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Home My WebLink AboutCP-21-CR-3298-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JESSE VANCE SHOEMAKER : CP-21-CR-3298-2006 IN RE: NOTICE OF COMMONWEALTH TO PROCEED UNDER TENDER YEARS EXCEPTION TO HEARSAY RULE AND TO TAKE TESTIMONY BY CONTEMPORANEOUS ALTERNATIVE METHOD OPINION AND ORDER OF COURT Bayley, J., August 20, 2007:-- Defendant, Jesse Vance Shoemaker, is charged with involuntary deviate sexual 12 intercourse with a child, and corruption of minors. The offenses involve his step- daughter, age 8, born June 8, 1999. They are alleged to have occurred in April, 2006, when the child was six years old. The Commonwealth filed a motion to allow the child’s testimony at trial to be taken by a contemporaneous alternative method and to allow the victim’s mother and Paula George, M.D., to testify to statements the child made to them. The Judicial Code at 42 Pa.C.S. Section 5985, provides: Testimony by contemporaneous alternative method (a) Contemporaneous alternative method.— Subject to subsection (a.1), in any prosecution or adjudication involving a child victim or a child material witness, the court may order that the testimony of the child victim or child __________ 1 18 Pa.C.S. § 3123(b). 2 18 Pa.C.S. § 6301(a)(1). CP-21-CR-3298-2006 material witness be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method. Only the attorneys for the defendant and for the Commonwealth, the court reporter, the judge, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child victim or child material witness, including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child victim or child material witness but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross- examination of the child victim or child material witness shall proceed in the same manner as normally permitted. (a.1) Determination.—Before the court orders the child victim or the child material witness to testify by a contemporaneous alternative method, the court must determine, based on evidence presented to it, that testifying either in an open forum in the presence and full view of the finder of fact or in the defendant’s presencewill result in the child victim or child material witness suffering serious emotional distress that would substantially impair the child victim’sability to reasonably or child material witness’s communicate. In making this determination, the court may do all of the following: (1) Observe and question the child victim or child material witness, 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 victim or child material witness in a medical or therapeutic setting. (Emphasis added.) Based on the evidence presented pursuant to subsections (a.1), (1) and (2), we find that if the child testifies in an open forum in the presence and full view of the finder of fact and the defendant she will not suffer serious emotional distress that will substantially impair her ability to reasonably communicate. If she fails to reasonably communicate, it will not be caused by her suffering any serious emotional distress because she is testifying in open court -2- CP-21-CR-3298-2006 3 before a jury in the presence of defendant. The Judicial Code provides at 42 Pa.C.S. Section 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. . . . 31 (relating to sexual offenses) . . . not otherwise admissible by statute or rule of is admissible in evidence in any criminalproceeding if evidence, or civil : the court finds (1) , in an in camera hearing, that the evidence is that the time, content and circumstances of the relevant and statement provide sufficient indicia of reliability ; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. (Emphasis added.) Commonwealth v. Kriner, In 915 A.2d 653 (Pa. Super. 2007), the Superior Court of Pennsylvania noted that an indicia of reliability includes the spontaneity of statements, consistency in repetition, the mental state of the declarant, the use of terms unexpected in sub judice, children of that age, and the lack of a motive to fabricate. In the case the child, in April 2006 when she was six years old, made a statement to her mother that was not spontaneous, and was the result of her mother having “drilled and drilled her” by asking 4 leading and suggestive questions with various options as answers. The child was not thereafter consistent in repetition in that she did not repeat her statement in a blind interview __________ 3 The child told us that her counselor has already told her that she will be testifying before a camera. If this actually occurred, such a practice should be stopped immediately. 4 The mother’s testimony at the hearing to the statement made to her by her daughter was not even completely consistent with what the mother reportedly told a police officer the child said. -3- CP-21-CR-3298-2006 where leading questions were not asked by a child interview specialist with the Children’s Resource Center at the Pinnacle Health Center. Shortly after the blind interview, the child was given a medical examination by Paula George, M.D. The mother told Dr. George what the child had reported to her. Dr. George asked the child if she had told her something had happened that she did not like. The child nodded her head and said she did not know. The child was asked if she had told her mother about something bad happening to her and she said she did not know. At this point, her mother, who had not been present during the blind interview, intervened and spoke to her daughter. Then, with the mother remaining in the room, Dr. George asked the child a suggestive question based on something the mother had told her. Only then did the child essentially repeat the statement that the mother says she initially made to her. The time, content and circumstances of the initial statement to the mother, and the later statement to Dr. George, do not provide a sufficient indicia of reliability to warrant being admitted as an exception to the hearsay rule pursuant to Section 5985.1(a) of the Judicial Code. ORDER OF COURT IT IS ORDERED: AND NOW, this day of August, 2007, (1) The alleged child victim may not testify by a contemporaneous alternative method. (2) The alleged victim’s mother and Paula George, M.D. may not testify to out-of-court statements made to them by the child. -4- CP-21-CR-3298-2006 By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Arla Waller, Esquire For Defendant :sal -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JESSE VANCE SHOEMAKER : CP-21-CR-3298-2006 IN RE: NOTICE OF COMMONWEALTH TO PROCEED UNDER TENDER YEARS EXCEPTION TO HEARSAY RULE AND TO TAKE TESTIMONY BY CONTEMPORANEOUS ALTERNATIVE METHOD ORDER OF COURT IT IS ORDERED: AND NOW, this day of August, 2007, (1) The alleged child victim may not testify by a contemporaneous alternative method. (2) The alleged victim’s mother and Paula George, M.D. may not testify to out-of-court statements made to them by the child. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Arla Waller, Esquire For Defendant :sal