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

• Court: Superior Court of Pennsylvania
• Decided: November 20, 2017
• Docket: 211 MDA 2017
• Status: Unpublished

Opinion

J-S64039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.C.H., A IN THE SUPERIOR COURT MINOR OF PENNSYLVANIA APPEAL OF: B.C.H.

No. 211 MDA 2017

Appeal from the Order Entered December 28, 2016 In the Court of Common Pleas of Lancaster County Juvenile Division at No(s): CP-36-JV-0000525-2016

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

CONCURRING MEMORANDUM BY PANELLA, J. FILED NOVEMBER 20, 2017

My esteemed colleagues in the Majority contend that the juvenile court

erred by refusing to allow B.C.H. to cross-examine one of the victims, B.F., on

her romantic interest in another boy at the time of the criminal incident. I

disagree with that contention. However, because the Majority nevertheless

affirms the order entered in the Juvenile Division of the Lancaster County

Court of Common Pleas, I respectfully concur.

“The scope of cross-examination is a matter within the discretion of the

trial court and will not be reversed absent an abuse of that discretion.”

Commonwealth v. Rashid, 160 A.3d 838, 845 (Pa. Super. 2017) (citation

omitted). “Discretion is abused when the course pursued represents not

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* Retired Senior Judge assigned to the Superior Court. J-S64039-17

merely an error of judgment, but where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.” Interest of J.B.,

147 A.3d 1204, 1218 (Pa. Super. 2016) (citation omitted).

The right to cross-examine witnesses, though fundamental, is not

absolute. See Commonwealth v. Rosser, 135 A.3d 1077, 1088 (Pa. Super.

2016) (en banc). “[T]he Sixth Amendment does not entitle the defendant to

cross-examine a Commonwealth witness on a subject for which the defendant

cannot provide a factual foundation.” Id. For instance, our Supreme Court has

held that a trial court acted within its discretion in barring cross-examination

of a Commonwealth witness about alleged threats made to that witness, when

the defense attorney was unable to provide any factual basis for those

questions. See Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011). In

short, a defendant is not permitted to engage in “fishing expeditions” under

the guise of cross-examination. Rosser, 135 A.3d at 1089.

In his brief, Appellant argues that if B.F. were interested in A.J., another

boy, B.F. would not have wanted A.J. to hear about her consensual sexual

contact with Appellant. Thus, Appellant claims, B.F. had a clear motive to lie

in her testimony by stating that Appellant had sexually assaulted her.

Appellant assumes the initial premise—that B.F. was romantically interested

in A.J.— to advance his theory as to why B.F. might be an untruthful witness.

However, Appellant fails to provide even a shred of evidence in support of

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either assertion. Instead, Appellant maintains he should have been permitted

to build support for these unsubstantiated suppositions during his questioning.

Appellant’s attempts to pursue this line of questioning rely entirely on

speculation. Even Appellant’s appellate brief is couched in terms of

uncertainty—he indicates he wished to elicit information on B.F.’s “potential”

interest in A.J. as possible motivation for B.F. to give untruthful testimony

about whether she consented to Appellant’s conduct. See Appellant’s Brief, at

11. Appellant himself does not contend that B.F. was romantically interested

in A.J., only that he wished to explore this angle.

However, without anything further, Appellant’s allegations undoubtedly

constitute an impermissible fishing expedition. See Rosser, 135 A.3d at 1089.

Thus, I believe the court acted well within its discretion in precluding Appellant

from pursuing this baseless conjecture. See Rashid, 160 A.3d at 845.

Because the juvenile court did not err, there is no need for the majority

to apply the harmless error test. I must therefore concur.

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