The Pennsylvania Supreme Court has ruled that a young girl’s videotaped statement that her father sexually abused her is admissible.
A unanimous six-justice court reversed a Commonwealth Court panel’s ruling in R.A. v. Department of Public Welfare,which held that a 4-year-old’s testimony alleging that her father performed numerous sexual acts on her—captured as a DVD interview with a New York State Police officer—was inadmissible hearsay.
Justice Max Baer, writing for the court, said the DVD testimony was admissible because an administrative law judge of the state Department of Public Welfare found the child—known as “E.A.”—to be credible and the father—”R.A.”—not credible.
“While one could potentially question whether a reasonable person would find E.A.’s statements credible if she were an older child or an adult given the rambling nature of the interview, some of the inconsistencies in her statements, and some unrealistic elements, we conclude that it was not unreasonable for the ALJ to credit E.A.’s statements, in part because of the testimony of the caseworkers and interviewer who found E.A. to be extremely credible for a 4-year-old. Unlike the average lawyer or judge, these individuals are trained in interviewing young victims of sexual assault,” Baer said.
Baer was joined by Chief Justice Ronald D. Castille and Justices Thomas G. Saylor, J. Michael Eakin, Seamus P. McCaffery and Debra M. Todd.
Castille filed a concurring and dissenting opinion, which Todd joined, noting that while he agreed with the majority’s ruling regarding the admissibility of the DVD testimony, he believed the court should have remanded the case to the Commonwealth Court to address the remaining issue of whether the proceedings before the hearing officer violated the defendant’s constitutional right to confront the witness against him.
Castille said that issue was not examined by the Commonwealth Court and was not before the Supreme Court.
While the majority held that defense counsel’s statement of “‘no objection’” to the formal admission of the DVD testimony at a hearing “waived any objections to the admission of the videotaped interview by failing to preserve the issue before the ALJ,” Castille said the constitutional argument still needed to be addressed.
“The majority does not indicate that it intends, by this broad conclusion, to rule upon issues not accepted for review, and thus to obviate, sub silentio, the necessity for a remand; more likely, it is an oversight,” Castille said. “In any event, the statement is overbroad as to the issues actually before us; the Commonwealth Court never passed upon whether the constitutional issue was properly preserved; and the constitutional issue (including the sub-issue of issue preservation) should be resolved, in the first instance, by the Commonwealth Court following targeted briefing.”
In R.A., a three-judge panel of the Commonwealth Court, led by Judge Mary Hannah Leavitt, found merit in the father’s argument that Diane Hall, of the New York State Police, had coached the daughter during the interview and that the officer’s questions were suggestive of answers.
Therefore, the DVD interview—including apparent mentions of vaginal penetration and oral sex—did not pass the test formulated by the Pennsylvania Supreme Court in the 1994 case A.Y. v. Department of Public Welfare, carving out what constitutes admissible hearsay in cases where other evidence is nonexistent, Leavitt said.
The court noted that the Wyoming County agency that filed the report against R.A. did not look into his “background, character, reputation or family” to introduce as evidence and offered no physical examination results to strengthen its case.
The line of facts in the case dates back to 2009, when the girl’s mother, who lives in New York, contacted the Broome County, N.Y., Child and Youth Bureau to report she believed her daughter had been sexually abused by R.A. The daughter had on several occasions visited her father, who lives in Pennsylvania, so the New York agency referred the case to Wyoming County, Pa., Child and Youth Services, the Commonwealth Court opinion said.
A caseworker from the Pennsylvania agency asked New York authorities to interview the daughter and, following the interview, the caseworker filed a report of “indicated” sexual abuse, according to the court’s opinion.
The Supreme Court’s guidelines in A.Y. appeared to allow that uncorroborated testimony of a child could constitute substantial evidence of abuse in “special situations,” Leavitt said.
But this case was not one of them, according to Leavitt.
“We have been unable, however, to find a single instance of an indicated report of abuse being based upon a single, out-of-court statement of a child of any age, let alone a child of four years,” Leavitt said.
“Upon review of our decision in A.Y., we conclude that the Commonwealth Court erred by creating a more stringent test for uncorroborated hearsay for ‘young children,’ and failed to consider properly the third guideline in A.Y., addressing when uncorroborated hearsay may constitute substantial evidence to support an indicated report of sexual abuse under Section 6303(a) of the Child Protective Services Law,” Baer said. “We respectfully reject the Commonwealth Court’s imposition of additional requirements and instead rely upon the balance struck by this court in A.Y.”
Baer added that even if the DVD testimony were not admissible in and of itself, the testimony of the girl’s mother, which was found credible by the ALJ, corroborated the DVD testimony and therefore constituted substantial evidence under Section 6303.
Counsel for Wyoming County Human Services, Sandra D. Boyle of Nicholson, Pa., said the agency was “very pleased” with the ruling.
“We believe that the case on which it relied, the A.Y. case, is good law and it works for the caseworkers and investigators out here in the field in handling those types of cases,” Boyle said.
A spokesman for the Office of General Counsel, which is handling the case on behalf of the state Department of Public Welfare, said the agency was “pleased that the Supreme Court in this case affirmed prior precedent and did not raise the burden of proof in child abuse cases.”
Counsel for the father, Brenda M. Kobal of Kobal & Frederickson in Moosic, Pa., could not be reached for comment at press time.
(Copies of the 28-page opinion in R.A. v. Department of Public Welfare, PICS No. 13-3241, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •