Pennsylvania's State Supreme Court to review 'Tender Years Act' in sex-abuse case

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The state Supreme Court has agreed to hear a case over whether a young girl's out-of-court statements were properly admitted in her father's child rape case, when the girl had previously been determined incompetent to testify.

A split state Superior Court panel granted a new trial to Jay Lee Walter Sr., who had been facing an effective life sentence following a Franklin County jury trial.

The state filed for an appeal and the justices granted review late last month.

The case involves the interplay between provisions of the "Tender Years Act," which allow for the admission of out-of-court statements of a child witness as hearsay evidence, and Pennsylvania Rule of Evidence 601(b), which requires a child witness be disqualified if he or she is too immature.

At the crux of Commonwealth vs. Walter is this central question: If a child's testimony is disqualified under 601(b), because he or she is too "immature," does that mean his or her out-of-court Tender Years statements are likewise inadmissible?

The Superior Court, in an unpublished memorandum opinion by Judge John T. Bender, narrowly ruled that it was.

"The [Tender Years Act] cannot grant license for the introduction of hearsay statements as reliable evidence when the witness who originally made them is so unreliable as to be disqualified from testifying," Judge Bender wrote for the panel.

The state's Tender Years Act says a 12-or-under child's hearsay comments -- to, say, a psychologist, a Children and Youth Services investigator, and so on -- can be admissible in court in certain instances, if the child for some reason is unavailable or unwilling to testify in court.

Significant to the lead opinion's holding were two sets of amendments to the Tender Years Act, from 1996 and 2004, which the panel said did not establish that unavailability was somehow a substitute for competence.

The majority interpreted the current statute to recognize the premise that a determination of unavailability presumes the witness is an otherwise competent one.

In a previous case -- Commonwealth vs. Hanawalt -- the Superior Court had ruled a trial court did not err in treating incompetence as grounds for an unavailability finding under the Tender Years Act. But Judge Bender said the Hanawalt case was not squarely on point (it only involved whether the admission of a Tender Years statement violated the defendant's right to confront and cross-examine), and it came before the 1996 and 2004 amendments.

Prior to 1996, Judge Bender said, the act allowed admission of a child's hearsay statements only if the child either testifies at the proceeding or if the child is both unavailable and there is corroborative evidence of the act.

The current version of the law restricts the impact of the emotional distress on the ability to testify. But a Franklin County prosecutor handling the Walter case said it was the "quintessential case" involving graphic details from witnesses with "no ax to grind."

"Unfortunately, out there on the street there's this mentality of, 'If they're under 3, it's free,' " said Lauren E. Sulcove of the Franklin County District Attorney's Office.

Ms. Sulcove said the Tender Years Act helped combat that problem, but the Superior Court's opinion increased the burden outside of the statute's language.

In 2010, a Franklin County jury convicted Walter of child rape, two counts of involuntary deviate sexual intercourse, indecent assault and endangering the welfare of a child. The man's daughter, identified in the opinion as "A.W.," was between the ages of 3 and 4 at the time of alleged abuse.

According to the Superior Court's opinion, an undisclosed third party first relayed the accusations to police.

A Franklin County CYS caseworker, Leann Briggs, interviewed A.W. and subsequently put her in foster care and contacted the state police.

Three hearsay witnesses then allegedly relayed statements -- some more graphic than others -- that A.W. had made to them, implicating that Walter had raped his toddler.

But the Superior Court's majority opinion included notes testimony from A.W. during a preliminary hearing to support the notion that she could not distinguish truth from falsehood or accurately perceive reality.

At one point, A.W. said telling a lie was a good thing. At another point, she identified a Children's Aid Society diagnostic coordinator as a dog, and then Bugs Bunny. Under questioning, she said that her father had licked and put his nose on her body parts, but also responded "yes" that Walter had brought in a horse and a gorilla to do the same.

According to the Superior Court's opinion, this prompted the state to concede that A.W. could not testify but that it was a "close call."

There was no conclusive physical evidence in the case.

During the trial, the state called the child's foster mother, state troopers, the nurse who examined her, the three hearsay witnesses and others. It was those hearsay statements that the court allowed under the Tender Years Act in the absence of A.W.'s availability.

The state never called A.W., although Walter tried to call her as a defense witness.

The jury found Walter guilty and he was subsequently sentenced to 30 to 60 years' incarceration.

Vacating Walter's sentence, the Superior Court ruled that a new trial was the only "viable remedy to the quandary apparent in this case," and said A.W.'s competence as a witness must be more thoroughly examined under Rule 601(b) for the upcoming proceedings.

The panel also noted that the "bulk" of the state's case against Walter came through the hearsay statements.

In a strongly worded dissenting opinion, Judge Olson said that the competence of the witness was only one of the factors used in determining whether an out-of-court statement meets the "indicia of reliability" to admit the statement under the Tender Years Act.

But competency, Judge Olson said, was not the "threshold determination" in admitting the statements.


Ben Present: or 215-557-2315. To read more articles like this, visit


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