In the Interest of N.C.

74 A.3d 271, 2013 Pa. Super. 229, 2013 WL 4027048, 2013 Pa. Super. LEXIS 2131
CourtSuperior Court of Pennsylvania
DecidedAugust 8, 2013
StatusPublished
Cited by10 cases

This text of 74 A.3d 271 (In the Interest of N.C.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of N.C., 74 A.3d 271, 2013 Pa. Super. 229, 2013 WL 4027048, 2013 Pa. Super. LEXIS 2131 (Pa. Ct. App. 2013).

Opinion

OPINION BY

MUSMANNO, J.:

N.C. (a minor) appeals from the disposi-tional Order entered following his adjudication of delinquency for aggravated indecent assault, 18 Pa.C.S.A. § 3125(a)(7). We vacate the dispositional Order and remand for further proceedings.

In its Opinion, the juvenile court summarized the history underlying the instant appeal as follows:

[J.N. (“Mother”) ] is the mother of two minor children, [A.D.], date of birth March 21, 2008, and [S.D.]. She lives in Brockway, Jefferson County, Pennsylvania. ...
The two minor children’s parental grandmother is [S.H. (“Grandmother”),] who has lived since January 2011, with her boyfriend[, Nathan,] on Bond Street in Broekway [“the Bond Street house”]. Before moving in with [Nathan], [Grand[273]*273mother] lived in another house in Brock-way and she often babysat and kept her grandchildren overnight to accommodate [Mother’s] work schedule.
On November 5, 2011, [Mother] dropped her two children off at [the Bond Street] house[] around 8:30 a.m. She indicated that she was done with work around 12:30 p.m. and that sometime that afternoon, around 3 or 3:30, [Grandmother] called and said [A.D.] was upset and wanted to go home. [Mother] took the few minute drive to [the Bond Street house] and noticed that “all were out on the porch” and that [A.D.] was upset to the extent she either was crying or had just [finished] crying. [Mother] took [A.D.] home[,] where she described [A.D.] as not being herself, laying around and watching cartoons on TV. At some point[, Mother] sat in the room to watch cartoons with her daughter.... [Mother] estimated this to be about an[] hour and a half after she picked [A.D.] up from [the Bond Street house.]
Without any conversation, [A.D.] said “my pee pee hurts.” After that[, Mother] asked “what’s wrong” to which [A.D.] responded[,] “[N.C.] touched me.”
[Mother] engaged in no more discussion with the minor child, but instead called Nathan, [who is] the father of [N.C.] Upon calling [Nathan], she asked if [N.C.] was present at [the Bond Street house,] to which [Nathan] responded “no.” She then had [A.D.] drop her pants and look[ed] at her genital area, noticed it was red in the center, which she thought was a rash[,] so she applied Vaseline to it. She did no further care or investigation on that date because she assumed it was impossible for [N.C.] to have touched [A.D.] when he was not present at [the Bond Street house]. However, several days later, [Nathan] told her [that N.C.] ... was present at [the Bond Street house] on the date and time in question. When she found out [N.C.] was present, as soon as possible thereafter, [Mother] took her daughter to the Brockway Police Department and discussed the matter with Chief Terry Young and this investigation and allegation ensued.
On several occasions since that November time frame and after the child having been interviewed at Western Pennsylvania Cares, [Mother] has experienced the child at least two or three times saying that “[N.C.] touched her pee pee.” Mother cannot give a date, time or much in the way of specifics, as to how the spontaneous statements have happened, but indicated that her [sic] and her boyfriend have witnessed these statements.
The Western Pennsylvania Cares Center (“the Center”) is a child advocacy center that was established for abused or suspected abused, child interviews ....

Juvenile Court Opinion, 5/29/12, at 1-2.

After an adjudicatory hearing, the juvenile court adjudicated N.C. delinquent of the above-stated charge. The juvenile court ordered that N.C. be placed on probation for one year, to be served consecutive to a probation violation disposition imposed in a different case. Thereafter, N.C. filed the instant timely appeal.

On appeal, N.C. presents the following claims for our review:

I. Whether the [juvenile] court erred in admitting into evidence [A.D.’s] testimonial out-of-court recorded statement made to a forensic interviewer, because [N.C.’s] rights conferred by the Confrontation Clauses of the 6th Amendment to the United States Constitution and Article 1, Section 9 of the Commonwealth of Pennsylvania’s Constitution [274]*274were violated when [N.C.] was denied the right to confront the child witness/complainant with cross[-]examination?
II. Whether [N.C.’s] rights conferred by the Confrontation Clauses of the 6th Amendment to the United States Constitution and Article I, Section 9 of the Commonwealth of Pennsylvania’s Constitution were violated by the [juvenile] court’s admitting into evidence the child witness complainant’s testimonial out-of-court recorded statement made to a forensic interviewer after the child witness was excused?
III. Whether the [juvenile] court erred in admitting into evidence the out-of-court recorded statements of the child witness to the forensic interviewer under the [The Tender Years Hearsay Act (“TYHA”)] Exception, 42 Pa.C.S.A. § 5985.1, which required the Commonwealth to produce the child witness to testify or the Court to find the child witness to be unavailable?

Brief for Appellant at 6.

N.C. challenges the admissibility of the recorded forensic interview of A.D. Brief for Appellant at 18. Specifically, N.C. claims that the admission of A.D.’s recorded statement violated his right to confrontation afforded by the Sixth Amendment to the United States Constitution. Id. N.C. argues that A.D.’s statements during the interview were testimonial in nature, as they were procured at a police arranged interview, which was conducted for the purpose of eliciting statements to be used during the prosecution of N.C. Id. at 19. Specifically, N.C. states that A.D. was interviewed by a forensic interviewer at the request of the police. Id. Further, N.C. argues that a county detective, the investigating officer and a representative of Children and Youth Services (“CYS”) watched the interview in a separate room, “on ‘real time’ television.” Id. Finally, N.C. argues that A.D. was so disengaged during her trial testimony as to be unavailable, effectively depriving N.C. of his Sixth Amendment right of confrontation. Id. at 20.

Under the TYHA, certain out-of-court statements made by a child victim or witness may be admissible at trial if the child either testifies at the proceeding or is unavailable as a witness, and the court finds “that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability.” 42 Pa.C.S.A. § 5985.1(a)(1). However, as discussed infra, with regard to testimonial hearsay, United States Supreme Court case law has rejected the indicia of reliability standard as violative of the Sixth Amendment to the United States Constitution.

The Sixth Amendment to the United States Constitution, otherwise known as the Confrontation Clause, guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”1 U.S. Const. amend. VI. Previously, in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
74 A.3d 271, 2013 Pa. Super. 229, 2013 WL 4027048, 2013 Pa. Super. LEXIS 2131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-nc-pasuperct-2013.