Hearsay • Tender Years Hearsay Act • Children’s Testimony • Competence to Testify

Commonwealth v. Walter, PICS Case No. 14-0303 (Pa. Feb. 18, 2014) Todd, J. (30 pages).

Where a child witness was not being called to testify in court, the court need not determine the child’s competence to testify before determining whether or not to admit the child’s out-of-court statements under the Tender Years Hearsay Act; and where the trial court determined that the potential for emotional distress renders a child witness unavailable to testify in court, and determined sufficient indicia of reliability in a child witness’ out-of-court statements, the statements can be admitted under the Tender Years Hearsay Act. Reversed.

Defendant Jay Lee Walter challenged the admission of out-of-court statements made by his daughter, A.W., pursuant to the Tender Years Hearsay Act, during his trial on charges of rape and indecent assault on A.W. The trial court, during a TYHA hearing, determined that A.W. was unavailable to testify based on evidence that participation in the court proceedings was inflicting emotional distress on A.W.; the trial court also found that A.W.’s prior out-of-court statements relating to the alleged crime made to third-parties had sufficient indicia of reliability to be admitted under the TYHA.

Walter successfully appealed to the Superior Court, which found that the trial court erred in not determining the competence of A.W. to testify pursuant to Pa.R.E. 601 before admitting her out-of-court statements under the TYHA, and also finding a lack of sufficient indicia of reliability of her statements.

On appeal, the commonwealth argued that the TYHA contains no requirement that the child witness be found competent. Moreover, the commonwealth argued that Rule 601 only applies to witnesses who are called to testify; where a witness is deemed unavailable under the TYHA, Rule 601 is irrelevant; imposing a competency requirement would also result in disparate treatment between child witnesses and adult witnesses, as other exceptions to the hearsay rule under which adult statements would be admitted do not require the declarant be found competent.

Walter contended that a finding of competency was necessary before an out-of-court statement is admitted under TYHA; if a child witness could not meet any of the requirements for competency, the proposed hearsay testimony could not provide sufficient indicia of reliability

The court found that the plain language of the TYHA contained no requirement of competency; it held that the requirements of TYHA and the standards of Rule 601 were two distinct concepts and that the Superior Court erred in conflating the two — where a child will not testify, Rule 601 is not implicated. Moreover, the instant court noted that TYHA and Rule 601 addressed separate concerns — the truthfulness of hearsay statements, and the ability to perceive, remember and communicate events, respectively. The court rejected the notion that a child’s hearsay statements were per se unreliable where a child is found not to be competent to testify.

Finally, the court held that the trial court did not err in admitting A.W.’s out-of-court statements under the TYHA. The court found that there was sufficient evidence to establish that participating in the proceedings of the case caused A.W. emotional distress that made her unavailable to testify. The court also rejected the Superior Court’s contention that a lack of physical evidence abuse demonstrated a lack of reliability of A.W.’s statements, holding that there was sufficient evidence of reliability, and the Superior Court improperly substituted its own opinion for the trial court’s.