress. In finding statement (1)

admissible, the trial court only analyzed the first layer of hearsay, K.G.’s

statement to the interviewer under Section 5985.1. The court determined

that K.G. was eleven years old and appeared reliable during her videotaped

statement. As a result, the court ruled that statement (1) was admissible in

its entirety under Section 5985.1. N.T., 5/14/21, at 26-28 (tender years

hearing). The court failed, however, to address whether the other layers of

hearsay in statement (1) satisfied any hearsay exception. This oversight was

significant because the second layer of hearsay, C.C.’s statement to K.G.—the

source of K.G.’s statements to the CAC interviewer—was not shown to be

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admissible under any other exception to the hearsay rule. Nor did C.C.’s

statement to K.G. satisfy Section 5985.1. To be sure, this statement satisfied

some of the elements in Section 5985.1, namely that (1) C.C. was a victim,

(2) C.C. was less than twelve years old at the time of this statement, (3) C.C.

testified at trial, and (4) C.C.’s statement was relevant to the charged offense

of sexual abuse of children.3 On the other hand, the statement did not satisfy

the element of reliability due to the court’s failure to assess whether the “time,

content and circumstances” of C.C.’s statement to K.G. “provide[d] sufficient

indicia of reliability” to be admissible. 42 Pa.C.S.A. § 5985.1(a)(1). While the

court found C.C.’s videotaped statement to the CAC interviewer reliable and

admissible, Supplemental Opinion at 4, it made no similar findings as to the

statements by C.C. to K.G. that are embedded within K.G.’s videotaped

3 Sexual abuse of children is a crime under 18 Pa.C.S.A. § 6312(b), which provides, “Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act commits an offense if such person knows, has reason to know or intends that such act may be photographed . . .” A “prohibited sexual act” includes “lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” The information against Appellant charged him with violating Section 6312(b) by “causing . . . a child under the age of 18 years, namely, C.C., to engage in a prohibited sexual act or in the simulation of such act, namely, posing in various positions while exposing her vagina and breasts, and knew, had reason to know or intended that such act may be photographed . . .” C.C.’s statement to K.G. was relevant to demonstrate that Appellant induced C.C. to engage in a “prohibited sexual act,” specifically lude exhibition of her genitals for the purpose of Appellant’s sexual stimulation or gratification, by taking C.C. to the basement and directing her to undress.

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statement. Because this layer of hearsay was inadmissible, and because this

layer was the source of the first layer of hearsay (K.G.’s statement to the CAC

interviewer), we conclude that the trial court abused its discretion by

permitting statement (1) into evidence.4 Laich, Savage, supra.

For the same reason, statement (2) was inadmissible. Statement (2)

has two layers of hearsay; K.G.’s videotaped statement to the CAC interviewer

and C.C.’s statement to K.G. that Appellant bribed C.C. to show him her body.

The court only analyzed the admissibility of the first layer of hearsay, K.G.’s

statement to the interviewer, but failed to assess the admissibility of the

second layer, C.C.’s statement to K.G. and no demonstration was made that

the statement otherwise qualified under any other hearsay exception. Nor was

it admissible under Section 5985.1 due to the court’s failure to assess the

reliability of C.C.’s statements to K.G. that are embedded within K.G.’s

videotaped statement.

Statement (3) also is inadmissible. It too has two levels of hearsay: (a)

K.G.’s statement to the interviewer that (b) C.C. told K.G. that C.C. reported

Appellant’s conduct to her mother. The court analyzed the admissibility of the

first layer of hearsay, K.G.’s statement to the interviewer, but failed to assess

4 For the sake of completeness, we note that the third layer of hearsay in Statement (1), Appellant’s instruction for C.C. to undress, was admissible under the hearsay exception in Pa.R.E. 803(25) as a statement of a party opponent. Even so, the inadmissibility of the second layer of hearsay made it impossible to admit the third layer into evidence.

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the admissibility of the second layer, C.C.’s statement to K.G. The second

layer failed the test for admissibility for the same reasons as statements (1)

and (2).

Although the court abused its discretion by admitting into evidence the

challenged statements within portions of K.G.’s videotaped interview, we

agree that any purported error was harmless.

The harmless error doctrine “reflects the reality that the accused is

entitled to a fair trial, not a perfect trial.” Commonwealth v. Wilson, 286

A.3d 1288, 1300 (Pa. Super. 2022). Further, harmless error exists if the

record demonstrates, inter alia, that “the erroneously admitted evidence was

merely cumulative of other untainted evidence which was substantially similar

to the erroneously admitted evidence,” or that “the properly admitted and

uncontradicted evidence of guilt was so overwhelming and the prejudicial

effect of the error was so insignificant by comparison that the error could not

have contributed to the verdict.” Id. An error “will be deemed harmless

where the appellate court concludes beyond a reasonable doubt that the error

could not have contributed to the verdict.” Id. at 1300-01. This doctrine

“recognizes the principle that the central purpose of a criminal trial is to decide

the factual question of the defendant’s guilt or innocence and promotes public

respect for the criminal process by focusing on the underlying fairness of the

trial rather than on the virtually inevitable presence of immaterial error.”

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Moreover, this doctrine functions as a substantive principle of law, and

appellate courts may apply it sua sponte. Id. at 1301.

Appellant argues in his February 6, 2024 brief that K.G.’s videotaped

statements were prejudicial because they could have swayed the jury to give

more weight to C.C.’s statements on the witness stand. Appellant’s Brief at

15-16. We disagree. Statements (1) and (2) were cumulative of and

substantially similar to C.C.’s untainted testimony during trial that she told

K.G. about Appellant’s acts, Appellant made her take her clothes off, Appellant

photographed her in the nude, and Appellant promised to buy her things if

she complied. N.T., 9/13/21, at 91-92, 99, 102. In addition, Statements (1)

and (2) were substantially similar to K.G.’s untainted testimony during trial

that K.G. saw Appellant direct C.C. to remove her clothes, and C.C. told K.G.

that Appellant touched C.C. in inappropriate places. Id. at 121-123.

Statement (3) is cumulative of and substantially similar to other untainted

testimony by C.C. during trial that she told her mother about Appellant’s

conduct. Id. at 109.

Other evidence unrelated to K.G.’s statements provided overwhelming

evidence of Appellant’s guilt. Appellant’s sister-in-law and father-in-law both

testified that Appellant threatened to kill himself as a result of the criminal

investigation, and Appellant’s father-in-law discovered a loaded shotgun in

Appellant’s car. A detective testified that Appellant admitted taking nude

photographs of his daughters but then deleting them from his phone.

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Appellant also gave a statement to a detective implying that he had sexual

contact with one of his daughters. Given the overwhelming evidence that

established Appellant’s guilt, irrespective of the challenged statements in

K.G.’s videotaped interview, we conclude that beyond a reasonable doubt that

any error committed in admitting the challenged statements could not have

contributed to the verdict.

For these reasons, Appellant’s tender years issue does not entitle him

to relief. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. Application for second extension of

time within which to file Appellant’s brief granted.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/13/2024

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