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Home My WebLink AboutCP-21-CR-3009-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-3001-2007 ROBERT SPOONER SMITH, JR. : CP-21-CR-3009-2007 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., April 1, 2008:-- 1 Defendant, Robert Spooner Smith, is charged with two counts of rape, sexual 23 assault, and indecent assault, and one count of involuntary deviate sexual 456 intercourse, simple assault, and summary harassment, against Deana Miller. The offenses are alleged to have occurred on October 18, 2007. Defendant is also charged 7 with one count of simple assault, against Kenzee Smith occurring in the same time frame as the offenses involving Miller. Smith and Miller are the parents of Kenzee, born December 25, 2002. The Commonwealth filed a motion to allow Kenzee’s __________ 1 18 Pa.C.S. § 3121(a)(1). 2 18 Pa.C.S. § 3124.1. 3 18 Pa.C.S. § 3126(a)(1), (2). 4 18 Pa.C.S. § 3123(a)(1). 5 18 Pa.C.S. § 2701(a)(1). 6 18 Pa.C.S. § 2709(a)(1). 7 18 Pa.C.S. § 2701(a)(1), (b)(2). P-21-CR-3001-2007 CP-21-CR-3009-2007 testimony at -2- P-21-CR-3001-2007 CP-21-CR-3009-2007 trial to be taken by a contemporaneous alternative method outside the presence of defendant and to allow Crystal Deitch, a child interview specialist with the Children’s Resource Center in Harrisburg, and Patrolman Timothy Ryne of the West Shore Regional Police Department to testify to statements Kenzee made to them. Kenzee was four years old on October 18, 2007. The offenses are alleged to have occurred in a residence where she lived with her parents. Shortly after the incident, Miller and Kenzee went to the Holy Spirit Hospital. When Kenzee was there with Patrolman Ryne outside the presence of her mother she volunteered that her daddy was bad, that he hit her mommy and broke a table, and that she was afraid. A cold interview of Kenzee by Crystal Deitch, a child interview specialist, occurred at the Children’s Resource Center in Harrisburg 8 on October 24, 2007. Kenzee told Deitch things that she saw and heard during the father’s alleged assault of her mother and of her toe being struck when her father opened a door of a bathroom she was in. That striking forms the basis of the alleged assault by defendant against her. 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 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 __________ 8 Deitch did not know the nature of the allegations of criminal conduct when she conducted the interview. -3- P-21-CR-3001-2007 CP-21-CR-3009-2007 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.) Kenzee has not seen her father since October 18, 2007. She knows he is in jail. Deana Miller testified that Kenzee and her father were close before the incident. She misses him and asks about him a lot. Miller is of the opinion that Kenzee would be scared and upset about testifying with her father present. She does not think she will do it. Considering all of the evidence and testimony, including having viewed the videotape of the interview at the Children’s Resource Center and talking with Kenzee in chambers, we are not convinced that she will actually be able to testify in this case. We are, however, satisfied that if she is able to testify, that ability will not be affected by her being in a courtroom in the presence of a jury and -4- P-21-CR-3001-2007 CP-21-CR-3009-2007 defendant verses her testimony being taken outside of the courtroom on a live video feed. Nor are we satisfied that there is credible evidence that her testifying in the presence of defendant will cause her to suffer serious emotional distress that would substantially impair her ability to reasonably communicate. 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. . . . 27 (relating to assault) . . . 31 (relating to sexual offenses) . . . not otherwise is admissible in evidence in any admissible by statute or rule of evidence, criminalproceeding if 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. Hunzer, In 868 A.2d 498(Pa. Super. 2005), the Superior Court of Pennsylvania stated: The tender years exception to the rule against hearsay is set forth in 42 Pa.C.S.A. § 5985.1, Admissibility of certain statements. The tender years exception permits a hearsay statement of a child sexual abuse victim under the age of twelve to be admissible if the evidence is relevant and the time, content and circumstances of the statement provide sufficient indicia of reliability. . . . The factors to be considered by a trial court in determining whether the child declarant was likely to be telling the truth when the statement was made include: (1) the spontaneity and consistent repetition of the statement(s); (2) the mental state of the declarant; (3) the use of terminology unexpected of a child of similar age; and (4) the lack of motive to fabricate. Commonwealth v. Hanawalt, 419 Pa.Super. 411, 615 A.2d 432, 438 (1992). -5- P-21-CR-3001-2007 CP-21-CR-3009-2007 Considering all of the evidence, we are satisfied that the time, content and circumstances of relevant statements Kenzee gave to Patrolman Ryne and Crystal Deitch provide a sufficient indicia of reliability. We will allow those statements to be entered into evidence. However, because Deitch conducted a cold interview of Kenzee there are statements Kenzee made that are not relevant and admissible at trial. Those statements will be redacted by the court so that only relevant statements are admitted. For the foregoing reasons, the following order is entered. ORDER OF COURT IT IS ORDERED: AND NOW, this day of April, 2008, (1) The motion of the Commonwealth to take the testimony of Kenzee Smith outside of IS DENIED the courtroom, . (2) The motion of the Commonwealth to admit out-of-court statements made by IS GRANTED Kenzee to Patrolman Timothy Ryne, . (3) The motion of the Commonwealth to admit relevant out-of-court statements made IS GRANTED by Kenzee to Crystal Deitch, with the caveat that non-relevant parts of her statement will be redacted by the court. By the Court, Edgar B. Bayley, J. Christylee Peck, Esquire For the Commonwealth -6- P-21-CR-3001-2007 CP-21-CR-3009-2007 Arla Waller, Esquire For Defendant :sal -7- OMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-3001-2007 ROBERT SPOONER SMITH, JR. : CP-21-CR-3009-2007 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 April, 2008, (1) The motion of the Commonwealth to take the testimony of Kenzee Smith outside of IS DENIED the courtroom, . (2) The motion of the Commonwealth to admit out-of-court statements made by IS GRANTED Kenzee to Patrolman Timothy Ryne, . (3) The motion of the Commonwealth to admit relevant out-of-court statements made IS GRANTED by Kenzee to Crystal Deitch, with the caveat that non-relevant parts of her statement will be redacted by the court. By the Court, Edgar B. Bayley, J. Christylee Peck, Esquire For the Commonwealth Arla Waller, Esquire For Defendant :sal