T.D. v. Reese, J.
516 MDA 2017
| Pa. Super. Ct. | Dec 20, 2017Background
- T.D. filed a petition under Pennsylvania’s Protection of Victims of Sexual Violence or Intimidation Act on behalf of his then-10-year-old daughter, C.D., alleging that Jonathan Reese had touched C.D. "down below" during visits with her mother.
- A temporary protection order issued after an ex parte hearing; a full hearing was scheduled and continued twice on consent of Reese’s counsel due to counsel’s attachments in other counties.
- T.D. invoked the Tender Years Exception to admit C.D.’s out-of-court statements; the trial court conducted an in camera proceeding, deemed C.D. unavailable to testify, and permitted admission of the CAC forensic interview and related testimony in lieu of live testimony.
- At the March 8, 2017 hearing the court heard testimony from T.D., the CAC forensic interviewer, and C.D.’s learning support teacher; Reese and C.D.’s mother testified for the defense.
- The court allowed the CAC interview video to be played (and later accepted into the record), over defense objection; defense had received a copy and cross‑examined the interviewer.
- The court entered a three‑year final Sexual Violence Protection Order (SVPO) prohibiting Reese from contacting C.D.; Reese appealed raising four issues (continuances, Tender Years procedure, video admission, sufficiency/weight of evidence).
Issues
| Issue | Plaintiff's Argument (T.D.) | Defendant's Argument (Reese) | Held |
|---|---|---|---|
| 1. Continuances | Not directly argued by plaintiff; continuances occurred in record | Trial court improperly granted two continuances in favor of T.D. over defense objection | Waived on appeal due to missing portions of certified record; cannot review |
| 2. Tender Years Exception procedure | Provided notice of forensic interview and proceeded after in camera finding of reliability; C.D. deemed unavailable | Improper use of subsection; failed to follow statutory notice and unavailability requirements | Waived for appellate review (missing transcript); trial court nonetheless had notice and defense received interview copy |
| 3. Admission of CAC video | Video was an admissible substitute for live testimony after in camera review; interviewer testified and was cross-examined | Video was not formally offered into evidence and should not have been played/admitted | No abuse of discretion: defense had copy, cross-examined interviewer, court reviewed video and later accepted it into evidence |
| 4. Sufficiency/weight of evidence for SVPO | C.D.’s statements to father, CAC interviewer, and teacher supported finding of sexual violence and continued risk | Defense witnesses denied observing abuse; argued child’s communication disorder undermined reliability | Affirmed: preponderance supported SVPO; court as factfinder properly credited plaintiff’s witnesses |
Key Cases Cited
- Fidler v. Cunningham-Small, 871 A.2d 231 (Pa. Super. 2005) (discussing amendment allowing Tender Years Act use in civil proceedings)
- Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005) (explaining Tender Years Exception rationale for admitting child out-of-court statements)
- Commonwealth v. Walker, 878 A.2d 887 (Pa. Super. 2005) (appellate court limited to certified record; waiver for missing transcript)
- Lundy v. Manchel, 865 A.2d 850 (Pa. Super. 2004) (same waiver principle applies in civil appeals)
- Gutteridge v. J3 Energy Grp., Inc., 165 A.3d 908 (Pa. Super. 2017) (trial court credibility determinations afforded deference on appeal)
- Ecksel v. Orleans Constr. Co., 519 A.2d 1021 (Pa. Super. 1986) (crediting witness credibility falls to factfinder)