Commonwealth v. Allshouse

consumers) facility of owners to new exposing charged Furthermore, I have otherwise ob- litigation. class of served: grounded decisions are records indi

Our common-law advocacy by parties shaped vidual cases and the adjudica legislative process, records. those Unlike is to cast a narrow focus on matters tory process structured in a directed by litigants highly framed before legislative fashion. The broader tools available to the making policy judgments, including branch in social are availability comprehensive investigations, discussed Herdrich, 2143, v. 211, 221-22, Pegram 120 S.Ct. U.S. (2000). 147 L.Ed.2d 164 Am., Inc.,

Bugosh v. 277, 19, I.U.N. 601 Pa. 298 n. 971 A.2d (2009) J., joined by 1240 n. 19 (Saylor, dissenting, C.J.). Castille, balance, I support majority’s degree

On decision to the any remedy it holds that for economic loss associated with a owner’s facility locating breach its duties under the One legislative Act is best suited to consideration. Call

985 A.2d 847 Pennsylvania, Appellee COMMONWEALTH of ALLSHOUSE, Jr., Ricky Appellant. Lee Supreme Pennsylvania. Court of

Argued March 2009.

Decided Dec. Chontos, Chontos, P.C., David B. Chontos & for Lee Ricky Allshouse, Jr. Burkett,

Jeffrey D. County Attorney’s Jefferson District Office, Pennsylvania. for Commonwealth of Phil- Epstein, Kairys, Rudovsky, Messing Feinberg,

Jules & Bluestine, adelphia, Boyers Marissa Defender Association of for Amicus Curiae Defender Association Phila- Philadelphia, delphia. CASTILLE, C.J., SAYLOR, EAKIN, BAER,

BEFORE: TODD, GREENSPAN, JJ.

OPINION Justice TODD. Allshouse, 2007 order of

Ricky appeals April Lee Jr. judg- which affirmed the Superior Pennsylvania, County Court of imposed ment of sentence Jefferson simple his convictions of assault1 and following Common Pleas the welfare of a child.2 For the reasons set forth endangering below, we affirm. (“Mother”) 20, 2004, M.R. were May Appellant and

On with their three they home shared children. arguing room, from the and Mother was Appellant shouting living was sons, The couple’s in the kitchen. 7-month-old twin J.A. and room, M.A., in a in the and their playpen living 4-year- were A.A., daughter, playing nearby. 8-year-old old Mother’s son, R.R., home, also lived in the already who had left for that, at reported police point, school. Mother one she sat on a “squeak” Appellant living heard recliner and, later, him up room minutes she heard from the get Trial, 9/19/05, then crying. recliner. She heard J.A. N.T. room, 46-47. As Mother ran to the she living passed Appel- lant, heading upstairs. who was Mother observed that A.A. in the playpen, holding lap. was now J.A.’s head on her When J.A., picked up Mother “his arm backwards.” Id. at flopped room, emergency 147. Mother took J.A. to the where it was that he suffered a spiral right determined had fracture to the caused by sharp twisting humerous and severe of the arm. Hospital immediately County officials contacted Jefferson (“CYS”), and Youth Children Services and CYS caseworker arrived at the with Dr. hospital spoke Craig John Geist Burke, physician who treated Dr. emergency-room J.A. fracture opined spiral Burke of J.A.’s arm indicated Mother, abuse. then with and advised her that spoke Geist family would need to be removed from the home pending J.A. Mother investigation. agreed siblings J.A. and his would paternal grandparents. with their stay 2701(a)(1). § 1. 18 Pa.C.S.A. §

2. 18 Pa.C.S.A. 27, 2004, “possi- to Geist that Appellant suggested May On 9/16/05, Hearing, N.T. bly injury [J.A.].” had caused [A.A.] day, pater- that same Geist went to A.A.’s Accordingly, at 9.3 with A.A. and A.A. sat speak nal home to Geist grandparents’ house, while A.A.’s porch and talked on the front During were inside. siblings, and others grandparents, interview, that had caused J.A.’s Appellant A.A. told Geist A.A., with his spoke After his interview with Geist injury.4 to an evaluation of agreed arrange and the two supervisor, Ryen a Dr. interviewed by Ryen, psychologist. A.A. Dr. Allen interview, again A.A. during A.A. on June and Appellant injury.5 J.A.’s implicated Trial, 9/19/05, (Geist spoke at 128 testified that he with

3. also N.T. See 27, 2004, Appellant Appellant May which time stated that he on injury). A.A.had caused J.A.’s believed by attorney, response the district Geist to direct examination the events of the interview as follows: described being I if she could remember her brother had asked [Geist]: [A.A.] stated, yes, she did. I asked her if her other brother had hurt. She injury. her if it. She said no. I asked her mother caused caused I if caused it. She said no. I asked her She said no. asked she [her] injury. got Ricky She scared and kind of if her father caused queasy Q: yes. and stated you physically say What did observe to she was afraid? shaking. body language. She started Closed She was look- [Geist]: ing anyone her around to see if heard statement. Q: right. All Go on. recall, happened I asked her what she could what to her [Geist]: She that her father had done it. I asked her if she brother. stated got injury. put could remember how She stated that —she [J.A.] my [Appellant] grabbed right her hand on arm and said her [sic] pulled. get with the elbow and I didn't into much else her above outside, stopped [Appellant's] because one of brothers came and she talking. 9/16/05, Hearing, N.T. at 11. concerning Ryen 5. Dr. recounted his interview with A.A. the incident J.A., questioning by attorney, response the district as follows: with to give you specific quote, Ryen]: I’m I can a but I said not sure [Dr. your something something something happen brother or like did to open-ended like kind of that. Q: happened you you the Court—what from there after And can tell question? asked me, "Daddy Ryen]: immediately hurt him”. And I She said to [Dr. proceeded her father had her more about that. She to describe asked been, and, grabbed yanked quote, quote, and arm. [J.A.’s] mad Q: by explain Did what she meant those statements? she 11, 2004, On June was arrested and with Appellant charged assault, assault, aggravated simple endangering the welfare of child, endangerment, reckless and harassment. Septem- On 16, 2005, ber the trial court a hearing pursuant conducted (“TYHA”), the Tender Hearsay Years Act 42 Pa.C.S.A. 5985.1, § to determine whether given by statements A.A. Ryen, Geist and Dr. admittedly hearsay, were admissible under the tender years exception to the hearsay rule.6 Under TYHA, certain out-of-court statements made a child victim may be witness admissible at trial if the child either witness, testifies at the or is proceeding unavailable as a and the court finds “that the evidence is relevant time, content and circumstances of the statement provide 5985.1(a)(1). sufficient indicia of reliability.” § 42 Pa.C.S.A. meant, and, know, Ryen]: you I asked her what she I have a lot TDr. office, properties my and she baby demonstrated on the doll on, talking what she was about. And later I ques- asked her some tions, doll, and she had me baby demonstrate it on her. She was the adult, and I was the Q: and she showed me Iwhat should do. leading you through And was she it? Ryen]: Yes. [Dr. Q: you Could describe her demonstration to the Court? know, Ryen]: Basically, you [Dr. both. What she had me do was grab by her the elbow and kind of lift and twist at the same time. Kind of like baby that. She did that on the doll and instructed me if I way, right. went that it finally got right. wasn’t And I it Q: you right? And she told that it was Ryen]: [Dr. Q: Yes. point Did she describe at baby how the had reacted? Ryen]: baby began She said cry to and scream. LDr. Q. And physical what else did she describe about her observations at that time? Ryen]: baby [Dr. That the stop crying; wouldn't that father tried to down, pick baby up get baby quiet but he wouldn't quiet down. And that some time later on—I'm not certain if the on, someplace mother was in the house—sometime later the mother baby hospital. took the to the interview, describing Id. at 31-32. Ryen his Dr. also noted that it separated was unusual that A.A. grandparents from her "without invita- interview, during minutes, tion” approximately and that after ten sitting lap A.A. was on his snuggling and "kind of in.” Id. at 29-30. Pennsylvania's 6. Rule 802 of provides: "Hearsay Rules of Evidence is rules, except provided by not admissible by pre- these other rules Court, by Pennsylvania scribed Supreme statute.” Pa.R.E. Washington, the statements under Analyzing Crawford (2004), the trial 158 L.Ed.2d 177 541 U.S. Ryen noted that A.A.’s statements to Geist and Dr. court first nontestimonial statements fell “in between” testimonial and Hearing, N.T. questioning.” “because we do have some 9/16/05, explained, at 61. The court however: it’s nontestimonial for these basis going [sic].

I’m find objective four-year-old I have to look at what an think we Geist, And as he would think. Mr. average intelligence a uniform carries a today, he does not have on but appears not in the work. badge, badge police but a sense in the office to Ryen psychological appointment Dr. has that later these be believe statements would used Court. I do not think for this that she could certainly four-year-old make the determination that it would be available for use later at trial.

Id. at 61-62. The trial court determined that A.A.’s state- Dr. Ryen requirements ments to Geist and satisfied the rule, and, years exception hearsay tender to the under Craw- be admissible at trial. ford, would 19, 2005, September Appellant

On filed a motion for recon- sideration, asserting A.A.’s statements constituted testimonial hearsay was inadmissible under Following Crawford. motion, the trial argument, judge reiterating denied his that, whether opinion determining questioning should be nature, deemed testimonial have to look at it from the “you 4-year-old’s point reliability of view because the concern is 9/19/05, 20, that N.T. at 3. regard.” Hearing, September On 2005, jury Appellant simple a convicted of assault and endan- child; the welfare of a the remain- gering acquitted he was of ing charges. 2, 2005, November was sentenced to one to Appellant

On fines, costs, years prison, plus Appel- two restitution. motion, and a on the motion post-sentence hearing lant filed 12, 9, 2006, the trial January was held on 2006. On March motion to the extent he Appellant’s sought court denied 70 of on his child conviction.7

judgment acquittal endangerment 3, 2006, his April Appellant appealed judgment On sentence Court, alia, the trial Superior challenging, to the inter court’s Dr. Ryen admission of A.A.’s statements to Geist and at trial. Court, to the issues regard presently With before this agreed Court with the trial court that A.A.’s Superior state- nature, were ments Geist nontestimonial and thus admis- concluded, The Superior sible under Court howev- Crawford. er, determine, record, it could not based on the whether statements to Dr. were “it Ryen A.A.’s testimonial because is impossible Ryen’s to determine what Dr. primary purpose was Allshouse, conducting the interview.” Commonwealth v. 1215, Nevertheless, 1224 (Pa.Super.2007). A.2d the Supe- opined rior that it was unnecessary Court to determine wheth- because, er statements to Dr. Ryen A.A.’s were testimonial were, if they even admission of the statements was harmless Ryen’s testimony error since Dr. merely cumulative of testimony, other admitted and there was properly overwhelm- ing “untainted evidence” to support jury’s verdict. Id. at 1224-25. declined to Superior Court address addi- Appellant’s

tional that the trial argument court’s application TYHA, version of the amended which that an out-of- provides court statement of a victim child or witness under age is alia, if, admissible at trial inter the child is unavailable as a and the trial witness court determines the circumstances surrounding provide statement sufficient indicia of reliabil- ity, violated the ex prohibition against post facto laws. The that, did, even Superior Court determined if it the trial court could have admitted A.A.’s statements as nontestimonial hear- Roberts, under say Ohio 448 U.S. 100 S.Ct. (1980), L.Ed.2d 597 based on a finding testimony A.A.’s particularized contained guarantees trustworthiness. The Superior ultimately affirmed Appellant’s judgment in a published opinion sentence on April granted Appellant reversing 7. The trial court relief in a restitution payable $160 award of to CYS.

71 Thereafter, for of ap- filed a allowance Appellant petition 22, 2008, and, granted Appellant’s this Court on October peal, following to the issues: respect with petition decision conflict with U.S. Superior 1. Does Court’s clause there- on confrontation Supreme precedent Court Superior conflict with another Court by creating direct decision?

2. this Court’s harmless Superior disregard Did to dis- precedent by allowing error Commonwealth error a two- proving through its burden of harmless charge sentence footnote? the reach Superior

3. Did the Court decision misconstrue Roberts, 56, 2531, 100 S.Ct. 65 L.Ed.2d of Ohio v. U.S. (1980), insulate Tender thereby Pennsylvania’s Hearsay post challenge? Years Act from an ex facto (2008) Allshouse, 600, Pa. v. 959 A.2d 903 Commonwealth (order). oral in this matter on argument This Court heard 4, March Amendment to the United States Sixth Constitution all the accused prosecutions, criminal

guarantees “[i]n ... the witnesses enjoy right shall to be confronted with Const., him.” amend. VI. This constitutional against U.S. is known as the Confrontation Clause.8 protection Roberts, Court, supra, Supreme States Ohio United not bar of an held that the Confrontation Clause did admission defendant, a criminal against unavailable witness’s statement the statement was surrounded indicia provided “adequate 66, 100 indicia reliability.” 448 U.S. at S.Ct. 2531. Such considered either fits within a testimony being exist when contains “firmly hearsay exception,” “particularized rooted of trustworthiness.” Id. guarantees protection expressly in Article 9 of the

8. The is contained Section Although Appellant Pennsylvania notes in his brief that Constitution. language "Pennsylvania's [as has the same confrontation constitution n.8, argument Crawford]," Appellant’s presents he no based Brief at 27 Thus, express opinion whether Article Section 9. we no as to on Appellant would be entitled to relief thereunder. Roberts, More than two decades after its decision Court, in Washington, supra, overruled Supreme Crawford so, doing its Roberts decision. Court criti- Crawford reliability” cized the Roberts “indicia of test as a departure principles from the in two re- Confrontation Clause spects:

First, it is too broad: It the same applies analysis mode whether or not the hearsay parte testimony. consists of ex This often results in close constitutional scrutiny cases that are far from the removed core concerns of the Clause. time, however, At the same the test is It too narrow: admits statements that do consist of ex parte testimony upon a mere finding reliability. This malleable standard often to protect against fails paradigmatic confrontation viola- tions.

Crawford, 541 U.S. S.Ct. 1354 (emphasis original). that, explained while it had “no doubt Crawford that the courts below were acting in utmost faith” when good finding reliability, Framers ...

[t]he would not have been content indulge assumption. this knew They judges, like other govern- officers, ment not always could be trusted to safeguard the rights of the people; likes of the dread Jeffreys Lord were not too yet distant a memory. They were loath to much judicial leave too discretion in By hands. replacing- categorical guarantees constitutional with open-ended bal- tests, ancing we do violence to their design. Vague stan- and, dards are manipulate, while that might be small concern in one, run-of-the-mill assault prosecutions like this eye Framers had an toward politically charged cases like Raleigh’s-great state trials where the impartiality of even those at the highest levels of the judiciary might not be ’ so clear. It is difficult to imagine Roberts providing any meaningful protection those circumstances. 67-68, 124

Id. at S.Ct. 1354. Accordingly, Court held Confrontation Crawford prohibits Clause out-of-court testimonial by statements a wit- ness, regardless of whether the statements are deemed reli- (1) court, unavailable, able the trial unless the witness is (2) and the defendant had a to cross- prior opportunity examine the witness: issue, hearsay wholly nontestimonial is at it is consis-

Where tent with the Framers’ to afford the States design flexibility Roberts, in their law—as does development hearsay an approach exempted as would such statements from Confrontation testimo- scrutiny altogether. Clause Where issue, however, nial evidence is at Amendment Sixth demands required: what the common law unavailability prior and a cross-examination. opportunity for added). 68, 124 Id. at 1354 (emphasis declined, however, expressly explain Court to Craivford the distinction between testimonial and nontestimonial state- ments, stating leave for another day any spell “[w]e effort to out a comprehensive definition of ‘testimonial.’ Whatever else covers, the term it at a minimum applies prior testimony to at preliminary before a hearing, grand jury, or at a former trial; (footnote omitted). and to police interrogations.” Id.

Two years decision, after the Supreme Court’s the Crawford had the opportunity clarify to the difference between testimonial and nontestimonial in hearsay Davis v. Washing- ton, (2006). 547 U.S. 126 S.Ct. 165 L.Ed.2d 224 At in issue the consolidated appeal9 Davis were two separate statements. The first was a statement made a victim of spousal abuse to a 911 operator; second was a wife’s statement to police officers dispatched investigate a domes- disturbance, tic set forth in a battery complaint. In finding nontestimonial,10 statement to the 911 operator but the Indiana, appeal 9. Davis' was consolidated with the case of Hammon v. (Ind.2005). 829 N.E.2d 444 determining recording that the of the 911 call was not testimonial evidence, the Davis Court noted: officers, operators If 911 they are not law themselves enforcement may agents they at least be of law enforcement when conduct (and interrogations purposes opinion of 911 callers. For of this deciding point), without we consider their acts be acts of the ..., therefore, police. holding today As our makes it Crawford the Davis testimonial, to the officers police wife’s statement wheth- following inquiries determining forth the for Court set are testimonial or nontestimonial: er statements are when made in the course of Statements nontestimonial indicat- interrogation objectively under circumstances police interrogation is to ing primary purpose ongoing emergency. assistance to meet an police enable objectively They are testimonial when circumstances and that ongoing emergency, indicate that there is no such of the is to establish or primary purpose interrogation criminal events relevant to later prove past potentially prosecution.

Id. is nontestimoni- Thus, 126 S.Ct. 2266. a statement under the first Davis al if it is made with the inquiry purpose police ongoing emergency. to meet an Converse- enabling is testimonial under ly, inquiry a statement second (1) Davis emergency; if: it was made in absence of an ongoing (2) the primary objective interrogation question- prove that resulted the statement was to establish or ing these Davis inquiries events. are past Collectively, commonly “primary purpose” referred to as the test. acknowledged

The Court the two described inquiries above were not exhaustive and did not address all possible interroga- scenarios —such as situations which do not involve tions —in which a determination of whether a statement is required, testimonial or nontestimonial is explaining: refers to because ... the state- holding interrogations Our in the cases before us the presently products ments are of interrogations gener- some circumstances tend to —which however, responses. ate testimonial This is not to imply, in the of any interrogation that statements made absence necessarily are nontestimonial. The Framers were no more from cross-examination testi- willing exempt volunteered unnecessary to consider whether and when statements made to personnel than are “testimonial.” someone other law enforcement 2, Davis, 547 U.S. at 823 n. 126 S.Ct. 2266.

75 or answers to than were to mony open-ended questions they answers to detailed exempt interrogation. 1, 126 n.

Id. at 822 S.Ct. 2266. Davis, however, After courts have struggled Crawford the of vitality regard with Roberts with to nontestimonial above, hearsay. suggested As noted the Court Crawford hearsay nontestimonial statements be “from might exempt 68, at scrutiny altogether.” Confrontation Clause 541 U.S. Davis, 124 the S.Ct. 1354. Court characterized Roberts been “overruled” and having noted Confrontation hearsay focus on testimonial must be viewed as Clause’s “core,” not its but its 547 marking merely perimeter. U.S. 824, Lastly, emphatically, 126 S.Ct. 2266. and most Whor- 406, 1173, ton v. 549 127 1 Bockting, U.S. S.Ct. 167 L.Ed.2d Court, (2007), addressing retroactivity Craw- decision, explained: overruled Roberts because ford “Crawford the original understanding Roberts was inconsistent with 419, meaning Confrontation Clause.” 549 U.S. at 127 1173. Noting S.Ct. elimination Confronta- “Crawford’s tion protection against Clause admission of unreliable out- statements,” of-court nontestimonial sounded the death knell of Roberts: Roberts,

Under an out-of-court nontestimonial statement not subject prior cross-examination could not be admitted judicial without a determination regarding reliability. Un- hand, der on the Crawford, other Confrontation Clause application has no to such statements and therefore permits their even if lack they reliability. admission indicia of 420, 127 Id. at courts,

These a number of expressions notwithstanding, the Third Circuit Court of continue to including Appeals, apply admissibility the Roberts standard to determine the of nontes- See, Horn, timonial statements. Albrecht hearsay e.g., v. (3d Cir.2007) (admissibility

F.3d of nontestimonial Camacho, Roberts); evidence governed State Conn. (2007) (stating 924 A.2d that nontestimonial hearsay may against statements still be admitted as evidence of the they satisfy prongs in a criminal trial if both

an accused (2d 125, 129 test); Fed.Appx. Myton, Roberts U.S. Cir.2007) nontestimonial, that out- (holding admissibility are evaluated under the test” of “two-part of-court statements Roberts).

Nevertheless, case, in the instant concedes Appellant is whether the statements are question that the threshold testimonial, because, nontestimonial, if are “the the statements restriction on their introduction places confrontation clause no ” hearsay limitations evidence.’ except upon for ‘traditional Davis, 821, 126 Brief at 35 at Appellant’s (citing U.S. 2266). Thus, we turn to the merits of the issues on which we review. granted court, in admitting first contends that the trial at

Appellant A.A., trial the statements of who had not testified was not and cross-examined, his un- rights violated Confrontation Clause court, der and Davis. The trial that determining Crawford nontestimonial, A.A.’s statements to and Dr. were Ryen Geist focused on the language quoted testimonial Crawford statements included those made under circumstances that objective lead an reasonably would witness to believe his or her statement would be available for use at a later objective four-year- trial. The Court then concluded that an old of and average intelligence existing under circum- stances would not consider that her statements later might fact, be used when he against [Appellant]. talked to jeans on her own front Geist was blue porch, wearing [A.A.] and never indicated to her his the nature of suspicions, his job, or her potential against [Appellant]. role as witness Ryen Dr. also wore casual no clothing badge and of authori- visit; ty; apprise he did not of their purpose [A.A.] and offered no indication that her statements could later be proceeded engage used court. He then [A.A.] that no play typical four-year-old conversation would being designed to elicit information. interpret inculpatory (record omitted). 5/5/06, Trial Court citations Opinion, We note that the trial court did not have the benefit of the in at the time it decision Davis Supreme Court’s United States 19, 2006. Davis was decided on June its as opinion, authored Davis, did, however, have the benefit of Superior The Court A.A.’s with to and, holding respect in the trial court’s affirming Geist, language that the of Davis opined statement to in must all be considered that a number of factors implies testimonial; the use of a statement is determining whether that both of the test must prongs the word “and” indicates can considered testimoni- be satisfied before a statement be half of the Davis test deter- satisfying al. In first examined being given whether the statement mining one factor needs to be emergency, only an during ongoing being- relation of the statement temporal examined—the wrong examined to the the statement describes. test, in of the Davis

Satisfying primary purpose prong contrast, examination of two factors. first encompasses objective is the intent of the factor that must be considered giving intent of the objective questioner declarant and the Furthermore, being and the statement considered. eliciting including the statement was given, the environment which formalities, also be considered.... the attendant must sum, be a variant purpose test seems to primary Court’s the circumstances test with totality parameters that are more defined. specifically (citations omitted).

Allshouse, at 1221 924 A.2d Geist, the Superior to A.A.’s statements regard With then concluded: interview the facts and circumstances of this Examining the conclusion that A.A.’s statements are admis leads us to hearsay should a Crawford, sible as non-testimonial under recognize we Geist prove applicable.[11] While exception assault, after the days the interview a full seven conducted hearsay excep- specific that a Superior 11. The Court did not determine rather, noted in our discussion of the trial court's applied; tion to Geist under the amended version of of A.A.’sstatement admission TYHA, have admitted A.A.’s infra, it concluded that the trial court could finding they partic- a contained under Roberts based on statements guarantees ularized of trustworthiness. the intentions of Geist and A.A. as well as the attendant are, environmental factors indicate A.A.’s statements in- deed, non-testimonial nature.

Presently, appellant dispute does not Geist’s contention only that he wanted to interview A.A. appellant after ac- J.A., the young girl harming cused and it would be absurd to assume A.A. had give intended to statements for legal use proceeding. Geist’s failure to interview A.A. when he had her under his supervision [exclusive control when he first A.A. transported siblings and her grandparents’ their also home] indicates Geist’s contention and, hence, is credible there is little question pri- Geist’s mary purpose in A.A. interviewing was not to establish past events which potentially would be relevant in a criminal trial, but to ensure both A.A. and her siblings’ welfare was secure while they remained in the of custody her grandpar- thereto, ents. In addition Geist did not report A.A.’s state- but, rather, ments to law enforcement notified his CYS interview, supervisor them after the though even he had option reporting incident to the police. Furthermore, the environment surrounding interview does not indicate A.A.’s statements were testimonial. As above, noted casually Geist was dressed and the interview was conducted on neutral ground. Additionally, Geist had no over control the interviewing environment —as in- his quires were cut short after appellant’s brother intervened. There was simply no semblance of formality during interview. sum, we do not view the Supreme Court’s primary test as

purpose being reliant on the solely temporal relation- between the ship statement and the wrong the statement and, instead, describes view the test as encompassing the broader range applied factors in Davis. Inasmuch as this case, is we conclude testimony Geist’s is nontestimonial. Allshouse, (footnotes 924 A.2d at 1222-23 and citations omit- ted).

Predictably, Appellant contends that A.A.’s statements to both and Dr. Ryen Geist were testimonial under Davis. Ap- any ongoing emergency, there was no first asserts pellant with removal from that existed ended J.A.’s emergency further maintains May Appellant home on 2004. family 27, May to A.A. on posed that the Geist questions recreate past to have the child witness designed solely “were Ryen’s with Dr. events,” associated “purpose medicinal.” investigative Appel- 100% and 0% interview was that, avers to the Finally, Appellant lant’s Brief be with a statement should formality associated extent A.A.’s statement to considered, surrounding the circumstances the fact that introduced himself Geist specifically, Geist— her, her with and shook A.A., speak her permission asked of the interview purpose a conclusion that the support hand — Id. at 43.12 was investigative. above, A.A.’s statement to whether considering

As noted Davis, the consid- Superior testimonial under Geist was the state- of the two Davis inquiries ered the first —whether stated during ongoing emergency an given ment was —and a full the interview seven that it Geist conducted “recognize[d] Allshouse, at 1222. Howev- 924 A.2d after the assault.” days as to er, question further noted that there was “some the court her way by grandpar- abused some being whether A.A. was and, therefore, an family and other members of ents ongoing emergency that an was could be made argument omitted). (emphasis Id. at n. 15 present.” Pennsyl- Appellant by the jointA was filed on behalf of 12. amicus brief Lawyers, the Defender Associa- of Criminal Defense vania Association Pennsylva- Philadelphia, Public Defender Association of of and the tion “Amici”). applying “primary (collectively, argue that in Amici nia Davis, obligated to consider whether there purpose” a court is test purposes “multiple primary purposes,” and if even one of those existed investigation, in a criminal was to obtain information for use Brief 4. resulting deemed testimonial. Amicus at statement must be interviewing in argue of child witness Amici further that “the structure interviewing by nationally Pennsylvania demonstrates that forensic and nurses, personnel primary purpose has the social workers and medical Finally, investigation.” Amici maintain that “the test for Id. of criminal excluding hearsay and the Confrontation Guarantee under Crawford light vary age Id. at 5. In of our with the of the declarant.” does not nontestimonial under A.A.'s statement to Geist was determination that arguments. infra, inquiry, we do not address these the first Davis see second Davis to the regard inquiry, Superior With Court further that concluded A.A.’s statement to Geist was not (a) testimonial intent during because Geist’s his interview with testimony A.A. was not to obtain for purpose of a criminal but to ensure the proceeding, safety of J.A. and his siblings, (b) the and environment and circumstances surrounding A.A.’s statement were informal and not of an suggestive investigato- ry however, interview. Appellant, that alleges Superior of the primary purpose test of Davis application Court’s “injection flawed as a result of its of the declarant’s intent” into the factors considered under that Appellant’s test. Brief at 54.

We conclude that A.A.’s statement to Geist was nontestimo- nial under Davis because it was given during an ongoing that, emergency. Specifically, we note although Appellant asserts that any ongoing emergency ended with J.A.’s removal 20, 2004, from the home on family May the validity of this assertion is premised on Appellant having caused injury. J.A.’s 27, 2004, May however, On Appellant told Geist that he A.A. Trial, believed had caused injury. 9/19/05, J.A.’s N.T. at It was thus incumbent upon Geist to immediately inves- further, tigate because, the matter time, at that A.A. and J.A. together home, were in their grandparents’ where A.A. could Indeed, do further harm to J.A. Geist A.A. interviewed day same that Appellant told Geist he believed A.A. caused injury. J.A.’s the first inquiry under Davis con recognize

We templates nontestimonial statements are those made in order police “to enable assistance to meet an ongoing emer gency,” that Geist is a police not officer. As previously the Davis Court construed the acts of 911 noted, however, operators to be that, acts on the police basis even if 911 operators were officers, not themselves law enforcement they “may at least be agents law enforcement when they conduct Davis, interrogations of 911 callers.” U.S. that,

S.Ct. 2266. Similarly, we conclude in case, the instant Geist, who was contacted by hospital officials when J.A. was room, into brought emergency and who was responsible

81 of removal from the ensuring safety upon for J.A. J.A.’s home, an of law agent should be construed to be family analysis. for of a Davis Common- purposes enforcement Cf. (1987) Ramos, A.2d Pa.Super. v. wealth curiam) (in that a defendant should have (per determining warnings questioning, Miranda to while given prior been court noted that agent, a CYS police custody, children from providing protection its for fulfilling purpose abuse, a treatment but is the only agency, is not “CYS Protective system arm of statewide Child investigating Services.”). circumstances, these we hold that A.A.’s Under in the context of an given ongoing statement to Geist was thus, Davis, under nontestimonial. was emergency, our light Superior properly conclusion Court statement to was an given during determined A.A.’s Geist and, therefore, ongoing emergency, was nontestimonial under Davis, we inquiry analyze the first need not A.A.’s state- ment under the second Davis whether the inquiry, namely, primary purpose interrogation prove was to establish or potentially prosecution. events relevant to later criminal past next consider whether A.A.’s statement to Dr. We Ryen was testimonial under Davis. statement Unlike A.A.’s Geist, we cannot conclude that A.A’s to Dr. Ryen statement given during ongoing was an as Dr. inter emergency, Ryen’s 8, 2004, view with A.A. took on place nearly June two weeks after to Geist that A.A. have been Appellant suggested may injuries. for responsible J.A.’s While we would thus need to inquiry address the second Davis with to A.A.’s state respect Ryen, agree, ment to Dr. we do not because we as the Superior opined, any possible admitting error to Dr. Ryen A.A.’s statement harmless because state Geist, merely ment was cumulative of A.A.’s statement was properly which we have concluded admitted. appellate

It is well settled that “an court has the any to affirm a valid or verdict for reason ability judgment Parker, v. 591 Pa. appearing as of record.” Commonwealth (2007) 526, 534-35, (citing 919 A.2d Commonwealth 82

Katze, (1995) 416, in (Opinion Support 540 Pa. 658 A.2d 345 v. Thorn- Affirmance)). Commonwealth in explained As we ton, technique appellate doctrine of harmless error is a

[t]he judicial designed economy by obviating review to advance necessity the for a retrial where the court is appellate beyond convinced that a trial error was harmless a reason- able doubt. Its is on the well-settled purpose premised that defendant is entitled to a fair trial but proposition “[a] not a one.” perfect (1981). 266, 248, may

494 Pa. 431 A.2d This Court affirm a based on harmless error even if such an judgment is not argument by parties.13 raised argues Appellant Superior improperly engaged that Court in a analysis regard admissibility harmless error with to the of A.A.’sstate- Ryen provide ment to Dr. because the Commonwealth failed to suffi- argument support finding Specifically, Appellant cient in of a thereof. only concept avers that Commonwealth's mention of the of harm- less error was contained in a two-sentence footnote in brief to the its Court, Superior Appellant's Brief at and that the Commonwealth argued any that error in the admission of statement to A.A.'s Geist Ryen would be harmless error if A.A.'s statement to Dr. was deemed properly given Ryen admitted because the statement to Dr. was more detailed, testimony Ryen's and Geist's would be cumulative of Dr. testimony. First, discrepancy alleged as to which statement was to be Superi- cumulative of another is immaterial to the of whether the issue improperly engaged analysis or Court in a in harmless error the first Furthermore, Katze, instance. in Commonwealth 540 Pa. (1995) Affirmance), (Opinion Support A.2d three Justices agreed right argue that the Commonwealth did not waive its to harm- Superior by failing less error before the Court to first raise the issue before the trial court on the defendant’s motion for a new trial: general may There is a rule that issues not in the raised lower court however, appeal; applicable only not be addressed on rule this is to appellants. The Commonwealth the instant matter was not the court, appellant alleged before the trial where the waiver is to have occurred; therefore, any Appellant it could not have waived issues. support proposition cites several cases of its that the Common- error; however, right argue waived wealth its to harmless in all of cited, party the cases deemed to have waived an issue Commonwealth, appellant. non-moving party as the before the matter, obligation preserve trial court the instant had no issues Therefore, post-trial stage appeal process. at the in the it was permitted Superior to raise the issue of error harmless before Court. in the any error Superior We with agree Dr. was harmless error Ryen A.A.’s statement admission of of the statement merely the statement was cumulative because Indeed, of A.A.’s state- A.A. made to the substance Geist. the same: A.A. indicated to Ryen ments to Dr. and Geist was had hurt Ryen Appellant both Geist and Dr. J.A. arm. is Accordingly, Appellant on J.A.’s

grabbing pulling to relief based on his claim that A.A.’s statement not entitled to Dr. was admitted. Ryen improperly to

Having determined that A.A.’s statement Geist was Davis, subject nontestimonial under and thus not to the Clause, we of the Confrontation now address protections that the trial court’s admission of the Appellant’s argument under the current version of hearsay exception statement as a TYHA an facto violation.14 post Instantly, constituted ex the trial A.A.’s statements to and Dr. Ryen court found Geist years hearsay exception. admissible under the tender TYHA, effective on July current version of the which became 15, 2004, provides:

(a) out-of-court statement made aby General rule.—An witness, victim at the time the statement was child or who 12 or years age younger, describing any made was in 25 (relating offenses enumerated 18 Pa.C.S. Chs. to homicide), assault), criminal 27 to 29 to (relating (relating offenses), to sexual 35 to kidnapping), (relating (relating intrusion) criminal burglary (relating and other to by not otherwise admissible statute or rule of robbery), (footnote omitted). 540 Pa. at A.2d at 349 and citation In the judice, moving party case sub the Commonwealth was not the before Court, and, therefore, Superior obligation the trial court or the had no Moreover, any preserve claim harmless error. it was within the Superior judgment against Appellant to affirm the for Court’s discretion any Accordingly, reject Appellant's argument reason. we engaging analysis. Superior erred in in a error harmless argument respect Appellant makes the same with to A.A.’s statement Ryen, any admitting to Dr. but as we have concluded that error harmless, Ryen only Dr. was we need address his A.A.'s statement concerning Regardless, analysis applies claim Geist. to both infra statements. evidence, in any is admissible evidence criminal or civil proceeding if:

(1) finds, the court in an in hearing, camera time, is relevant evidence and that content and circum- stances of the statement sufficient provide indicia of reliabil- ity; and

(2) the either: child

(i) proceeding; testifies or (ii) is unavailable as a witness. 5985.1(a) (amended 2004). §

42 Pa.C.S.A. injured 2004, however, At the time in May J.A. prior effect, version of the TYHA was still and provided:

(a) rule.—An General out-of-court statement made aby witness, child victim or who at the time the statement was made was 12 years age or younger, describing physical abuse, indecent contact any of the offenses enumerated offenses) 18 Pa.C.S. 31 (relating Ch. to sexual performed another, by with or on the child not otherwise admissible evidence, statute or rule of is admissible in in any evidence criminal proceeding if:

(1) finds, the court an camera hearing, that the time, evidence is relevant and that the content and circum- stances of the statement provide sufficient indicia of reliabil- ity; and

(2) the either: child

(i) testifies at proceeding; the or (ii) is unavailable as a witness. 5985.1(a) (2000) added). § Pa.C.S.A. (emphasis

amended version thus eliminated the requirement that the “performed offense be with or on the child.” Appellant argues trial, that the trial court’s admission at under the amended TYHA, version the of A.A.’s statements to Geist and Dr. Ryen, A.A., did not describe abuse performed with or on constituted a violation of the prohibition against ex post facto Pennsylvania laws contained both the United States and Constitutions.15 we note that the ex facto

Preliminarily, post clauses the and are Pennsylvania virtually United States Constitutions and the language, applied identical standards to determine ex post facto violations under both constitutions are compara 57, ble. v. Young, Commonwealth 536 Pa. 65 n. 637 A.2d (1993) n. (holding analysis of the appellant’s well). federal ex claim post disposed facto of his state claim as post The ex facto clause of the United States Constitution Attainder, ... provides: any “No State shall Bill of pass ex Law, facto or Law the post impairing Obligation of Con 1, § tracts. ...” art. 10. The ex post U.S. Const. facto clause of the Pennsylvania provides: Constitution “No ex post facto law, any contracts, nor law impairing obligation of or making any grant special irrevocable privileges or immuni ties, passed.” § shall be Pa. Const. art. 17.

A law violates the ex post facto clause of the United (1) States Constitution if it makes an action done before the law, done, of the and passing which was innocent when criminal, (2) action; punishes crime, such aggravates or (3) committed; it greater makes than it was when changes punishment, and inflicts a greater punishment than the law (4) committed; to the annexed crime when alters the legal offenses, Appellant, charged any who not apparently with sexual another," interprets phrase "performed by with or on the child as TYHA, prior contained in modifying version of the all the crimes ("The evidence, however, Appellant’s listed. See Brief at 63 does not any by ‘performed show act Allshouse which was with' or ‘on the child' witness.”). TYHA, however, prior phrase version of the "performed by arguably with or on the child another” could be read to offenses; apply only reading, to sexual portion under such a of the TYHA relevant to the instant case would have been the same under both TYHA, permitted versions since both versions would have out-of- witness, age younger, describing court statements made a child 12 or (1) physical abuse. In that challenge Commonwealth does not (2) Appellant's argument regard; prior in this version of the TYHA effect; conclude, (3) longer is no and we for the reasons discussed infra, application that of the amended version of the TYHA does not prohibition against post regardless, violate the ex facto laws it is unnecessary engage statutory analysis for us to in a construction Appellant's interpretation determine whether is correct. different, evidence, less, testimony and receives rules of time of the commission of the required the law at the than Texas, v. to convict the offender. Carmell offense order (2000) 513, 522, 146 L.Ed.2d 577 120 S.Ct. 529 U.S. (3 Dall.) Bull, 386, 390, 1 L.Ed. 648 v. 3 U.S. (citing Colder (assertion (1798)); 65-66, 536 Pa. at 637 A.2d at 1317 Young, of prong ex facto violation based on third post of an Calder). of the version application maintains amended

Appellant prong of the TYHA in his case violated the fourth Colder evidence received at trial was than because “[t]he different May, have been received back in 2004.” Appel- what would original). Brief at 71 (emphasis denying Appellant lant’s claim, Superior relief on his ex facto Court reasoned: post court, by The trial to the current applying [TYHA] controversy, required was to find A.A. was unavailable and reliability. was also to find indicia of 42 Pa.C.S.A. required reliability § 5985.1. The record demonstrates the indicia of found the trial court not the Years ultimately by was Tender itself, in Hearsay aspect Act accordance with the reliability Roberts definition that allows to be found in a rooted “firmly hearsay exception.” [Rather], trial finding reliability, court’s of which was in the “firmly hearsay exception” not form a rooted and premised finding “particularized was on guarantees Roberts, trustworthiness,” satisfies which was binding prec- appellant charged edent when and remains binding the admission of precedent analyzing non-testimonial Thus, if hearsay today. arguendo even we assume the trial of the Act application post court’s constitutes an ex facto violation, application inconsequential, this is as the trial could have simply applied court Roberts and reached the remand, result. There is no reason to reverse identical simply as the trial court could reach the same result it stating applying is Roberts. Allshouse, (footnote A.2d at 1226-27

Commonwealth omitted). hold that Appellant We is not entitled to relief on claim, ex facto albeit for different reasons post the basis of his by Superior than relied the Court.16 upon the issue of ex Supreme The United States Court addressed Utah, Hopt of regarding facto laws rules evidence post (1884). Hopt, 28 L.Ed. 262 In the U.S. at a time when the law appellant preclud- committed murder ed a class of convicted felons— particular namely, witnesses — trial, from at trial. testifying By appellant’s the time of the however, this law repealed, had been trial court allowed a witness who was on to charges incarcerated murder testify at trial. appellant’s holding there was no laws, violation of the ex facto prohibition against post stated: which simply enlarge Statutes the class of who persons may in criminal cases are not ex post be competent testify to in their application prosecutions for crimes commit- facto ted to their prior passage; they for do not attach criminality done, any act previously and which was innocent when done, aggravate any committed, nor crime theretofore nor provide a greater punishment prescribed therefore than was commission, at the time of its nor they degree, do alter the measure, or lessen the amount or the proof of which was made necessary to conviction when the crime was commit- ted. The crime for which the present defendant was indict- ed, therefore, the punishment prescribed and the quantity or the degree proof necessary to establish his all guilt, by remained unaffected the subsequent Any statute. statu- tory alteration of the rules legal of evidence which would Court, Superior concluding 16. The that A.A.’s statements were ad- hearsay missible as nontestimonial under Roberts based on the trial finding testimony particularized guarantees court's that the contained trustworthiness, that, recognize did not even if A.A.'s statements law, were admissible on this under basis federal constitutional might Pennsylvania's statements nonetheless be inadmissible under evidence, prohibit hearsay “except rules of which rules the admission of rules, provided by by prescribed by Pennsylva- these other mies Court, Supreme nia statute.” Pa.R.E. 802. As a result of our application conclusion that the trial court's of the amended TYHA did post not the ex violate facto clause of either the United States or Constitution, however, Pennsylvania we need not matter address this further. degree, authorize conviction less amount or upon proof, committed, than the offense was required might, when offense, of that be obnoxious to the constitutional respect ex But which do upon post inhibition laws. alterations facto punishment, change ingredients not increase the nor facts necessary guilt, offense or ultimate to establish untouched the nature of the crime and the but-leaving of degree proof conviction-only amount or essential to re- the existing upon competency moves restrictions of certain witnesses, classes of relate to modes persons proce- of only, dure in which no one can be said to have a vested state, right, grounds and which the of upon public policy, at of may regulate pleasure. regulations Such the mode the facts constituting guilt may placed which be before the can be made to or jury applicable prosecutions trials there- had, after without reference to the date of the commission of the offense charged. 589-90,

Hopt, 110 U.S. at Missouri, Similarly, Thompson v. 171 U.S. 18 S.Ct. (1898), 43 L.Ed. 204 an ex appellant alleged post facto violation when evidence of a consisting handwriting compari- son, which was inadmissible at the time the crime was commit- trial, ted and at the appellant’s first was used a second trial at which the appellant ultimately was convicted. The Su- preme rejected the appellant’s argument using language similar to that in Hopt: used adjudge that the statute relating

[W]e of Missouri to the comparison of is not writings post ex when to applied facto for prosecutions crimes committed to its If prior passage. persons upon grounds public excluded at the time policy offense, of the commission of the from testifying as wit- accused, against statute, nesses for or in virtue may, of a become we competent testify, perceive any ground cannot upon which to hold a statute to be ex post which does facto nothing more than admit particular evidence kind in a upon criminal case an issue of fact which not was admissible judicial under the rules of evidence as by enforced decisions the time the offense was committed. The Missouri case, statute, enlarge to this did not applied when his crime the accused was liable when to which punishment committed, act involved in his offense any nor make criminal at the time he committed criminal that was not It not guilty. change of which he was found did murder the new rule or of his offense. Nor can quality degree unreasonable; characterized as cer- be [it] introduced to affect the sub- materially not so unreasonable as tainly on trial for crime. The statute did put stantial of one rights in amount or than was proof, degree,” not “less require crime charged at the time of the commission of the required right jury him. It left of the unimpaired upon effect the evidence declared sufficiency determine the admissible, rule to be and did not disturb fundamental state, of its to take the life of an right that the as a condition innocence, accused, of his presumption must overcome his a reasonable doubt.... The guilt beyond and establish arising more than remove an obstacle nothing statute did a rule of evidence that withdrew from the consider- out of which, in the jury testimony opinion ation of the ultimate, fact to tended to elucidate essential legislature, established, namely, guilt be of the accused.... We that the accused had vested in the adjudge any right cannot to the of the prior passage rule of evidence which obtained statute, the rule by Missouri nor established upon any rights belong- statute entrenched of the essential on trial for a ing put public to one offense. 386-88, 18 171 at 922.

Thompson, U.S. S.Ct. Carmell, recently, supra, Supreme Most Court con law, an ex facto to a Texas an amend post challenge sidered the rules of for crimes commit ment to which altered evidence the amendment. The was prior appellant ted Carmell committing convicted in 1996 on 15 counts of sexual offenses stepdaughter. his The offenses were committed be against 1995, 12 tween 1991 and when the victim was between and 16 1, 1993, Prior to Art. 38.07 of the Texas years September old. that a specified testimony Code of Criminal Procedure victim’s not a conviction regarding support a sexual offense could 90 (2) (1) or the victim

unless corroborated other evidence of the offense within six months of person informed another (an However, if “outcry”). occurrence the victim was its offense, testimony under 14 at the time of the the victim’s age a conviction. The version of support original alone could read: Article 38.07 22.011,

A under or Chapter conviction Section Section 22.021, Code, Penal is on the uncorroborated supportable of the victim of the sexual offense if the victim testimony defendant, any person, informed other than the offense within six months after the date on which alleged alleged requirement the offense is to have occurred. The that the victim inform another person alleged of an offense if the victim than apply younger years does not at the time of the offense. age alleged Carmell, quoting U.S. Tex.Code (1983). Ann., Proc. Art. 38.07 Subsequently, Crim. a 1993 amendment to the code of criminal procedure allowed con- testimony viction based on victim’s alone if the victim was age under counts, his on four of the appealed

Carmell convictions arguing that convictions could not stand under the pre 1993 version the law effect at the time the crimes were committed because the convictions solely were based on the victim, testimony of the who was not under at the time of the offenses and had not made a timely outcry. Texas of Appeals, citing Iiopt, supra, held that applying 1993 amendment retroactively did not violate the ex facto post clause of United States Constitution because it not did increase the punishment change the elements of the offense rather, had to it prove; merely state removed certain on the competency restrictions certain classes of persons and, witnesses, thus, simply was a rule of procedure. Car mell, 520, 120 at Recognizing U.S. S.Ct. 1620. a conflict in the regarding decisions retroactive of a statute application repealing requirement, a corroboration the United States Su review, and, decision, preme granted Court in a 5-4 reversed Appeals. the Texas Court of treat Article that “Texas courts emphasized

The Court first rule, a of the evidence rather than as sufficiency 38.07 as a or of evidence.” concerning competency admissibility rule 1620. After the four acknowledging Id. at 518 n. 120 S.Ct. facto laws set forth in Colder and post of ex categories above, a that alters the the Court noted that law discussed less, evidence, of or receipt and allows for legal rules than the law at the time of the testimony required different offender, in to convict the commission of the offense order post the fourth of ex facto law set forth type constitutes it, the to the merits of the case before respect Colder. With concluded: Court a unquestionably legal

Article 38.07 is law “that alters evidence, less, different, and receives testimony, rules of required than the law at the time of the commission of the offence, in order to convict the offender.” the law in Under committed, prosecution’s effect at the time the acts were and entitled to a legally petitioner case was insufficient judgment acquittal, produce unless the State could both testimony the victim’s and corroborative evidence. law, however, of evidence changed quantum

amended conviction; law, necessary sustain under new (and was) could be convicted on the victim’s petitioner alone, testimony any corroborating without evidence. Un- fourth any understanding der commonsense Calder’s category, plainly Requiring only Article 38.07 fits. convict, rather than the victim’s testi- testimony

victim’s mony corroborating surely other evidence is “less plus testimony required any straightforward to convict” sense of those words. omitted).

Carmell, (emphasis 529 U.S. S.Ct. 1620 consideration, careful we find distinguishable, After Carmell TYHA at and we conclude that the amended version of the in the case is more akin to the laws challenged issue instant conclude, we Hopt Thompson, Supreme and as did cases, of the amended version application those a violation of the of the TYHA does not constitute United ex facto clauses. The TYHA is Pennsylvania post States or 92 rule, it sufficiency type

not a does not address the of support evidence sufficient to a conviction. Unlike the amend- ment to Art. 88.07 of the Texas Code of Procedure Criminal Cannell, requirement which altered the challenged specific produce testimony that the State evidence of both the victim’s defendant, and corroboration in order to convict a the amend- ed version of the TYHA in the instant case did not alter the required evidence the Commonwealth was to in order to prove Appellant. testimony, though potentially convict A.A.’s help- ful, not an essential element of was the Commonwealth’s case Indeed, against Appellant. consisting evidence of the testimo- ny of Mother and the room emergency physician, though circumstantial, was sufficient to arguably support Appellant’s conviction. The amended version of the TYHA simply ex- the panded persons class of whose out-of-court statements are court, witness, admissible from a victim or 12 age younger, on or with whom an performed by offense was another, witness, to a victim or 12 or age younger. In the eliminating requirement that the offense had to be per- another,” formed “with or on the by child the amended version of the TYHA the “simply enlarge[d] persons class of who may be to competent testify criminal cases.” Hopt, 110 U.S. at Cannell, 202. Unlike the amendment did not less, Appellant allow to be convicted on or different evidence.17 See, e.g., McElhenny, Pa.Super. Commonwealth v. 478 A.2d (1984), Pennsylvania Superior wherein the Court relied on both Hopt Thompson reject appellant's challenge the to the sentence imposed third-degree Appellant after he was convicted of murder. trial, argued that the namely, tape admission of certain evidence at recording telephone appellant of a 911 call made in which he statements, incriminating post made violated the ex facto clause of the Pennsylvania United States and Constitutions. Under the law at the recorded, made, recording, time the call although legally was could court, appellant's not be used as evidence in absent the written consent. trial, however, By time repealed, that law had been and a new law, recording irrespective under which the was admissible consent, appellant's in effect. claim, rejecting appellant's post Superior ex facto acknowledged question legal that the law in altered the rules evi- evidence, dence allow emphasized the admission of different but necessary the law did not alter the evidence to convict the offender. is, crime; change legal That it did not definition of the it did not change prohibited prove behavior or what the state had to show to Thus, reject that the Appellant’s argument we trial court’s at trial A.A.’s statement admission to Geist violated the against post ex facto laws. prohibition above,

For all of the set forth we affirm the order of reasons Superior Court. Justice McCAFFERY did not in the participate consideration or decision this case.

Chief Justice CASTILLE Justices SAYLOR and join EAKIN opinion.

Justice SAYLOR files in which concurring opinion Chief joins. Justice CASTILLE concurring opinion

Justice BAER files a in which Justice joins. GREENSPAN SAYLOR, concurring.

Justice

I join the majority opinion. is to My only highlight addition the tension between the 36,124 testimonial litmus of v. Washington, 541 U.S. Craivford (2004), 158 177 plain S.Ct. L.Ed.2d and the terms of the (“In Sixth Amendment. See U.S. amend. VI all crimi- Const., nal prosecutions, the accused shall ... enjoy right to be him”). confronted with the witnesses against many The open questions the wake of the immense shift in Confrontation Clause heralded jurisprudence leaves lower-tier Crawford federal courts and state courts a difficult position terms limits of predicting appropriate this critical Sixth Amendment provision, newly construed. Accord Michael Graham, (2009). H. § 30B Fed. Prac. & Proc. Evid. 7033 I credit the majority opinion job for the best doing possible in such circumstances. joins concurring

Chief Justice CASTILLE this opinion. enquiry the commission of the crime. That must be the focus of our and it did not occur here. omitted, (internal emphasis original). Id. at 449 citation BAER, concurring. Justice following with the of the join Majority exception

I from test Majority applies primary purpose points. Washington, v. 547 U.S. Davis Geist, (2006), that because a social to conclude L.Ed.2d worker, he inter- ongoing emergency an when confronting A.A., the state- four-year daughter, viewed old Appellant’s I agree from A.A. are nontestimonial. While ments elicited nontestimonial, my elicited from A.A. are that the statements that, context, in this we my conclusion derives from belief an of law enforcement. Be- agent should not consider Geist enforcement, agent I not view him as an of law I find cause do whether he was an unnecessary investigating it consider ongoing emergency. admissibility of A.A.’s statements to

The resolution turns on whether her statements are testimonial. To Geist this we must consider the explanation make determination Washington, testimonial statements 541 U.S. Crawford 36, 1354, (2004), 124 158 L.Ed.2d 177 and Davis. S.Ct. defendant, Crawford, following the arrest of the detec police tives him and his wife and obtained their state interrogated an regarding stabbing. question ments earlier before the whether, testify Court was when the wife refused to Supreme trial, at the defendant’s the state could introduce her state police ment to contradict the defense. The defendant statement, that of his argued admission wife’s absent her violated the testimony, Sixth Amendment’s Confrontation Clause, guarantees right which the accused the “to be con against fronted with the witnesses him.” amend. U.S. Const. this the the Addressing argument, original VI. Court reviewed of the that meaning Confrontation Clause concluded its 50, two inferences. Id. at 124 1354. history suggested S.Ct. First, that the evil at which the principal Confrontation was a form of specific hearsay deriving Clause directed criminal in civil-law countries: exami- procedure parte from ex by justices peace nations of witnesses and other officers eventually against introduced as evidence accused. Con- noted that not all sequently, hearsay implicates 51, 124 Sixth Amendment’s core concerns. Id. at S.Ct. 1354. Rather, the text of the applies Confrontation Clause “wit- nesses” against being accused—witnesses “those who bear Webster, testimony.” Id. at S.Ct. 1354 N. An (citing (1828)). American Dictionary English “Testi- Language turn, mony,” in is solemn declaration affirma- typically “[a] or purpose tion made for the some establishing proving Court, fact.” Id. According to the various formulations of this core class of “testimonial” statements exist: parte testimony in-court or its functional equivalent-

[E]x is, affidavits, examinations, material such as custodial prior testimony defendant was unable to cross- examine, or similar pretrial statements that declarants reasonably would to be expect used ... prosecutorially statements that were made under circumstances which would an objective lead witness reasonably to believe that the statement would be available for use at a later trial.... Regardless articulation, of the precise some statements qualify any under definition-for ex example, parte testimony at preliminary hearing. (citations omitted). 51-52,

Id. at 124 S.Ct. 1354 The Court “[ijnvolvement further noted that the of government officers in production of testimony with an trial eye presents toward unique potential for prosecutorial abuse ...” Id. at n. 1354. The S.Ct. Court found that unsworn statements taken police officers the course of interrogations are 52, 124 testimonial under even a narrow standard. Id. at The second inference suggested by history of the Con- frontation Clause was that the Framers would not have al- lowed admission of testimonial statements of a witness who did not appear at trial unless he was testify, unavailable to the defendant a prior opportunity had for cross-examination. 53-54, Id. at 124 1354. The S.Ct. Court ultimately Crawford held that the defendant’s wife’s statements a during made police interrogation were testimonial hearsay that could not be admitted at the defendant’s trial unless the declarant was to cross prior opportunity had a and the defendant

unavailable 68, 124 her. Id. at S.Ct. 1354.1 examine is, therefore, pursuant a testimonial Finding statement the state assessing threshold determination Crawford, a the demands of the Confronta admissibility, triggering ment’s day any another the left for Although Court tion Clause. “testimonial,” of definition comprehensive effort to out spell 68, 124 1354, certain statements as it identified id. at S.Ct. testimony”: those parte of “ex in-court equivalent functional 51, 124 1354; affidavits, id. depositions, id. at S.Ct. provided 1354; 52, during police interrogations, those given at 124 S.Ct. 1354; 68, testimony preliminary at a prior id. at 124 S.Ct. trial, 68, 124 at a former id. at grand jury, before a hearing, 1354; that were made under or similar “statements S.Ct. objective lead an witness reason circumstances which would at would be available for use ably to believe that the statement 52, In trial ....” id. at 124 S.Ct. 1354.2 this core class a later statements, believes reasonably the declarant of testimonial use in a testimony against that he is accused for bearing contrast, hearsay In nontestimonial subsequent proceeding. in accord with the constraints statements are not inadmissible because the declarant does not Confrontation Clause testimony intend to bear the accused. against indicated that all state- Although Court Crawford testimonial, interrogations ments made are during police 52, 1354, was asked to reconsider Court U.S. this absolute characterization Davis and Hammon Davis, Indiana, companion provid- case. the declarant Roberts, 2531, 1. The overruled Ohio v. 448 U.S. 100 S.Ct. (1980), admissibility which conditioned the of all 65 L.Ed.2d 597 hearsay “firmly hearsay evidence on whether it fell under a rooted exception” "particularized guarantees or bore of trustworthiness.” Crawford, that this test 541 U.S. at S.Ct. 1354. The Court found broad, was, circumstances, applied too because it the same in certain hearsay parte analysis regardless consisted ex testimo- whether the ny, thereby requiring scrutiny of nontestimonial close constitutional statements far removed from the core concerns of Confrontation Clause. "objective- 2. Commentators have referred this definition as See, Funk, e.g., Christopher witness test.” Cannon The Reasonable (2009). Washington, Declarant Davis v. 61 Stan. L.Rev. 923 Child After Hammon, ed statements to a 911 operator, and the declar- ant made statements to police who to a responded reported at domestic disturbance her home. The Court was called to decide upon whether statements made in these two subject circumstances were testimonial and thus to the re- quirements of Confrontation The Clause. Court distin- guished between nontestimonial and testimonial statements made during police interrogation:

Without an attempting produce exhaustive classification of all conceivable statements-or even all conceivable state- ments in response police interrogation-as either testimo- nontestimonial, nial or it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the police course of interrogation under circum- stances objectively indicating that the primary purpose is to enable interrogation police assistance to meet an ongoing emergency. They are testimonial when the circum- objectively stances indicate that there no ongoing is such emergency, primary and that the purpose of interroga- tion is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, 822, at S.Ct. 2266.3 The Davis Court U.S. that the assumed acts of the 911 operator were the acts of the police, it making unnecessary to decide whether and when statements made to someone other than law enforcement Id. personnel 823, 2, are testimonial. n. 126 S.Ct. 2266. Applying the above test to the facts of the two cases before it, the ultimately Court concluded that statements to the 911 in Davis were nontestimonial operator they because were provided during police interrogation to meet an ongoing emer- found, however, gency. Court the statements to Hammon police investigating were, fact, a crime testimo- nial, they because were provided part of an investigation "primary 3. Commentators have referred to purpose this standard as the Child, test.” The Reasonable 61 Stan. L.Rev. at 935. primary purpose ongoing If the emergency, is to meet an the state- nontestimonial; if ongoing emergency ment is there is no and the events, primary purpose past is instead to establish then the statement Davis, 822, is testimonial. 547 U.S. at 126 S.Ct. 2266. 829, 126 criminal conduct. Id. at past

into possibly conclusion, formality indicated that reaching this utterance, id. at n. 126 S.Ct. to testimonial is essential her provided after the declarant Hammon noting executed an affidavit to establish to the she police, statements 832, events. Id. at 126 S.Ct. 2266. past Davis, requires in which a determination provided The test police interrogation pro- of the primary purpose admitted, limited on its sought the statements to be is duced test has no interrogations; primary purpose face to police that are not made the course of to statements application Davis, at 126 S.Ct. interrogations. See U.S. police to other than law If statements are made someone enforcement, principals we should look to the of to Crawford See, e.g., the testimonial nature of statements. determine (2006) Stahl, v. 855 N.E.2d 834 State Ohio St.3d test, than “objective witness” rather (applying Crawford’s test, to find that statements made “primary purpose” Davis’s practitioner an victim to a nurse were nontesti- by rape adult monial).

Although primary purpose easily test classifies some testimonial, problematic its use is more in the statements cases, usually context of child abuse which involve law enforce- workers, counselors, ment, health care professionals, social fact, family difficulty determining or friends. of nature of a in a the testimonial statement obtained child abuse relatively straightforward case contrasts with the application police interrogations. Accordingly, and Davis to Crawford made automatically by I would not determine statements the course of a abuse are during investigation a child child an during ongoing emergency solely testimonial unless made to the involvement of a in the interview government agent due See, People Vigil, v. 127 P.3d 923-25 process. e.g., (Colo.2006) that a for a child (finding working protec- doctor who obtained statements from a child was not a tion team controlling police “absent a more direct and government agent Bobadilla, (Minn.2006) 709 N.W.2d 243 presence”); State that the of whether statements made (holding question worker are testimonial does protection child to a child young government agent, the worker was a but hinge not on whether acting to a government agent on whether the rather trial). for I be- to statements degree” produce “substantial inquiry our police interrogation, that in the absence of lieve acting is questioner examine the extent to which should with law enforcement. In this conjunction the behest of or degree in this is the an consideration case regard, important from A.A. the statements police procuring involvement case, however, helpful it is looking Before at the facts of this pursuant how interview came about to understand Geist’s Law, seq. §§ 6301 et Protective Services Pa.C.S. Child agencies to involve law enforcement purpose The Law’s is abuse, and youth to child to establish children responding abuse, to investigate reports agencies social service abuse, further and to for children from provide protection parents rehabilitative services for the children and provide 6302(b). requires § The Law certain involved. 23 Pa.C.S. abuse, report suspected including physicians. individuals to 6311(b). § a abuse is report suspected 23 Pa.C.S. Once received, commence an county investigation, the CYS must which includes a determination of the risk of harm to child remain in the home environ- they or children if continue to extent, ment, nature, well as a determination of the and as abuse, necessary to take action to any any cause of and safety for the of the child or children. 23 Pa.C.S. provide may § workers release information Although CYS they there is no that do so. See police, requirement §§ 6339 and 6340. Pa.C.S. case, the facts of this the circumstances reveal

Turning to A.A.’s state- procuring were not involved police injured After his seven-month old Appellant ments to Geist. son, J.A., treating at the hospital. the infant was treated abuse, contacted social suspected physical who CYS physician, he hospital, to the where responded worker Geist. Geist mother, and his and concluded J.A. interviewed J.A.’s A.A., tem- should be removed siblings, including four-year-old with safety. placed their The children were porarily for that A.A. Appellant’s parents. Appellant informed Geist information, injury. Acting caused J.A.’s on this arrived Geist 27, 2004, at home to talk to A.A. on Appellant’s parents’ May parents’ week after the children’s removal from their care. injury. Geist intended to obtain information regarding J.A.’s dressed, causally Geist was and did not indicate that A.A.’s statements be in a subsequent proceeding against would used He her on the Appellant. questioned porch, front and asked her if how she was and she remembered what happened did; said that J.A. She she Geist asked if twin J.A.’s caused and A.A. said He injury, no. asked turn whether A.A. did, the injury, caused whether her mother and whether her father, father the questioning did. When turned to her Appel- lant, scared, began A.A. to act and answered in the affirma- tive. time, She described Appellant angry demonstrated how the injury occurred. When one of Appel- lant’s siblings interrupted, interview ended. re- Geist CYS, turned to statutory procedure followed by notifying his supervisor, and recommended that A.A. be interviewed Dr. Ryen. § See 23 Pa.C.S. 6311. He did not report his findings to law enforcement.

I not believe do that Geist was at the acting behest of or in conjunction with law enforcement. Police were not involved in A.A., Geist’s interview of either formally or behind the scenes. There is no evidence that police inter- requested Geist’s A.A., provided view of any direction about the questioning, or any had input noted, whatsoever. As the Superior Court Geist did not notify police what he learned from his Rather, interview of A.A. he contacted his supervisor. Geist was acting pursuant to a statutory duty safety to ensure the A.A. her and siblings.

The Majority presently applies the primary purpose test to Geist, the interrogation conducted explaining applica such tion by construing Geist to be an agent of law enforcement. conclusion, To reach this the relies Majority on Common Ramos, 84, (1987). 465, wealth v. 367 532 Pa.Super. A.2d 468 Ramos, I find Ramos distinguishable on its facts. a CYS caseworker obtained a confession from a during defendant an

101 in prison awaiting interview while the defendant was trial on for the child abuse that the CYS charges prompted criminal Ramos, A.2d 465. The found Superior interview. 532 that the defendant’s statements to the CYS work- inculpatory because were obtained in violation they er were inadmissible Arizona, 436, 1602, of Miranda v. 384 U.S. 86 S.Ct. 16 (1966). L.Ed.2d 694 Id. CYS caseworker interviewed defendant, jail, dispute regarding and there was no nature of the interrogation. Accordingly, Supe- custodial that the in Ramos rior Court concluded CYS worker properly a crime. assisting police investigating was in this is distinguishable. The role of Geist case Geist Appellant’s interviewed A.A. out of concern for the plight in the criminal against children. He was not involved case not make the His was intended to case Appellant. questioning Moreover, the status of the individual against Appellant. is but one consideration into wheth- questioning the defendant during interrogation. er a statement was a custodial given (1983) McGrath, 504 Pa. Commonwealth v. A.2d (“The whether were elicited at a determination of statements light totality custodial must be made in interrogation involved, is questioner circumstances status of circumstances.”). one of the relevant only involved, pur- law enforcement is not the primary Where and an is not a pose apply emergency prerequi- test does not site the statements nontestimonial. Because finding Geist enforcement, not as an of law acting agent primary Rather, not look to apply. test does we should purpose of testimonial core class statements determine Crawford’s qualifies whether the statements at issue here as the function- in-court parte testimony,” Crawford, al of “ex equivalent and are therefore testimonial. U.S. at here with provided Because we are not concerned statements affidavits, during police interrogations, prior depositions, jury, before a or at testimony preliminary hearing, grand at a trial, formulation of core remaining former Crawford’s objective statements is the witness test. class of testimonial whether statements were made under circum- This test asks objective reasonably which would lead an witness to stances at believe that statement would be available for use a later 52, 124 Id. trial. interview, all an

Considering of the circumstances of Geist’s objective in A.A.’s would not have person position reasonably that her in a anticipated might statements be used later There is no evidence that prosecution Appellant. Geist preserve elicited A.A.’s statements to them for trial. The lack with the formality objec- connected interview would have indicated to A.A. that she tively “bearing testimony” was not An against Appellant. objective witness could have reason- ably believed that her statement to Geist was made ensure safety. children’s

I conclude that A.A.’s statements were nontestimonial be- Geist, cause they provided were who was not as a law acting contrast, enforcement officer. the Majority concludes that because, the child’s statements are nontestimonial although enforcement, was acting Geist law primary purpose his interview was to meet an ongoing I emergency. recognize my disagreement with the Majority may to be a appear minor, However, nuanced I point. wary am of the implica- concluding tions of as an acting agent Geist of law enforcement in this Specifically, context. construing CYS worker as law enforcement because he was contacted and was hospital responsible for J.A.’s safety makes the admissibility of A.A.’s contingent statements on whether there above, was an ongoing emergency. explained As I do not believe that there is such a requirement under Crawford. joins

Justice GREENSPAN this opinion.

Case Details

Case Name: Commonwealth v. Allshouse

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 29, 2009

Citation: 985 A.2d 847

Docket Number: 55 WAP 2008

Court Abbreviation: Pa.