In the Int. of: W.T.H., a minor (memorandum)

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J-A07010-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: W.T.H., A MINOR : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1500 MDA 2013 Appeal from the Order July 19, 2013 In the Court of Common Pleas of Huntingdon County Criminal Division At No(s): CP-31-JV-0000068-2011 BEFORE: GANTMAN, P.J., DONOHUE, J., and STABILE, J. MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 29, 2014 Appellant, W.T.H., appeals from the dispositional order entered in the Huntingdon County Court of Common Pleas, following his adjudication of and false reports to law enforcement authorities.1 We affirm. The relevant facts and procedural history of this case are as follows. In early June 2011, N.S., the victim, then six (6) years-old, was watching TV with his grandmother, uncle, and mother. While watching TV, N.S. told his 1 18 Pa.C.S.A. §§ 3123(b) and 4906, respectively. J-A07010-14 father and stepmother what N.S. had told her. he told her it had happ contact the Pennsylvania State Police or Children and Youth Services ed them to get Appellant help. Approximately one month later, the state police interview N.S. because he had not mentioned the incident again and because he is autistic, diagnosed ADHD, receives treatment and takes involving him in a criminal prosecution. On September 28, 2011, Trooper Fred Chadwick of the state police interviewed Appellant about the incident in the presence of his biological mother at the Huntingdon state police barracks. Appellant was thirteen (13) years-old at the time of the incident and admitted the sexual contact with N.S. Appellant said he and N.S. were looking for a lost video game at which he did. Appellant asked N.S. if Appellant could put his mouth on -2- J-A07010-14 penis for approximately five (5) seconds. Appellant asked N.S. to put his seconds. delinquency was filed on the basis of IDSI with a child less than thirteen (13) years of age and false reports. The Commonwealth filed a motion on May 17, 2013, to determine if N.S. was available to testify, under the Tender Years Exception to the hearsay rule.2 The court conducted a hearing on the 3, statement to his mother regarding the incident was reliable and admissible, and found N.S. was unavailable to testify. That same day, the court conducted an adjudication hearing, where Appellant testified another boy had committed the acts against N.S., and Appellant delinquent on both charges. On July 23, 2013, the court issued a dispositional order and committed Appellant to supervision. Appellant timely filed a notice of appeal on August 5, 2013. 2 42 Pa.C.S.A. § 5985.1. -3- On the same day, the court J-A07010-14 ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on August 16, 2013. Appellant raises the following issues for our review: DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT ADMITTED THE OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY [N.S.] DESCRIBING THE ALLEGED CRIMINAL CONDUCT PURSUANT TO ARSAY RULE? WAS THE EVIDENCE SUFFICIENT, AS A MATTER OF LAW, TO ADJUDICATE THE DELINQUENCY OF INVOLUNTARY DEVIATE SEXUAL INTERCOURSE BETWEEN A THEN 13 YEAR OLD PERPETRATOR AND A 6 YEAR OLD VICTIM? inadmissible under the Tender Years Exception to the hearsay rule, because the statement was unreliable and N.S. was available to testify at the unreliable without any consistency of repetition, as N.S. made the statement only once to his mother. Also, N.S. is autistic and has been diagnosed with ADHD and anxiety, which causes him to exaggerate or fabricate things when he is anxious. Appellant furthermore contends N.S. was available to testify special education teacher did not prove N.S. would suffer serious emotional distress that would substantially impair his ability to communicate. Appellant maintains the testimony from the May 20, 2013 hearing showed -4- J-A07010-14 N.S. might have been able to testify if he had been prepared. Appellant pursuant to the Tender Years Exception, and this Court should reverse the decision. We disagree. principles: Our standard of review of dispositional orders in juvenile discretion to the court when determining an appropriate disposition. We will not disturb a disposition absent a In re R.D.R., 876 A.2d 1009, 1013 (Pa.Super. 2005) (internal citation omitted). s delinquent must be disposed of in accordance with the Juvenile Act. Dispositions which are not set forth in the Act are beyond In re J.J., 848 A.2d 1014, 1016-17 (Pa.Super. 2004) (citation omitted). Commonwealth v. B.D.G., 959 A.2d 362, 366-67 (Pa.Super. 2008). of-court statement due to the fragile nature of young victims of sexual Commonwealth v. Kriner, 915 A.2d 653, 657 (Pa.Super. 2007) (quoting Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.Super. 2002)) (quotation marks omitted). The Tender Years Exception to the hearsay rule provides in relevant part: § 5985.1. Admissibility of certain statements (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 -5- J-A07010-14 to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 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 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 or 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). possess sufficient indicia of reliability, as determined from the time, content, Commonwealth v. O'Drain, 829 A.2d -6- J-A07010-14 316, 320 (Pa.Super. 2003) (citing 42 Pa.C.S.A. consideration for determining when hearsay statements made by a child witness are sufficiently reliable is whether the child declarant was Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa.Super. 2003) (citing Commonwealth v. Hanawalt, 615 A.2d 432, 438 (Pa.Super. 1992)). Factors the court may consider when determining reliability include, but are n repetition, the mental state of the declarant, use of terms unexpected in children of Commonwealth v. Delbridge, 578 Pa. 641, 675, 855 A.2d 27, 47 (2003); see Lyons, supra. lso] requires that an in camera hearing Lyons, supra concluding a child witness is unavailable, a court must determine whether forcing the child to testify will result in such serious emotional distress to the Id.; 42 question the child witness or hear testimony of a parent or person who has Id. at 254-55; 42 Pa.C.S.A § 5985(a.1)(1)Kriner, supra at 653. -7- J-A07010-14 the incident with Appellant was spontaneous, without motive to fabricate; repetition See Delbridge, supra. N.S. discussed the incident on only one occasion, in early June 2011, when N.S. told his mother mention the incident again, or to anyone other than his mother, does not render his statement unreliable. See Lyons, supra (determining indicia of ility to be admitted under the Tender Years Exception to the hearsay rule. See ; 42 Pa.C.S.A. § 5985.1(a)(1). Additionally, the court conducted a hearing on May 20, 2013, in which list, and a special hearing. See 42 Pa.C.S.A. § 5985.1(a). In its opinion, the court discussed the hearing as follows: at her son was born [February 2005]. She reported that her son is autistic, has been diagnosed ADHD and experiences anxiety. She indicated [N.S. does not] like to be around new people. He gets scared, she said, and cries or runs * * -8- * J-A07010-14 Kristen Miller, a behavioral specialist employed by Universal Community Behavioral Health, Centre Hall, Pennsylvania, testified [N.S.] was a client of hers. She told [the court N.S.] is currently diagnosed with Autistic Disorder, Disruptive Behavior Disorder, NOS and Attention Deficit Hyperactivity Disorder, Combined Type. She told [the court] that [N.S.] had difficulty focusing, had difficulty expressing his feelings and did not react well to meeting new people. She expressed the opinion that he could suffer serious emotional distress if he were called upon to testify. Aron Christopher also testified. She identified herself as a Special Education Teacher and said [N.S.] has been on her caseload for the last two (2) years. She too expressed concerns about [N.S.] testifying. * * * [W]e accepted the opinions of Ms. Miller and Ms. Christopher that forcing [N.S.] to testify could cause [him] serious emotional distress. Given the multiple mental health diagnoses with respect to [N.S.], we did not hesitate in finding that he was unavailable as a witness. (Trial Court Opinion, filed September 17, 2013, at 6-9). Thus, the court with N.S. in a therapeutic setting, and determined that forcing N.S. to testify would cause him serious emotional distress to the point that he would be unable to reasonably communicate. See Lyons, supra; 42 Pa.C.S.A. § declar statement to his mother under the Tender Years Exception. In his second issue, Appellant argues the evidence was insufficient to adjudicate him delinquent for IDSI of a child. -9- Specifically, Appellant J-A07010-14 contends he does not fit the definition of a juvenile offender because he was only thirteen (13) years-old at the time of the incident. Appellant claims an individual who is fourteen (14) years of age or older. asserts he cannot be considered a juvenile offender. Appellant also maintains his adjudication is infirm because N.S. did not testify, and Appellant denied at his hearing that the conduct ever occurred. Appellant concludes this Court should reverse his adjudication and disposition on these grounds. We disagree. When examining a challenge to the sufficiency of evidence, our standard of review is as follows: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a -finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the - 10 - J-A07010-14 weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). The Pennsylvania Consolidated Statutes define IDSI of a child as follows: § 3123. Involuntary deviate sexual intercourse (b) Involuntary deviate sexual intercourse with a child. A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age. relevant part, as follows: § 9799.12. Definitions One of the following: (1) An individual who was 14 years of age or older at the time the individual committed an offense which, if committed by an adult, would be classified as an offense under 18 Pa.C.S. § 3121 (relating to rape), 3123 (relating to involuntary deviate sexual intercourse) or 3125 (relating to aggravated indecent assault) or an attempt, solicitation or conspiracy to commit an offense under 18 Pa.C.S. § 3121, 3123 or 3125 and either: (i) is adjudicated delinquent for such offense on or after the effective date of this section; or (ii) has been adjudicated delinquent for such offense and on the effective date of this section is subject to the jurisdiction of the court on the basis of that adjudication - 11 - J-A07010-14 of delinquency, including commitment to an institution or facility set forth in section 6352(a)(3) (relating to a disposition of delinquent child). (2) An individual who was 14 years of age or older at the time the individual committed an offense similar to an offense under 18 Pa.C.S. § 3121, 3123 or 3125 or an attempt, solicitation or conspiracy to commit an offense similar to an offense under 18 Pa.C.S. § 3121, 3123 or 3125 under the laws of the United States, another jurisdiction or a foreign country and was adjudicated delinquent for such an offense. * * * 42 Pa.C.S.A. § 9799.12.3 hearing that N.S. was born in February 2005, which made him six (6) yearsold at the time of the incident. Appellant also testified at his hearing that he was born in November 1997, which made him thirteen (13) years-old at the time of the incident. Trooper Chadwick testified Appellant admitted in his interview to the sexual conduct with N.S. Therefore, the Commonwealth delinquent for IDSI of a child.4 See 18 Pa.C.S.A. § 3123(b). The fact that does not relieve him of culpability. 3 See 42 Pa.C.S.A. § 6302 (defining The statute has undergone extensive revisions recently, but for purposes of 4 In re B.A.M., 806 A.2d 893 (Pa.Super. 2002) is misplaced because that case concerned sexual conduct between two eleven year olds. This Court refused to afford one participant ascendancy over the - 12 - J-A07010-14 found to have committed a delinquent act and is in need of treatment, Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/29/2014 - 13 -

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