In the Interest of: N.J.E., a Minor

Superior Court of Pennsylvania

In the Interest of: N.J.E., a Minor

DecidedNovember 18, 2016

Docket273 MDA 2016

StatusUnpublished

This text of In the Interest of: N.J.E., a Minor (In the Interest of: N.J.E., a Minor) 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.J.E., a Minor, (Pa. Ct. App. 2016).

Pincite

Opinion

J-A22030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.J.E., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

APPEAL OF: N.J.E., A MINOR

No. 273 MDA 2016

Appeal from the Dispositional Order February 8, 2016 In the Court of Common Pleas of Centre County Juvenile Division at No(s): CP-14-JV-0000135-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 18, 2016

Appellant, N.J.E., appeals from the dispositional order entered after

he was found delinquent of indecent assault of a minor. N.J.E. contends that

the juvenile court erred in admitting evidence of a prior delinquency

adjudication and in denying his motion asserting that the minor victim’s

testimony was tainted. After careful review, we affirm.

While N.J.E. was under supervision pursuant to a consent decree

entered on a charge that he had exposed himself to his minor brother, N.J.E.

was charged with touching his other minor brother’s genitals. At trial, the

Commonwealth presented the testimony of the victim and evidence of the

circumstances supporting the consent decree. The juvenile court adjudicated

N.J.E. delinquent, and subsequently entered a dispositional order placing J-A22030-16

N.J.E. in a residential sex offender treatment program. This timely appeal

followed.

On appeal, N.J.E. first argues that the juvenile court erred in

permitting the Commonwealth to present evidence of the circumstances

supporting the consent decree. We will disturb a juvenile court’s disposition

only upon a showing of a manifest abuse of discretion. See In re R.D., 44

A.3d 657, 664 (Pa. Super. 2012). “The [a]dmission of evidence is within the

sound discretion of the trial court and will be reversed only upon a showing

that the trial court clearly abused its discretion.” In re F.P., 878 A.2d 91,

93 (Pa. Super. 2005) (citation omitted).

N.J.E. contends that the juvenile court erred in admitting evidence that

he had previously exposed himself to his minor brother. The juvenile court

concluded that this evidence was admissible under the “common plan or

scheme” exception. It is impermissible to present evidence at trial of a

defendant’s prior bad acts or crimes to establish the defendant’s criminal

character or proclivities. See Commonwealth v. Hudson, 955 A.2d 1031,

1034 (Pa. Super. 2008). Such evidence, however, may be admissible “where

it is relevant for some other legitimate purpose and not utilized solely to

blacken the defendant’s character.” Commonwealth v. Russell, 938 A.2d

1082, 1092 (Pa. Super. 2007) (citation omitted). The Rules of Evidence

specifically provide that “[e]vidence of other crimes, wrongs, or acts may be

admitted for other purposes, such as proof of motive, opportunity, intent,

-2- J-A22030-16

preparation, plan, knowledge, identity or absence of mistake or accident.”

Pa.R.E. 404(b)(2).

In determining whether the common plan exception applies, a trial

court must assess the distinctiveness and similarity of the circumstances of

the two incidents to determine whether they constitute a “signature.”

Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa.Super. 2015)

(citations omitted). Next, the court must assess the lapse of time between

the incidents, as a prior bad act that is remote in time may not be probative

of a common plan. See id. Finally, the court must determine that the

probative value of the prior bad act evidence is not outweighed by the

prejudicial impact on the trier of fact. See id.

Here, the current charges and the prior bad act both involved

allegations that N.J.E. had indecently assaulted his younger brothers in the

family’s home. The prior bad act was separated from the current allegations

by less than a year. Finally, the juvenile court, as trier of fact, was able to

consider the evidence only for its proper purpose, and not be swayed to

decide the case on improper grounds. See, e.g., Commonwealth v.

Harvey, 526 A.2d 330, 333 (Pa. 1987) (a trial judge is equipped, through

training and experience, to assess the competency and relevance of

proffered evidence and to disregard that which is prejudicial);

Commonwealth v. Brown, 486 A.2d 441, 443–44 (Pa. Super. 1984) (a

trial judge sitting as fact finder is presumed to ignore prejudicial evidence).

-3- J-A22030-16

We thus conclude that the juvenile court did not abuse its discretion in

admitting evidence of the prior bad acts.

Next, N.J.E. argues that the juvenile court erred in allowing the victim

to testify in this case. In particular, N.J.E. contends that the victim was

unduly influenced by leading and suggestive questioning by agents of the

Commonwealth. N.J.E.’s claim is an argument against the victim’s

competency to testify. “Our standard of review recognizes that a child’s

competency to testify is a threshold legal issue that a trial court must

decide, and an appellate court will not disturb its determination absent an

abuse of discretion. Our scope of review is plenary.” Commonwealth v.

Pena, 31 A.3d 704, 706-707 (Pa. Super. 2011) (citations, quotation marks,

brackets, and emphasis omitted).

“In Pennsylvania, the general rule is that every witness is presumed

to be competent to be a witness.” Commonwealth v. Judd, 897 A.2d

1224, 1228 (Pa. Super. 2006) (citation omitted); see also Pa.R.E. 601(a).

“A party who challenges the competency of a minor witness must prove by

clear and convincing evidence that the witness lacks the minimal capacity ...

(1) to communicate, (2) to observe an event and accurately recall that

observation, and (3) to understand the necessity to speak the truth.” Pena,

31 A.3d at 707 (internal quotation marks and citations omitted).

N.J.E. specifically challenges the second prong of the above three-part

test, what our Supreme Court has called “taint.” “Taint speaks to the

-4- J-A22030-16

second prong ..., the mental capacity to observe the occurrence itself and

the capacity of remembering what it is that the witness is called upon to

testify about.” Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003)

(citation and brackets omitted; emphasis in original).

In Delbridge, the Court stated the following regarding the issue of

taint:

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.

Id., at 34-35 (internal citations omitted). The Court also explained the effect

Free access — add to your briefcase to read the full text and ask questions with AI