Child Witness May Testify About Abuse
On remand from the U.S. Supreme Court, the Pennsylvania Supreme Court has affirmed the conviction of a father who twisted and broke his 7 month-old son’s arm. Com. v. Allshouse (January 20, 2012). A 4 year-old sibling witnessed the abuse and described it to a CYF case worker who interviewed her at her grandparents’ home a week after the injury. A couple of weeks later, the daughter repeated her story to a court psychologist.
The father was charged with aggravated assault, simple assault, child endangerment, reckless endangerment and criminal harassment. Before the criminal trial, the court held a hearing under the Tender Years Hearsay Act (“TYHA”), 42 Pa.C.S. 5985.1, to determine whether the child’s out-of-court statements to CYF and the psychologist could be used to convict the father of a crime. First, the trial court ruled that the child’s statements were “non-testimonial,” meaning that she did not realize that her statements would be used in court. Second, the trial court ruled that the statements were admissible under the TYHA because the context provided sufficient indicia of reliability. Based on these statements and other evidence, the father was convicted in 2005.
Father appealed to the Superior Court and the Pennsylvania Supreme Court, both of which affirmed the conviction. Later the U.S. Supreme Court vacated and remanded the case (without opinion) for further consideration in light of its decision in Michigan v. Bryant, 131 S.Ct. 1143 (2/28/11).
On remand, the Pennsylvania Supreme Court reviewed several recent precedents as to whether out-of-court statements are testimonial or non-testimonial. These cases have established a two pronged test: (1) whether the statements were made in the context of an ongoing emergency; and (2) whether the primary purpose of the interrogator is to establish past events relevant to criminal prosection. In this case, the Pa. Supreme Court held that there was an ongoing emergency because the victim was living with his twin brother, whom Father had accused of causing the injury; and although the CYF caseworker may have had mixed motives, his primary purpose in questioning the 4 year-old witness was not prosecution of the perpetrator but protection of the children.
The child’s subsequent statements to the psychologist were held to be testimonial in nature. However, since those statements were cumulative evidence not necessary to convict the father, the Court held the error harmless.
The trial court had applied a version of the TYHA that was amended after the date of the injury; and Father argued in his appeals that he was convicted under an ex post facto law. Specifically, he argued that the revised version of the TYHA made it easier to convict him by relaxing the evidentiary rules. The Pa. Supreme Court disagreed, holding that the amendment of the TYHA law did not relax the burden of proof or type of evidence needed to convict Father, but instead expanded the class of persons who were qualified to offer that evidence.
Five of the seven Justices joined the opinion to affirm; two Justices did not participate; and two joined in a concuring opinion.