Com. v. Walter, J.

J-A18041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAY LEE WALTER, SR.

Appellant No. 1829 MDA 2010

Appeal from the Judgment of Sentence November 1, 2010 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000532-2009

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2014

Jay Lee Walter, Sr., appeals from his judgment of sentence, entered in the Court of Common Pleas of Franklin County, following his conviction by a jury for rape of a child (under 13), involuntary deviate sexual intercourse with a child (under 13), indecent assault, endangering the welfare of a child, and aggravated indecent assault of a child. The charges stemmed from events that occurred between October 2006 and October 2008 during which Walter allegedly had sexual intercourse with his daughter (born November incarceration and was ultimately determined to be a sexually violent predator (SVP) pursuant to 42 Pa.C.S. § 9792. After careful review, we affirm.

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This case has been remanded to this Court from our Supreme Court, see Commonwealth v. Walter, No. 53 MAP 2012, 2014 Pa. LEXIS 428 (Pa. Feb. 18, 2014), which reversed our previous decision finding the trial court abused its dis -of-court statements into evidence pursuant to the Tender Years Hearsay Act (TYHA), 42

Pa.C.S.A. § 5985.1,1 ____________________________________________

1 The TYHA allows statements made by a child victim of sexual assault to be admitted into evidence, if the statements are relevant and sufficiently reliable. The statute provides, in relevant part:

(a) General rule. An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offense), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

(1) 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

(2) the child either:

(i) testifies at the proceeding; or (ii) is unavailable as a witness.

(a.1) Emotional distress. In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress (Footnote Continued Next Page)

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601 is not a prerequisite to the admission of hearsay statements under the TYHA. In reaching its decision, the Supreme Court also concluded that the trial court correctly determined that the instant victim was unavailable as a witness.2 remaining issues on appeal:3

(1) Did the Court err in prohibiting the Defense from having the opportunity, as requested, to retain an expert on the issues related to the statements allegedly made by the victim?

(2) Did the Court err in precluding the defense from calling the alleged victim as a witness at trial?

_______________________ (Footnote Continued)

that would substantially impair the child's ability to reasonably communicate. In making this determination, the court may do all of the following:

(1) Observe and question the child, either inside or outside the courtroom.

(2) Hear testimony of a parent or custodian of any other person, such as a person who has dealt with the child in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985.1(a), (a.1) (emphasis added). 2 Specifically, the Supreme Court held that ou

Walter, 2014 Pa. LEXIS 428, at *35. 3 disposed of by the Supreme Court. See Walter, 2014 Pa. LEXIS 428, at *35-36 (trial court correctly concluded victim was unavailable as witness and, therefore, that her out-of-court statements provided sufficient indicia of reliability so as to be admissible under TYHA). Therefore, we need not address it on appeal.

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(3) Did the Court err in precluding the Defense from bringing forth at trial testimony of eye- interaction with the alleged victim?

(4) Did the Court err in precluding the Defense from bringing forth at trial the fact that alleged eye-witness [sic] Angel Morris has been convicted of a criminal act similar to that in which the Defendant was charged?

(5) the Defendant professionally evaluated to determine if he was competent to stand trial and/or to withdraw a guilty plea tendered?

(6) Was the Defendant inappropriately motivated to withdraw his plea of guilty by the fact that the Franklin County Probation Department refused to release the Defendant on pre-trial release pending sentencing?

(7)

The Supreme Court aptly summarized the underlying facts of this case as follows:

On October 17, 2008, Franklin County Children & Youth Services ("CYS") received an anonymous call regarding the welfare of A.W. (hereinafter "victim"), the four-year-old daughter of Appellee Jay Lee Walter. A CYS caseworker, Leann Briggs, asked Appellee and his wife, the victim's mother, to bring the victim to the agency, so that Briggs could verify the child's safety. During an interview Briggs conducted with the victim, the victim indicated that she was afraid of Appellee because of "Chuckie," a name she used to refer to Appellee's penis. The victim told Briggs that Chuckie moves back and forth on top of her, and that Chuckie goes inside of her body, specifically, her vagina. The victim also told Briggs that Appellee made the victim take her clothes off, lie down, and then forced the family dog, "Baby," to lick the victim's vagina. Following Briggs' interview, the victim was placed in foster care on an emergency basis. Pennsylvania State Police Trooper Courtney Pattillo began an investigation, during which time she interviewed various witnesses, including Appellee. On October 20, 2008, Appellee was charged with rape of a child, two counts of involuntary

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deviate sexual intercourse with a child, indecent assault, and endangering the welfare of a child.

Thereafter, the Commonwealth filed a motion seeking to introduce certain statements made by the victim to third parties into evidence pursuant to the TYHA.

• • * *

At a hearing on January 30, 2009 ("TYHA Hearing"), the Commonwealth conducted an in camera evaluation of the victim, who by then had turned five. The trial court asked the victim a number of questions, including questions regarding her name, age, and living arrangements, and she appeared to give appropriate answers. However, when the Commonwealth asked the victim various questions related to her understanding of truth and lies, the victim gave a number of nonsensical or bizarre answers.

The Commonwealth presented the testimony of the CYS caseworker, Briggs, as well as testimony by the victim's foster mother ("Foster Mother"), with whom the victim had been living since October 17, 2008. Foster Mother testified regarding the emotional effect court hearings and appearances had on the victim; specifically, Foster Mother testified that the victim became "very unsettled" and "very emotional" in the days following an appearance at the courthouse, and would suffer from nightmares for several days after attending court proceedings. N.T. Hearing, 1/30/09, at 42. On one occasion, immediately after a preparatory session with the prosecutor, the victim smeared feces on the walls of the house. Foster Mother stated that, in her view, requiring the victim to testify in front of Appellee would traumatize the victim.

Foster Mother also testified regarding an incident that occurred at the end of October 2008, shortly after the victim moved in with the family. According to Foster Mother, the victim was on the toilet and Foster Mother was cleaning up after her when the victim suddenly asked, "is there anymore blood?" Id. at 39. When Foster Mother asked the victim what she meant, the victim replied, "there was blood when Daddy Jay sticks his finger in there." Id. Foster Mother recounted another occasion on which she was awakened as the victim screamed and ran into Foster Mother's bedroom. The victim was crying and shaking and

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stated that she was "afraid that daddy was going to bring Chuckie to her room," and that "Chuckie bites." Id. at 40. The victim told Foster Mother that "Chuckie is daddy's body's part," and drew a picture which indicated that that "Chuckie" was her father's penis. Id.

The Commonwealth next presented the testimony of Angela Morris, a family friend of the Walters. Morris testified that, around October 2007, she and her son were at a child's birthday party at which the victim was also a guest. During the party, the victim grabbed Morris' son's "private part." Id. at 50. When Morris confronted the victim about the behavior, the victim responded, "it was okay to do that;" "daddy says it's okay;" and that she "touch[es] daddy there." Id. at 50-51.

Diane Bulger, a neighbor and former friend of the family, also testified at the TYHA hearing. Bulger testified that, in October 2008, she went to the Chambersburg Mall with her son, the victim, Appellee, and Appellee's wife. Bulger testified that Appellee took the victim into the men's bathroom at the mall, and when the victim exited the bathroom, she was crying and stated, "don't let daddy hurt me down below." Id. at 61.

Another friend of the family, Rebecca Alkire, testified that, in May 2008, while she was babysitting the victim, she was in the process of changing the victim's diaper when the victim stated, "watch [your] fingers." Id. at 64. Concerned about the statement, Alkire later discussed it with the victim's mother, who explained that she and Appellee were trying to train the victim to use this phrase if someone tried to touch her in her vaginal area. Id. Alkire recounted another time, in July or August 2008, when the victim was watching cartoons at Alkire's house and Alkire tickled the victim. The victim immediately became tense, and Alkire asked the victim if anyone had ever touched her. The victim replied that her daddy touches her "pussy" with his "dick." Id. at 65.

On February 23, 2009, the trial court entered an order holding the victim was competent to testify, but was unavailable as a witness because testifying would cause her serious emotional distress that would substantially impair her ability to reasonably communicate to the jury. Trial Court Order, 2/23/09, at 2. The court, however, instructed the parties that the court's finding of the victim's competence at the TYHA hearing did not preclude Appellee from challenging the child's competency at later stages

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of the proceedings. The court further concluded the statements the victim made to the five adult witnesses (Briggs, Foster Mother, Bulger, Morris, and Alkire) who testified at the TYHA hearing, contained sufficient indicia of reliability to be admissible under the TYHA. Finally, the court granted the Commonwealth's motion to allow the victim to testify by contemporaneous alternative method.

A preliminary hearing was held on March 31, 2009, before a magisterial district judge ("MDJ") and the victim was called to testify outside of Appellee's presence. However, following questioning of the victim, the MDJ concluded the victim was not, in fact, competent to testify because, inter alia, she repeatedly stated that it was a "good thing" to tell a lie. N.T. Hearing, 3/31/09, at 10. Nevertheless, the MDJ proceeded with the preliminary hearing, and the prosecutor called the same witnesses who previously testified at the TYHA hearing.

On July 19, 2010, a jury trial commenced, and the trial court permitted a defense witness to read into the record the victim's testimony from both the TYHA hearing and the preliminary hearing. The court also permitted the five adult witnesses to testify pursuant to the TYHA regarding the statements made by the victim. The jury convicted Appellee of all charges, and the trial court sentenced him to an aggregate term of 30 to 60

evaluation by the Sexual Offender Assessment Board, and, ultimately, was determined to be a sexually violent predator.

Walter, 2014 Pa. LEXIS 428, at *1-10. After careful review, we affirm

-reasoned decision authored by the Honorable Douglas W. Herman. tainted as a result of improper interview techniques used in prior proceedings. Walter hired an expert who prepared a preliminary opinion,

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a comprehensive evaluation of the child. However, when the Commonwealth informed the court at a pretrial hearing that it would not call the child victim or play any interview videos of the victim, the court ruled that time.4 Moreover, while various adult witnesses did testify in camera to statements made by the victim regarding the alleged abuse, the defense nev coerced into making the relevant statements. Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006) (during hearing on competency of child witness on issue of taint, party alleging taint bears burden of production of evidence of taint and burden of persuasion to show taint by clear and convincing evidence). Based on the fact that the court deemed the victim competent (closer to the time that the actual statements were made to adult witness as opposed to a later scheduled competency hearing), found an

indicia of reliability5 ____________________________________________

4 -

was competent to testify (albeit unavailable under section 5985.1 of the TYHA). 5 Specifically, the court found that: (Footnote Continued Next Page)

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produce evidence of any taint, the court correctly ruled that the expert

y.

Moreover, the trial court correctly determined that the victim was unavailable to testify because doing so would result in her suffering serious emotional distress to the point where she could not reasonably communicate. See 42 Pa.C.S. § 5985.1(a.1). compulsory process was not violated. Commonwealth v. Lyons, 833 A.2d 245, 254 (Pa. Super. 2003). request to call witnesses to testify that they had observed him with the victim in the past and that he acted appropriately with the victim on many occasions. Because the admission of such evidence would constitute not admissible under Pa.R.E. 404, 405.

_______________________ (Footnote Continued)

[T]he child was particularly likely to be telling the truth when the child made the statements in light of their spontaneity and state at the time of the alleged incidents and at the time the child made the statements to the adults, the use of graphic sexual terminology and descriptions which is unexpected of a child of similar age, and the lack of motive to fabricate or to make false statements for the purpose of manipulating situations to her advantage insofar as the result of making the statements was removal from the only home the child has ever known.

Trial Court Order, 2/23/09, at 2.

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Additionally, the trial court correctly refused to permit Walter to crossexamine witness, Angela Moore, about her past statutory sexual assault were relevant with regard to her bias or motive to testify falsely, or that they convictions were not considered crimen falsi crimes that would be admissible under Pa.R.E. 609.

request for a understandable throughout a hearing held on the issue, he presented no evidence on the issue of his incompetency other than the fact that he had mental health issues in the past and was emotional about the recent loss of his father and the fact that his daughter had been adopted. See Commonwealth v. Chopak, 615 A.2d 696, 700 (Pa. 1992) (regarding issue of defendant's competence, appellate courts recognize significance of and give deference to trial judge's determination of competency based upon

The trial court correctly permitted Walter to withdraw his guilty plea after an extensive colloquy where Walter indicated that he was innocent and the Commonwealth would suffer no substantial prejudice from the withdrawal. N.T. Withdraw of Guilty Plea Proceedings, 4/7/2010, at 6-7, 13-14. See Commonwealth v. Shaffer, 446 A.2d 591, 593 (Pa. 1982) (presentence requests to withdraw guilty plea should be liberally granted when

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prejudice;" mere assertion of innocence is "fair and just" reason for withdrawal). Moreover, because Walter never requested reconsideration of the plea withdrawal prior to trial, the claim that his decision to withdraw his plea was uninformed, which is raised for the first time on appeal, is waived. Pa.R.A.P. 302(a).

Finally, the trial court properly classified Walter as an SVP6 where a thirteen-year member of the Sexual Offenders Assessment Board (SOAB) testified and the evidence clearly showed that Walter suffers from a mental abnormality (pedophilia) as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), exhibited predatory behavior in this case, and to make his SVP determination was

fully discussed all of the factors pertaining to Walter and how they were ____________________________________________

6 A sexually violent predator is defined as a person who has been convicted of a sexually violent offense as set forth in 42 Pa.C.S. § 9795.1 (relating to registration) and who is determined to be a sexually violent predator under 42 Pa.C.S. § 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. See 42 Pa.C.S. § 9792; see also Commonwealth v. Krouse, 799 A.2d 835, 838 (Pa. Super. 2002) (en banc). "Mental abnormality" is a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. 42 Pa.C.S. § 9792.

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relevant to his mental abnormality. See Commonwealth v. Feucht, 955 A.2d 377 (Pa. Super. 2008) (no statutory requirement that all or any particular number section 9795.4 factors be present or absent to support

7 authored by Judge Herman, in the event of further proceedings in the matter.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2014 ____________________________________________

7 See Order of Court, 2/24/2009; Opinion and Order, 1/6/2010; and Opinion sur Pa.R.A.P. 1925(a) and Order of Court, 1/7/2011.

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