In the Int. of: C.A.H., a Minor

J-S34032-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 IN THE INT. OF: C.A.H., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: COMMONWEALTH OF : PENNSYLVANIA : : : : : No. 677 MDA 2025 Appeal from the Order Entered May 20, 2025 In the Court of Common Pleas of Lycoming County Juvenile Division at No(s): CP-41-JV-0000010-2025

BEFORE: STABILE, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 25, 2026 The Commonwealth appeals from the juvenile court’s May 20, 2025 order denying its motion to admit out-of-court statements of a four-year-old alleged sexual assault victim under 42 Pa.C.S. § 5985.1, commonly known as the “tender years” exception to the rule precluding hearsay. After careful review, we affirm.

A petition alleging delinquency was filed against the juvenile appellee, C.A.H., on January 15, 2025, asserting that he committed two counts of indecent assault (victim less than 13 years of age) and one count of indecent exposure. The petition was based on statements made by his four-year-old, female niece (hereinafter “victim”).1 The victim made the statements to her

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1 C.A.H. is the teenage brother of the victim’s father. See N.T. Hearing, 5/15/25, at 16.

J-S34032-25 grandmother, mother, and, later, to a forensic interviewer from the Children’s Advocacy Center (CAC).

On April 14, 2025, the Commonwealth filed a motion to admit the victim’s hearsay statements to these individuals under section 5985.1 at C.A.H’s delinquency hearing. A hearing on the motion was held on May 15, 2025. The trial court summarized the evidence presented at the hearing, as follows: At the time of the hearing, the Commonwealth presented three witnesses, each of whom testified as to the alleged statements made by the … victim…. The Commonwealth also entered into evidence two Exhibits, one of which was a copy of the CAC interview.

Sherry Moroz…, a qualified Forensic Interviewer at the CAC, testified that she interviewed the [victim] on July 8, 2024. During the interview, the [victim] stated to Moroz that the accused put his hand between the [victim’s] leg[s], swiped up[,] and wiggled his fingers. The [victim] also gestured ([in an] up and down motion) how the accused had her touch his penis. Moroz stated the [victim] acted appropriately for a four-year[-old] child, [and] understood and answered the questions. Moroz further stated that she did not recall the [victim’s] using language that [was] more advanced for her age. Following [the] conclusion of the hearing, this [c]ourt did review the CAC interview entered into evidence by the Commonwealth. During the [victim’s] CAC interview, she disclosed that “she walked over to [the accused’s] room[,”] her clothes [were] on when [the accused] wiggled on my skin[,] and that the accused got to her skin by “using his finger.”

As the [victim] was making the above statements[,] she was pointing to her groin area. When Moroz asked her what she called her private area, the [victim] stated her “private.” When Moroz asked the [victim] what she calls a boys [sic] private part, the [victim] stated a “cooch.” The [victim] went on to say that she did tell her mom and “Grandzy”[] that the accused told her not to tell and that what she described happened “a lot of times.” On cross-examination, Moroz acknowledged that the [victim’s] mother and grandmother brought her to the CAC interview.

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The Commonwealth next called [M.B.]…, the [victim’s] maternal grandmother. [M.B.] testified that[,] following a custody exchange and after she returned to her home with the [victim], the [victim] stated to her[,] “Gram[,] I have to tell you something. [The accused] was kissing my pee bug.” [M.B.] further testified that the [victim] stated that this happened in the accused’s bedroom while everyone was sleeping. [M.B.] then told the [victim’s] mother, [S.D.] [M.B.] and [S.D.] then notified law enforcement and the contact with law enforcement led to the CAC interview. During the cross-examination of [M.B.], [M.B.] indicated that there currently is custody litigation involving the [victim]. [M.B.] also stated on cross[-examination] that she did not discuss the events described by the [victim] with her prior to taking the [victim] to the police station or the CAC.

The final witness called by the Commonwealth was [S.D. She] testified that on June 20, 2024[,] [M.B.] called her and said to come to [M.B.]’s house. After [S.D.’s] arrival, [M.B.] had [S.D.] ask the [victim] questions. [S.D.] testified that the [victim] was crying and upset and [said] that[,] while at her Father’s home, the accused woke her up and made her do … “unacceptable things she didn’t want to do.” Specifically, the [victim] stated to [S.D.] that she “had to lick [the accused] and [the accused] made her return the favor.” [S.D.] also testified that the [victim] described the up and down hand motion that the accused made the [victim] perform on him. [S.D.] further stated that the [victim] was told by the accused “not to tell[,”] that the [victim] was “scared to tell[,]” and that the [victim] said it happened both a million times and one time. [S.D.] testified to additional statements made by the [victim] to her[,] to include [that] “[the accused] licked my bug, made me lick him, made me do [up and down hand motion] on him, [and that the accused] was small and shriveled up.” On cross-examination, [S.D.] stated that[,] although the current custody order calls for 50/50 [custody], she is not allowing the [victim] to go to her Father’s home out of concern for the [victim,] but that Father may visit with the [victim] at [S.D.’s] home. [S.D.] continued by stating that she intends to file for full custody, Father has not paid child support[,] and that Father has displayed a lack of involvement in the life of the [victim].

Defense counsel called the mother of [the accused], [E.F.], to testify. [E.F.] testified that she had a conversation with [S.D.] after [E.F.] received the charges filed against [the accused].

During that conversation, [S.D.] stated to her that[,] “I know nothing happened[,] but Julius (Father of the [victim]) is going to -3- J-S34032-25 get in trouble and not [the accused juvenile,] and that will take care of the custody.”

Juvenile Court Amended Opinion and Order (JCAOO), 5/22/25, at 1-3 (unnumbered).

Based on the testimony presented at the hearing, the juvenile court issued an order denying the Commonwealth’s motion to admit the victim’s out-of-court statements to M.B., S.D., and Moroz.2, 3 See id. at 6 (unnumbered). The Commonwealth filed a timely notice of appeal, certifying that the court’s order substantially handicaps the prosecution of its case. See Pa.R.A.P. 311(d). Although this case was designated as a Children’s Fast Track appeal pursuant to Pa.R.A.P. 102, the Commonwealth did not file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal concomitantly with its notice of appeal, as required by Pa.R.A.P. 1925(a)(2).

Accordingly, on June 4, 2025, this Court issued an order directing the Commonwealth to file a concise statement within 10 days, and the Commonwealth timely complied. On June 23, 2025, the court issued an ____________________________________________

2 The court issued an “Opinion and Order” on May 20, 2025. It then issued an “Amended Opinion and Order” on May 22, 2025, adding additional language to its opinion. We utilize the date of the amended opinion and order herein.

3 We note that in the same amended order, the court granted the Commonwealth’s unopposed motion to admit testimony by contemporaneous alternative method. The court interpreted that motion as indicating that the Commonwealth intends to call the victim to testify at trial. See id. at 4 (unnumbered) (“Although the Commonwealth did not specifically state that the [victim] will testify, it is inferred that the [victim] will testify because the Commonwealth also filed a Motion to Permit Testimony by Contemporaneous Alternative Method and that Motion is unopposed.”).

-4- J-S34032-25 opinion indicating that it was relying on the rationale set forth in its May 20th and 25th opinions.

Herein, the Commonwealth states five issues for our review: 1. Whether the [juvenile] court erred as a matter of law and abused its discretion in denying the Commonwealth’s Motion to Admit Out-of-Court Statements of the child victim pursuant to 42 Pa.C.S.[] § 5985.1, where the statements made by the four-year- old victim to forensic interviewer Sherry Moroz, maternal grandmother [M.B.], and mother [S.D.] possess sufficient indicia of reliability and particularized guarantees of trustworthiness under the totality of the circumstances, as required by Commonwealth v. Hanawalt, 615 A.2d 432 (Pa. Super. … 1992)?

2. Whether the [juvenile] court erred in concluding that minor variations in detail[s] between the child’s multiple disclosures rendered the statements inconsistent, by improperly applying an exacting standard of verbatim repetition and failing to account for the developmental limitations and linguistic variability typical of disclosures made by a four-year-old child?

3. Whether the [juvenile] court improperly discounted the forensic interview conducted at the … []CAC[] by focusing on terminology differences rather than considering the corroborative nature of the child’s gestures, body language, and consistent themes regarding inappropriate contact by the accused juvenile?

4. Whether the [juvenile] court erred by emphasizing alleged motives to fabricate on the part of the victim’s mother and grandmother due to a custody dispute, without sufficient evidence to establish that any such motive tainted the child’s statements or that the child was improperly influenced, thereby substituting speculation for the court’s obligation to focus on the reliability of the child’s own statements and conduct?

5. Whether the [juvenile] court’s exclusion of the victim’s statements under [section] 5985.1 severely prejudices the Commonwealth’s ability to prosecute serious sexual offenses involving a child under 13 and constitutes reversible error by excluding critical, otherwise admissible evidence central to the Commonwealth’s case-in-chief?

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Commonwealth’s Brief at 4-5.

To begin, we explain that the “tender years” exception of section 5985.1 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 16 years of age or younger, describing any of the offenses enumerated in paragraph (2) 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.

42 Pa.C.S. § 5985.1(a). “Statements admitted under this section are substantive evidence against the defendant.” Commonwealth v. Copenhaver, 316 A.3d 1020, 1023 (Pa. Super. 2024) (citing Commonwealth v. Bond, 190 A.3d 664, 669 n.3 (Pa. Super. 2018)).

Additionally, we review the trial court’s decision whether to admit or exclude evidence under the tender years statute for an abuse of discretion. See id. (citing Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006)).

In assessing Appellant’s issues, we have reviewed the parties’ briefs, the certified record, and the applicable law. We have also considered the

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Amended Opinion and Order authored by the Honorable Ryan C. Gardner of the Court of Common Pleas of Lycoming County. We conclude that Judge Gardner’s well-reasoned analysis is supported by the record. See JCAOO at 3-6 (unnumbered). We do not discern any manifest unreasonableness, partiality, prejudice, bias, or ill will in Judge Gardner’s decision to deny the Commonwealth’s motion to admit the victim’s out-of-court statements. See also Interest of D.C., 263 A.3d 326, 333 (Pa. Super. 2021) (stating that an evidentiary ruling by a trial court “will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill- will, or such lack of support to be clearly erroneous”) (citation omitted).

Moreover, the Commonwealth’s arguments herein fail to show that Judge Gardner clearly abused his discretion, so as to demonstrate that reversible error occurred. Id. (stating that where a decision “is within the sound discretion of the trial court[,]” it “will be reversed only upon a showing that the trial court clearly abused its discretion”).4 Accordingly, we adopt Judge ____________________________________________

4 Indeed, the Commonwealth’s arguments are, at times, not meaningfully developed or supported by the record. For instance, in its first issue, the Commonwealth claims that “[t]he testimony of Sherry Moroz, the forensic interviewer, confirmed that the child described inappropriate sexual acts using both gestures and terms such as ‘pee bug’ and ‘cooch.’” Commonwealth’s Brief at 8 (citing N.T. Hearing at 4-14). However, at no point did Moroz offer the testimony the Commonwealth claims. The Commonwealth also contends, within that same issue, that “[e]ach adult witness testified to the child’s calm demeanor and detailed disclosures[,]” yet it provides no citation to where this testimony purportedly occurred. Id. at 9. The Commonwealth then states that “[t]hese indicators are closely aligned with those found reliable in Walter, Strafford, and In re D.C., where courts admitted statements based on (Footnote Continued Next Page)

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Gardner’s decision as our own and affirm the order denying the Commonwealth’s motion to admit the victim’s out-of-court statements for the reasons set forth therein.

Order affirmed.

Judge Stabile joins this memorandum.

Judge Sullivan files a dissenting memorandum.

____________________________________________ similarly corroborative and consistent evidence.” Id. Problematically, the Commonwealth provides no citations to these cases, or discussion of how the statements at issue therein compare to the facts at hand. In fact, the Commonwealth does not provide detailed discussions of any of the cases it cites throughout its brief.

Then, in the Commonwealth’s second issue, a completely blank page of argument appears on what would be the eleventh page of its brief. In its third issue, the Commonwealth contends that “[t]he trial court’s reliance on a perceived motive to fabricate stemming from a custody dispute between the victim’s parents was speculative and unsupported by the record.”

Commonwealth’s Brief at 13. However, the Commonwealth completely ignores that the court cited S.D.’s testimony regarding “her discontent with the [victim’s] Father as it relates to child support, physical custody[,] and the Father’s lack of involvement in the [victim’s] life.” JCAOO at 5. The court also stressed that “the testimony offered by [the accused’s mother] supports the [c]ourt’s suspicion regarding [M.B.] and [S.D.’s] motivation to blame the accused juvenile.” Id. at 6. The Commonwealth fails to acknowledge, let alone address, this evidence which supports the court’s finding that M.B. and/or S.D. had a motive to encourage the victim to fabricate her statements.

These inadequacies in the Commonwealth’s arguments greatly weakened its position and, ultimately, we are unconvinced that the juvenile court abused its discretion.

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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 06/25/2026

-9- Circdlit^ 12

IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA In Re: - No. JV-10-2025 C.A.H. o r- m' •Ii^iwgnwyawiwcf a minor rxj ;r- O '■ ni X D AMEDNED and ORDER c/. cn -i AND NOW, this 21 st day of May, 2025 this Court’s Order dated May 19th, 2025 is hereby AMENDED to include language following the final paragraph of the Opinion and Order: following a hearing held May 15, 2025 on the Commonwealth’s Motion to Admit Out of Court Statements where the juvenile and his attorney, Michael Dinges, Esquire appeared personally and the Commonwealth was represented by Eric Birth, Esquire, the Motion is DENIED.

Background and Testimony The facts that give rise to the three counts charged in this matter (two counts of Indecent Assault and one count of Indecent Exposure) are contained in the Affidavit of Probable Cause dated December 12, 2024. Those factual allegations will not be reproduced here.

At the time of the hearing, the Commonwealth presented three witnesses, each of whom testified as to the alleged statements made by the four (4) year old child victim (VC). The Commonwealth also entered into evidence two Exhibits, one of which was a copy of the CAC interview.

Sherry Moroz (Moroz), a qualified Forensic Interviewer at the CAC, testified that she j interviewed the VC on July 8, 2024. During the interview, the VC stated to Moroz that the accused put his hand between the VC’s leg, swiped up and wiggled his fingers. The VC also !

I gestured (up and down motion) how the accused had her touch his penis. Moroz stated the VC | acted appropriately for a four-year child, understood and answered the questions. Moroz further £ ■ jf*'* F I 'K-?- -t V-_ . stated that she did not recall the VC using language that is more advanced for her age.

Following conclusion of the hearing, this Court did review the CAC interview entered into evidence by the Commonwealth. During the VC’s CAC interview, she disclosed that “she walked over to [the accused’s] room”, her clothes [were] on when [the accused] wiggled on my skin” and that the accused got to her skin by “using his finger.” As the VC was making the above statements she was pointing to her groin area. When Moroz asked her what she called her private area, the VC stated her “private.” When Moroz asked the VC what she calls a boys private part, the VC stated a “cooch.” The VC went on to say that she did tell her mom and “Grandzy”, that the accused told her not to tell and that what she described happened “a lot of times.” On cross-examination, Moroz acknowledged that the VC’s mother and grandmother brought her to the CAC interview.

The Commonwealth next called the VC’s maternal grandmother. testified that following a custody exchange and after she returned to her home with the VC, the VC stated to her “Gram I have to tell you something. [The accused] was kissing my pee bug.” Erowh further testified that the VC stated that this happened in the AL ft- S- D • accused’s bedroom while everyone was sleeping. BruwAthen told the VC’s mother, SunmiS then notified law enforcement and the contact with law „ . . . W.£> . frl.g , enforcement then led to the CAC interview. During the cross-examination of tsrouf a, farowfo _YW-g ■ indicated that there currently is custody litigation involving the VC. CrmVn also stated on cross that she did not discuss the events described by the VC with her prior to taking the child to the police station or the CAC. $3. s.h.

The final witness called by the Commonwealth was Dietrich. Tnranra, testified that on P-ft • rws.'s S-P-’J June 20, 2024 called her and said to come to torownl^ house. After wntBr* arrival, (Ybfl. S-0 ■ S D. tftiSlphad Diotncli ask the VC questions. testified that the VC was crying and upset and that while at her Father’s home, the accused woke her up and made her do things “unacceptable things she didn’t want to do.” Specifically, the VC stated to VlcluCll that she “had to lick [the accused] and [the accused] made her return the favor.” DiclfiiiA also testified that the VC described the up and down hand motion that the accused made the VC perform on him.

nbfurther stated that the VC was told by the accused “not to tell”, that the VC was “scared $ .0. to tell” and that the VC said it happened both a million times and one time, mcu'itft testified to additional statements made by the VC to her to include “[the accused] licked my bug, made me lick him, made me do [up and down hand motion] on him, [and that the accused] was small and s-.b. shriveled up.” On cross-examination, UiciriZb stated that although the current custody order calls for 50/50, she is not allowing the VC to go to her Father’s home out of concern for the VC J J.b. but that Father may visit with the VC at/Tarama home. UjcIridlJ continued by stating that she intends to file for full custody. Father has not paid child support and that Father has displayed a lack of involvement in the life of the VC.

Defense counsel called the mother of the juvenile, •, to testify. UhrHh testified G.C. that she had a conversation with UkIEcI? after tQib'i* received the charges filed against her son.

During that conversation, tfiBlTIgB stated to her that “I know nothing happened but Julius (Father of the VC) is going to get in trouble and not [the accused juvenile] and that will take care of the custody.

Analysis Under 42 Pa.C.S.A. Section 5985.1(a): (1) An out-of-court statement made by a child victim or witness, who at the time the statement was made was 16 years of age or younger, describing any of the offenses enumerated in paragraph (2), [Chapter 31 (relating to sexual offenses)], 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 (“) the child either; (A) testifies at the proceeding; or (B) is unavailable as a witness.

Although the Commonwealth did not specifically state that the VC will testify, it is inferred that the VC will testify because the Commonwealth also filed a Motion to Permit Testimony by Contemporaneous Alternative Method and that Motion is unopposed.

To be constitutionally valid under the Confrontation Clause, “the evidence admitted under section 5985.1 must possess ‘particularized guarantees of trustworthiness’ as adduced from the totality of the circumstances surrounding the out-of-court statement made by the child victim.” Commonwealth v. Hanawalt, 615 A.2d 432, 435 (Pa. Super. 1992). The United States Supreme Court has not endorsed a mechanical test for determining when hearsay statements made by a child victim of sexual abuse “possess particularized guarantees of trustworthiness,” under the Confrontation Clause. IdaX 438. However, the Supreme Court did provide that the “main consideration in making such a determination is whether the child declarant was particularly likely to be telling the truth when the statement was made.” Id. The Supreme Court further “identified a non-inclusive list of factors to consider when making such a determination,” Id, to include: “(1) the spontaneity and consistent repetition of the statement(s); (2) the mental state of the declarant; (3) the use of terminology unexpected of a child of similar age; and (4) the lack of motive to fabricate.” Id. Arguably, the VC’s statements to Urowil were spontaneous. However, it is difficult to ascertain the degree of spontaneity of the VC’s statements to • SEEP testified that she advised Luclutd to come to her house and question the VC regarding the statements the VC m.fo - m.6' s-fr- made to BrEEft. Already armed with the information possessed bySr33B by the time hicTricni <V\.fe s.o. arrived at Mi£&i&home, thenlob then proceeded to question the VC.

Moreover, although vEEEhjprovided significantly more detail regarding the statements - S-0- made to her by the VC, the VC’s statements to bothilmwS and SEEE5 differ significantly from the statements later made by the VC to Moroz. Not once during the VC’s interview with Moroz did the VC make any statements regarding bug, pee bug or the act of licking. The only common • S.P- denominators between the statements made by the VC to tkown, Uiclnch and Moroz is the location of the alleged conduct committed by the accused, the up and down hand gesture made Wife- by the VC (BEES did not testify that the VC described the up and down hand motion), and finally, that the VC was not to tell anyone. In short, although the VC’s initial statements to CPS2O can be considered spontaneous, the subsequent statements made by the VC lack spontaneity and consistency.

Outside of Moroz stating that the VC acted like a four-year-old and understood and answered the questions, there was no testimony received relative to the mental state of the VC or the VC’s use of terminology unexpected of a child of similar age. The lack of testimony relative j to these factors is neither a detriment nor a benefit to the Commonwealth or Defense. 1

Finally, assuming for the sake of argument that the VC’s statements were both Okfe S-D- spontaneous and consistent, the testimony of both SEES® and fhetrinfr is highly suggestive of a motive to blame the accused juvenile. Specifically, BHJSD testified that she is aware of custody y.o. C-P. litigation between IheliiCil and the VC’s Father. Diclricli testified very specifically to her discontent with the VC’s Father as it relates to child support, physical custody and the Father’s j.t>. lack of involvement in the VC’s life. In fact, most of the testimony offered by regarding her discontent of Father was unsolicited. Additionally, the testimony offered by forb^supports p.6 the Court’s suspicion regarding anddeEcOmotivation to blame the accused juvenile.

In sum, although it is not lost on the Court that the VC’s initial statement totlroui) is arguably spontaneous, there is a lack of consistency of repetition relative to the VC’s subsequent statements. Moreover, coupled with the strong possibility that BTU^ and CldlficH possess a motive to blame the accused juvenile, it is concluded that based on the totality of circumstances, the statements made by the VC to CESh, Uicmcli and Moroz do not possess the particularized guarantees of trustworthiness that the VC was telling the truth when the statements were made.

Accordingly, the Commonwealth’s Motion to Admit Out of Court Statements is DENIED and no out of court statements shall be admitted. However, because the accused juvenile does not oppose the Commonwealth’s request for testimony by contemporaneous I alternative method, that Motion is GRANTED.

Because this decision materially effects the Commonwealth’s case, this matter should be stayed pending the pursuit of an interlocutory appeal by the Commonwealth.

I By The Court, !

✓''"Iwan C. Gardner, Judge / / RCG/kbc / / ■ cc: D>(E.B.)

VJidhael Dinges, Esq.

ATO G^Weber, Esq.

J-S34032-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 IN THE INT. OF: C.A.H., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: COMMONWEALTH OF : PENNSYLVANIA : : : : : No. 677 MDA 2025 Appeal from the Order Entered May 20, 2025 In the Court of Common Pleas of Lycoming County Juvenile Division at No(s): CP-41-JV-0000010-2025

BEFORE: STABILE, J., SULLIVAN, J., and BENDER, P.J.E.

DISSENTING MEMORANDUM BY SULLIVAN, J.: FILED: JUNE 25, 2026 After a thorough review of the record and the trial court opinion in this matter, I believe the trial court erred as a matter of law by misapplying the factors used to evaluate the admission of statements under the Tender Years Hearsay Act (“TYHA”), failing to address certain of the factors, and not considering the totality of the evidence. Therefore, I respectfully dissent.

This Court has held that in deciding the admissibility of a child-victim’s out-of-court statement to a third-party under the TYHA, a trial court should consider, inter alia, “the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age, and the lack of a motive to fabricate.” Commonwealth v. Strafford, 194 A.3d 168, 173 (Pa. Super. 2018) (quotation marks, citation, and brackets omitted); see also Commonwealth v. Lyons, 833 A.2d 245, J-S34032-25

255 (Pa. Super. 2003) (explaining courts are not limited to this specific set of factors when determining whether TYHA testimony has sufficient indicia of reliability). Under the TYHA, “a trial court must consider the totality of the circumstances when determining whether a child’s out-of-court statement is trustworthy.” Interest of D.C., 263 A.3d 326, 335 (Pa. Super. 2021) (emphasis added).

Here, in its brief amended opinion, the trial court misapplied certain of the relevant factors, failed to address other factors, and did not look at the totality of the evidence, instead focusing almost exclusively on the issue of alleged custody disagreements between the victim’s parents (“Mother” and “Father”).1 See Amended Trial Court Opinion, 5/22/25, at 4-6 (unnumbered).

Because the trial court did not look at the totality of the circumstances and failed to include several relevant facts in its opinion, I include a more detailed version of the evidence, not to engage in improper fact-finding, but to demonstrate the trial court’s failure to assess the factors under the proper legal standard.

Statements Made to Maternal Grandmother (“MGM”) and Mother

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Here, the record reflects MGM picked up the victim at a custody exchange spot after the victim spent the weekend with Father. See N.T., 5/15/25, at 15-17. As MGM and the victim were walking to MGM’s house, the victim said she had to tell her “something.” Id. at 18. The victim then stated “Uncle” was “kissing [my] pee bug.” Id. MGM said he was not allowed to do that and the victim responded it was happening in his bedroom while the others in the household were asleep. See id. On cross-examination, MGM acknowledged she was aware of custody issues between Father and Mother.

See id. at 20-21. MGM denied having any further discussions of the abuse with the victim. See id. at 23. She noted the victim was not told in advance that they were going to see the police or a forensic interviewer. See id. Mother testified that MGM called her and asked her to come over to her house because the victim had something to tell her. See id. at 26. Mother said when she arrived the victim was “crying and very upset.” Id. at 27. The victim said she was asleep, as was the rest of the household, when Uncle woke her, took her into his bedroom, licked her and made her lick him “down there”, and then she made masturbatory hand gestures. Id. at 27-28.

The victim explained this had happened several times, but she was afraid and Uncle had told her not to tell anybody. See id. at 28-29. Mother corroborated MGM’s testimony that they took the victim to the police and to the forensic interview but never questioned the victim any further about the abuse. See id. at 29-35. On cross-examination, Mother acknowledged she was unhappy

-3- J-S34032-25 with the 50-50 custody split and that Father did not pay child support but stated she had not yet filed for a modification of custody. See id. at 35-36.

Based upon this testimony, the trial court barred MGM’s and Mother’s proposed testimony under the TYHA. In evaluating the factors, the court concluded with respect to spontaneity, although the four-year-old victim’s statements to MGM were “arguably spontaneous,” the statements she made to her mother (“Mother”) were not.2 See Amended Trial Court Opinion, 5/22/25, at 5 (unnumbered). With respect to the victim’s statements to Mother, the trial court states Mother already knew the content of the victim’s statements to MGM and then questioned her about them. See id. at 5 (unnumbered).

The trial court also found the statements to MGM and Mother were inconsistent, although the court did not explain what exactly it found inconsistent between the statements to MGM and to Mother. See Amended Trial Court Opinion, 5/22/25, at 5 (unnumbered). The trial court never addressed the factor concerning the victim’s mental state at the time of disclosure. See Amended Trial Court Opinion, 5/22/25, at 1-6 (unnumbered).

The trial court also did not address, in the context of MGM’s and Mother’s testimony, whether the victim used language which would be considered age-

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-4- J-S34032-25 inappropriate for a four-year-old. See id. The trial court did not address whether the victim had motive to lie, instead it gave heavy (almost exclusive) weight to its conclusion that MGM and Mother had reason to lie about Uncle abusing the victim because of the custody dispute between Mother and Father. See id. at 5-6.

For the following reasons, I believe the trial court’s decision to bar the testimony of MGM and Mother was error. Firstly, the trial court appears to have interpreted the word “spontaneous” employing a layman’s or dictionary definition, rather than a legal definition. See id. The court essentially equated spontaneity with an automatic or sudden response. This Court has determined spontaneity of the child/victim statement under the TYHA, “is typically discussed in the sense of not being asked a suggestive or leading question[.],” and rejected an assertion of “spontaneity” as akin to an excited utterance.

Commonwealth v. Newcomb, 311 A.3d 604 (Pa. Super. 2023) (unpublished memorandum, at *5) (citing, inter alia, Stafford).3 See also Commonwealth v. Schweikarth, 339 A.3d 391 (Pa. Super. 2025) (unpublished memorandum, at *5-*6) (concluding victim’s statements were spontaneous under the TYHA when made in response to her best friend’s question if something was bothering her).

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-5- J-S34032-25

Clearly, the victim’s statements to MGM were spontaneous in both senses of the word, as the uncontested testimony shows the Victim brought up the topic with MGM following a weekend spent with Father and Uncle. See N.T., 5/15/25, at 15-21. As to the victim’s statements to Mother, the record does not support the trial court’s conclusion that the victim only disclosed to Mother in response to questioning.4 Rather, Mother’s uncontradicted testimony established she went to MGM’s home, found the victim upset and crying, and the victim immediately disclosed the abuse to her. See id. at 27.

It was only after this disclosure that Mother briefly questioned the victim before calling the police. Further, Mother testified that none of her questions were leading but sought only to clarify she understood what the victim was saying. See id. at 27. Thus, I believe the trial court erred as a matter of law in concluding the victim’s disclosures to Mother and MGM were not spontaneous vis-à-vis the TYHA reliability analysis. See Commonwealth v. Barnett, 50 A.3d 176, 184, 187 (Pa. Super. 2012) (affirming admission of mother’s statements regarding her daughter’s disclosure of sexual abuse even though mother specifically questioned daughter after being informed by a relative that the defendant had abused another child); see also Schweikarth, supra; Newcomb, supra.

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-6- J-S34032-25

Second, the trial court erred in finding the victim’s statements were not consistent. The trial court did not point to any inconsistency between the statements to MGM and Mother. While her statement to Mother was slightly more detailed, in each statement the victim named Uncle as her abuser, stated the abuse occurred at night while everyone was sleeping, claimed Uncle performed oral sex on her and made a hand gesture indicative of masturbating a man. See N.T., 5/15/25, at 18, 27-28.

Although a victim’s mental state at the time of disclosure is a significant factor in the evaluation of the reliability of a statement pursuant to the TYHA, the trial court here did not discuss it, nor explain why it failed to consider this important factor. See Amended Trial Court Opinion, 5/22/25, at 1-6 (unnumbered). Review of the record shows both MGM and Mother testified the victim was upset and crying when she made the disclosures. See N.T., 5/15/25, at 18, 27. This Court has affirmed the admission of TYHA testimony where, inter alia, the victim reacted to seeing the defendant’s picture on television by shouting and trying to crawl away. See Lyons, 833 A.2d at 256; see also Barnett, 50 A.3d at 184, 187 (affirming admission of one of the victims’ statements to her mother, where victim was uncomfortable and awkward during the disclosure); Commonwealth v. Moore, 258 A.3d 552 (Pa. Super. 2021) (unpublished memorandum at *9-*10) (admitting testimony under TYHA where victim was upset and crying during her disclosure of abuse).

-7- J-S34032-25

The trial court likewise did not discuss the use of age-inappropriate language with respect to the victim’s disclosure to MGM and Mother. See Amended Trial Court Opinion, 5/22/25, at 1-6 (unnumbered). It assessed this factor as “neutral” because of the lack of testimony offered on the subject.

See Amended Trial Court Opinion, 5/22/25, at 2, 5 (unnumbered). See id. at 5. Again, my review of the record shows otherwise. MGM testified the victim said Uncle “kiss[ed] her pee bug.” N.T., 5/15/25, at 18. Certainly, “kissing” a “pee bug” is appropriate language for a four-year-old describing oral sex. See Barnett, supra at 183-84, 187-88; Moore, supra. In finding the victim’s statements to MGM and Mother inadmissible because they had a motive to lie, the trial court incorrectly analyzed this factor. The analysis of this factor focuses on whether the victim had a motive to lie, not whether the proposed witnesses may have a motive to lie. See Strafford, 194 A.3d at 174 (affirming trial court’s admission of TYHA testimony where there was no indication the child victim had a motive to fabricate); Barnett, 50 A.3d at 187-88 (rejecting claim that victim had a motive to lie because of minor discrepancies regarding recent talks about sex at her school and with her mother); Lyons, 833 A.2d at 255 (stating “[t]he main consideration for determining when hearsay statements made by a child witness are sufficiently reliable [to be admitted under the TYHA] is whether the child declarant was particularly likely to be telling the truth when the statement was made”) (emphasis added); see also Commonwealth

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v. Melendez, 2026 WL 1122141 (Pa. Super. Apr. 24, 2026) (unpublished memorandum at *5-*6) (affirming trial court’s decision to admit statements made by the victim to her mother and a forensic interviewer despite defendant’s claim the victim had a motive to lie because she wanted to get him in trouble). The record reveals the trial court did not discuss the victim’s possible motive to lie, if any. The court also did not discuss testimony from any witness that child was being coached to lie.

Regarding the issue of custody proceedings, while the fact of on-going custody proceedings and any bias the witnesses may have is a factor for a court to consider, it is not dispositive. See Commonwealth v. Outlaw, 329 A.3d 617 (Pa. Super. 2024) (unpublished memorandum at *3); see also Commonwealth v. Cope, 304 A.3d 762 (Pa. Super. 2023) (unpublished memorandum at *10) (rejecting defendant’s claim child victim had a motive to lie because he did not disclose abuse until being directly questioned by his mother who had pending felony charges against her, and noting mother had been untruthful in the past).

Here, MGM briefly testified that there was on-going custody litigation.

See N.T., 5/15/25, 20-21. MGM did not express any animus against Father or Uncle, and the trial court specifically found the victim’s disclosure to her was spontaneous. See Amended Trial Court Opinion, 5/22/25, at 4 (unnumbered). The trial court does not point to anything except its own

-9- J-S34032-25 unsubstantiated suspicions to support its assertion of MGM’s bias. See id. at 5-6 (unnumbered).

As to Mother’s bias, it is plain Mother was unhappy with the 50/50 custody split and the fact she did not receive child support. See N.T., 5/15/25, at 35-36. However, there is nothing in the record that shows there is any on- going court action, and Mother gave uncontradicted testimony she had not filed anything at that point. See id. Furthermore, Mother’s unhappiness with what had been the current custody arrangement with the child’s Father, does not explain why she would have bias against Uncle, given that a custody court could have retained the 50/50 custody so long as Father was no longer living with Uncle and agreed that Uncle could not have contact with the victim.

Again, given Mother’s testimony about the circumstances underlying the victim’s disclosure, the trial court’s speculations regarding bias are insufficient to defeat the weight of the other factors supporting the admission of the victim’s statements. See Outlaw, supra, at *3 (affirming trial court’s admission of TYHA testimony from a mother and a maternal grandmother against father, despite an on-going custody dispute, noting their bias goes to the weight of their testimony and not admissibility).

Although the list of factors set forth in Strafford are not exclusive, they are instructive for application of the totality of the circumstances test employed in determining the reliability and admissibility of a child victim’s statement under the TYHA. Id. 194 A.3d at 173. The trial court here

- 10 - J-S34032-25 depended almost exclusively on MGM’s and Mother’s possible bias in a custody issue with child’s Father (not the Uncle) and did not employ other suggested factors or consider the factors with an eye toward the child victim.

Given the lack of analysis incorporating at least some of the reliability standards and the focus of attention on MGM and Mother instead of the reliability of the child victim’s statements, I believe the trial court erred in finding the statements inadmissible under the TYHA and I would reverse that ruling.

Statements Made to the Forensic Interviewer Forensic interviewer Sherry Moroz (“Ms. Moroz”) testified as an expert witness at the in camera hearing and the trial court viewed a video5 of the interview. See N.T. 5/15/25, at 4-6; see also Amended Trial Court Opinion, 5/22/25, at 1 (unnumbered). Ms. Moroz initially began to testify about her methods and the way she conducts an interview, however, the trial court cut off that portion of her testimony, asking if it was “necessary.” N.T., 5/22/25, at 8. Ms. Moroz stated the victim disclosed to her that Uncle touched her in between her legs, wiggled his fingers up and around her genitals and again made a hand gesture that showing he had her masturbate him. See id. at 9.

Ms. Moroz was unable to recall the victim’s mental state during the interview

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I remind the Commonwealth that, as appellant, it bears the responsibility to ensure the record contains all materials necessary to the decision of an issue.

- 11 - J-S34032-25 but said she did not recall the victim using any age-inappropriate language for a four-year-old. See id. Ms. Moroz further averred that the statements the victim made to her during the interview were consistent. See id. at 9-10.

The Commonwealth attempted to ask Ms. Moroz if she felt the victim’s statements were a “genuine response” and the trial court sustained an objection to that question. Id. at 10.

In discussing its decision that the forensic interview and Ms. Moroz’s testimony was not admissible, the trial court co-mingled its analysis of Ms. Moroz’s testimony with its analysis of MGM and Mother’s testimony. See id. at 5-6 (unnumbered). Thus, it is difficult to discern the court’s exact reasoning. See id. As discussed above, the trial court misapplied the common definition of the word “spontaneous” to its analysis and did not define “spontaneous” in the legal sense. See id. The trial court does not explain why the victim’s statements to Ms. Moroz were not spontaneous, although it earlier emphasized that Mother and MGM drove the victim to the forensic interview, which infers the trial court equated the passage of time with a lack of spontaneity and/or that being driven by Mother and MGM influenced the victim’s statements to Ms. Moroz. See id. at 2 (unnumbered).6 It then ____________________________________________

- 12 - J-S34032-25 concluded statements made during a scheduled forensic interview cannot be spontaneous. See id. at 5.

The court specifically found the victim’s statements were “significantly” different because she described molestation, and made the identical hand gesture, to Ms. Moroz while describing oral sex to MGM and Mother. Id. at 5.

Even though the trial court had the benefit of the video, it did not discuss the victim’s mental state during the disclosure to Ms. Moroz. See id. at 5-6.

The trial court acknowledged that Ms. Moroz testified she did not recall the victim using any language that would not be appropriate to her age and maturity level yet still found that factor “neutral”. Again, the trial court had the benefit of viewing the interview tape and does not cite any scientific, medical, or otherwise age-inappropriate language used by the victim in the video. The trial court also did not address why the victim had a motive to lie to Ms. Moroz, only stressing that MGM and Mother had a motive to fabricate allegations against the Uncle because of the custody dispute with Father. See id. at 6.

I see no legal basis for the exclusion of Ms. Moroz’s testimony and the forensic interview. When the legal meaning of “spontaneous” specific to the TYHA and adopted in Pennsylvania case law is applied to the victim’s

____________________________________________ interviews and the court cites no legal support for the insinuation that statements made during a forensic interview or to the police are only admissible under the TYHA if a neutral third-party transports the child.

- 13 - J-S34032-25 statements to Ms. Moroz, they are clearly spontaneous; nothing of record supports a finding Ms. Moroz asked any suggestive or leading questions. See N.T., 5/15/25, at 7, 10-11 (Ms. Moroz testified non-leading questions are asked in a forensic interview). Moreover, if the trial court’s interpretation of “spontaneous” were applied, testimony or video involving a forensic interviewer would never be admissible because forensic interviews occur subsequent to disclosure of child abuse to another individual. This simply defies common sense, and is contrary to Pennsylvania law. See Melendez, supra (affirming admission of a forensic interview under the TYHA where “[t]he victim was interviewed by a professional forensic interviewer in a neutral location outside the presence of any other person and was asked non- leading and non-suggestive questions, which resulted in lengthy and detailed disclosures.”).

The trial court also found the victim’s statements to Ms. Moroz were not consistent, explaining, although the four-year-old victim used masturbatory gestures to describe the abuse to MGM, Mother, and Ms. Moroz, she told MGM and Mother that Uncle licked her genitals and described him fingering her genitals to Ms. Moroz. See Amended Trial Court Opinion, 5/22/25, at 5 (unnumbered). However, there is a difference between a child being consistent in claiming abuse and a child making identical statements each

- 14 - J-S34032-25 time.7 We have long held minor inconsistencies or contradictions in statements do not prohibit their admission under the TYHA. See Newcomb, 311 A.3d 604, at *6. The victim consistently named Uncle as her abuser, consistently made masturbatory hand gestures to demonstrate what occurred, and consistently stated the abuse occurred multiple times at the house while the rest of the household was asleep. Although the victim told MGM and Mother that Uncle had performed oral sex on her and had her perform oral sex on him, and showed a hand gesture indicating he made her masturbate him, and told Ms. Moroz about an incident where Uncle touched her vaginal area and made the identical hand gesture, there is no reason to conclude on this record that Uncle had not committed all those types of abuse on different occasions. Thus, I would conclude the trial court erred in finding the victim made inconsistent statements. See id. (affirming trial court finding of consistency in repetition, where child disclosed separate instances of abuse concerning different acts by the same abuser and in one instance contradicted statements she had made in an earlier interview).

To the extent the trial court weighed a motive to fabricate to bar Ms. Moroz’s testimony about the victim’s disclosures to her, this is plain error.

There is no indication Ms. Moroz had any involvement in, or knowledge of, any

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- 15 - J-S34032-25 custody proceedings, or had any relationship with MGM or Mother that would show bias. Moreover, Ms. Moroz is a trained forensic interviewer, who testified as an expert, undoubtedly taught to spot “coaching” of a child.

For the reasons discussed above, I believe the trial court committed errors of law in its evaluation of the TYHA factors and abused its discretion by refusing to admit the testimony of Ms. Moroz. I would reverse the trial court’s order and direct the trial court to admit the child’s statements to MGM, Mother and Ms. Moroz pursuant to the TYHA. Accordingly, I respectfully dissent.

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