Com. v. Copenhaver, J.Com. v. Copenhaver, J.
Appellant, Joshua Robert Copenhaver, appeals from his judgment of sentence of fifteen to thirty years’ imprisonment for multiple sexual offenses against his daughters, K.G. and C.C. Counsel for Appellant filed a brief and an application to withdraw pursuant to Anders v. California, 386 U.S. 738 (1969), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In an unpublished decision on July 17, 2023, we held that Appellant‘s first issue, a challenge to the sufficiency of the evidence, was frivolous. However, we found Appellant‘s second issue—whether the court properly admitted K.G.‘s out-of-court statement about what C.C. told her under the “tender years” exception to the hearsay rule embodied in
The criminal information against Appellant alleged that between January 27, 2019 and January 7, 2021, he committed rape of a child, solicitation of rape of a child, involuntary deviate sexual intercourse (“IDSI“) with a minor, production of child pornography, solicitation of production of child pornography, depicting sex acts on a computer, solicitation to depict sex acts on a computer, indecent assault, corruption of minors and serving liquor or malt or brewed beverages to minors. Prior to trial, the Commonwealth filed a motion to admit statements that K.G. and C.C. made on February 11, 2021, during interviews at the York County Child Advocacy Center (“CAC“). K.G. and C.C. were eleven and twelve years old, respectively, at the time of these statements. A CAC forensic interviewer, Lauren Carter, questioned K.G. and C.C. separately, and both interviews were recorded on closed circuit television.
On May 14, 2021, the court convened an evidentiary hearing on the tender years issue. The CAC interviewer was the lone witness. After viewing a videotape of both interviews, the court admitted the interviewer‘s reports of the interviews into evidence. K.G. told the interviewer that C.C. said the following to K.G.: (1) Appellant and C.C. went down to the basement, where Appellant told C.C. to undress; (2) Appellant bribed C.C. to show him her body; (3) C.C. told her stepmother about Appellant‘s acts, but her stepmother did not believe her. Appellant contended that K.G.‘s statement to the interviewer about what C.C. told K.G. constituted inadmissible hearsay. N.T., 5/14/21, at 21-23. The Commonwealth responded that K.G.‘s statements were admissible under the tender years exception in Section 5895.1. Id. at 25. The court reasoned that the contents of K.G.‘s statement were reliable, and that her entire videotaped statement was admissible if she were called to testify during trial. Id. at 26-28. The court also ruled that C.C.‘s videotaped interview was admissible. Id. at 28.
In September 2021, Appellant proceeded to a jury trial in which C.C. and K.G. testified about Appellant‘s offenses. The jury also saw K.G.‘s and C.C.‘s videotaped statements to the CAC interviewer. Appellant‘s sister-in-law testified that Appellant became suicidal as a result of the criminal investigation into his offenses. She testified that Appellant told her that he purchased a shotgun to take his life or would drive his car off the road.
Appellant‘s February 6, 2024, brief raises a single issue, “Whether the trial court erred in granting the Commonwealth‘s motion to admit hearsay through the Tender Years exception where there were questions regarding double hearsay and relevance?”
Section 5985.1 of our Judicial Code, referred to as the “tender years” exception to the hearsay rule, provides as follows:
§ 5985.1. Admissibility of certain statements
(a) General rule.
(1) An out-of-court statement made by a child victim or witness, who at the time the statement was made was 122 years of age or younger, describing any of the offenses enumerated in paragraph (2) [including, inter alia,
18 Pa.C.S.A. § 6312(b) ], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(i) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
In its supplemental 1925(a) opinion, the trial court concluded that it properly admitted K.G.‘s videotaped interview with the CAC interviewer under Section 5985.1. Appellant challenges three statements within this interview:
(1) K.G.‘s statement to the interviewer that C.C. told K.G. that Appellant took C.C. down to the basement and told C.C. to undress;
(2) K.G.‘s statement to the interviewer that C.C. told K.G. that Appellant bribed C.C. to show him her body; and
(3) K.G.‘s statement to the interviewer that C.C. told K.G. that C.C. reported Appellant‘s conduct to her mother.
Examination of each of these three statements reveals that all contain multiple layers of hearsay. In addition to K.G.‘s statement having to satisfy Section
Statement (1) has three layers of hearsay: (a) K.G.‘s statement to the interviewer that (b) C.C. told K.G. that Appellant took C.C. down to the basement, and (c) Appellant told C.C. to undress. In finding statement (1) admissible, the trial court only analyzed the first layer of hearsay, K.G.‘s statement to the interviewer under Section 5985.1. The court determined that K.G. was eleven years old and appeared reliable during her videotaped statement. As a result, the court ruled that statement (1) was admissible in its entirety under Section 5985.1. N.T., 5/14/21, at 26-28 (tender years hearing). The court failed, however, to address whether the other layers of hearsay in statement (1) satisfied any hearsay exception. This oversight was significant because the second layer of hearsay, C.C.‘s statement to K.G.—the source of K.G.‘s statements to the CAC interviewer—was not shown to be
For the same reason, statement (2) was inadmissible. Statement (2) has two layers of hearsay; K.G.‘s videotaped statement to the CAC interviewer and C.C.‘s statement to K.G. that Appellant bribed C.C. to show him her body. The court only analyzed the admissibility of the first layer of hearsay, K.G.‘s statement to the interviewer, but failed to assess the admissibility of the second layer, C.C.‘s statement to K.G. and no demonstration was made that the statement otherwise qualified under any other hearsay exception. Nor was it admissible under Section 5985.1 due to the court‘s failure to assess the reliability of C.C.‘s statements to K.G. that are embedded within K.G.‘s videotaped statement.
Statement (3) also is inadmissible. It too has two levels of hearsay: (a) K.G.‘s statement to the interviewer that (b) C.C. told K.G. that C.C. reported Appellant‘s conduct to her mother. The court analyzed the admissibility of the first layer of hearsay, K.G.‘s statement to the interviewer, but failed to assess
Although the court abused its discretion by admitting into evidence the challenged statements within portions of K.G.‘s videotaped interview, we agree that any purported error was harmless.
The harmless error doctrine “reflects the reality that the accused is entitled to a fair trial, not a perfect trial.” Commonwealth v. Wilson, 286 A.3d 1288, 1300 (Pa. Super. 2022). Further, harmless error exists if the record demonstrates, inter alia, that “the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence,” or that “the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.” Id. An error “will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict.” Id. at 1300-01. This doctrine “recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Id.
Appellant argues in his February 6, 2024 brief that K.G.‘s videotaped statements were prejudicial because they could have swayed the jury to give more weight to C.C.‘s statements on the witness stand. Appellant‘s Brief at 15-16. We disagree. Statements (1) and (2) were cumulative of and substantially similar to C.C.‘s untainted testimony during trial that she told K.G. about Appellant‘s acts, Appellant made her take her clothes off, Appellant photographed her in the nude, and Appellant promised to buy her things if she complied. N.T., 9/13/21, at 91-92, 99, 102. In addition, Statements (1) and (2) were substantially similar to K.G.‘s untainted testimony during trial that K.G. saw Appellant direct C.C. to remove her clothes, and C.C. told K.G. that Appellant touched C.C. in inappropriate places. Id. at 121-123. Statement (3) is cumulative of and substantially similar to other untainted testimony by C.C. during trial that she told her mother about Appellant‘s conduct. Id. at 109.
Other evidence unrelated to K.G.‘s statements provided overwhelming evidence of Appellant‘s guilt. Appellant‘s sister-in-law and father-in-law both testified that Appellant threatened to kill himself as a result of the criminal investigation, and Appellant‘s father-in-law discovered a loaded shotgun in Appellant‘s car. A detective testified that Appellant admitted taking nude photographs of his daughters but then deleting them from his phone.
For these reasons, Appellant‘s tender years issue does not entitle him to relief. Accordingly, we affirm Appellant‘s judgment of sentence.
Judgment of sentence affirmed. Application for second extension of time within which to file Appellant‘s brief granted.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 5/22/2024