Com. v. Hussey, J., Com. v. Hussey, J. No. 1701 EDA 2016

Background

James Hussey was convicted by a jury of two counts each of indecent assault of a child under 13 (18 Pa.C.S. §3126(a)(7)), endangering the welfare of a child (EWOC, 18 Pa.C.S. §4304(a)(1)), and two counts of corruption of a minor (merged at sentencing).
Crimes arose from two occasions when Appellant inappropriately touched his minor niece.
Sentenced to consecutive terms of 1–2 years for each indecent assault and EWOC count, for an aggregate 4–8 year term; COM counts merged.
Appellant raised seven issues on appeal challenging various evidentiary rulings (expert testimony limits, hearsay/admission of victim statements, cumulative evidence, business-records exclusion) and sentence merger.
Trial court denied post-sentence motion; Superior Court reviewed de novo where appropriate and for abuse-of-discretion on evidentiary matters, and affirmed.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Hussey)	Held
1. Preclusion of expert testimony about false confessions	Trial court correctly applied controlling Supreme Court precedent (Alicia) barring such expert testimony as invading jury credibility determinations.	Hussey argued Alicia should be overruled as violating due process and that he needed the expert to explain false confessions.	Court held it must follow Alicia; exclusion was proper and not reviewable by Superior Court.
2. Confrontation Clause / victim testifying then being excused and her statements repeated by others	Commonwealth treated victim testimony via alternative method properly and subsequent testimony by others was admissible; no preserved objection proving Confrontation violation.	Hussey argued his Confrontation rights were violated because victim testified first, was excused, and her statements were later reintroduced through witnesses who could not be meaningfully cross-examined.	Court found the argument undeveloped and waived for failure to cite record and preserve objection; claim denied.
3. Admission of mother and counselor testimony and the illustrated "Story Book" (Rule 403 / cumulative/prejudice)	Testimony and storybook were probative and admissible; within trial court’s discretion.	Hussey argued these were needlessly cumulative, improperly vouching for the victim, and unduly prejudicial under Pa.R.E. 403.	Court found Hussey’s briefing undeveloped and failed to identify specific cumulative/prejudicial testimony; claim waived and ruled no abuse of discretion shown.
4. Exclusion of Children & Youth Services (CYS) report — business records / multiple hearsay	Commonwealth objected as containing multiple layers of hearsay; admit only the CYF employee’s report portion under business-record exception, not layers quoting victim/others without exception.	Hussey argued the CYS report should be admitted as business record and/or for impeachment to show conflicting allegations implicating another person.	Court held business-record exception applied only to the preparer’s entries; multilayered hearsay statements by victim/family required separate hearsay exceptions which defense failed to show. Exclusion affirmed.
5. Limitation on defense expert (Dr. Dattilio) re: methods that produce false reports	Commonwealth objected the proposed testimony about investigative/interview methods and false reports exceeded §5920 scope (behavioral characteristics of victims); trial court sustained objection.	Hussey argued §5920 permits testimony about victim responses to questioning methods (i.e., iatrogenic/induced false reports).	Court upheld trial court’s limitation: Dr. Dattilio was limited to general behavioral characteristics of sexual-assault victims; proposed testimony about interview techniques for potentially non-victims fell outside that scope.
6. Sentencing merger: indecent assault should merge with EWOC	Commonwealth maintained offenses are distinct and do not merge because statutory elements differ.	Hussey argued indecent assault is a lesser-included offense of EWOC under the Jones “practical” approach and thus should merge.	Court applied 42 Pa.C.S. §9765 and Baldwin: merger requires one offense’s statutory elements be entirely subsumed in the other; because indecent assault contains an element (intent to arouse sexual desire) not in EWOC, sentences did not merge.

Key Cases Cited

Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014) (expert testimony on false confessions impermissibly invades jury’s credibility role)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause limits on testimonial hearsay)
Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (statutory merger under §9765 requires all elements of one offense be included in the other)
Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006) (plurality adopting a practical/hybrid approach to merger based on statutory elements and actual allegations)
Commonwealth v. Hardy, 918 A.2d 766 (Pa. Super. 2007) (appellate briefing standards; undeveloped arguments may be deemed waived)
Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc., 20 A.3d 468 (Pa. 2011) (intermediate appellate courts must follow Supreme Court precedent)