### J-A18041- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAY LEE WALTER, SR.

Appellant No. 1829 MDA 2010

Appeal from the Judgment of Sentence November 1

, 2010

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP

- 28

- CR -0000532-2009

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2014

Jay Lee Walter, Sr., appeals from his judgment of se ntence, entered in

the Court of Common Pleas of Franklin County, follow ing his conviction by a

jury for rape of a child (under 13), involuntary dev iate sexual intercourse

with a child (under 13), indecent assault, endangering the welfare of a child,

and aggravated indecent assault of a child. The charge s stemmed from

events that occurred between October 2006 and October 20 08 during which

Walter allegedly had sexual intercourse with his daught er (born November

2003). Walter was sentenced to an aggregate term of 2 3 to 50 years’

incarceration and was ultimately determined to be a sex ually violent

predator (SVP) pursuant to 42 Pa.C.S. § 9792. After careful review, we

affirm.

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This case has been remanded to this Court from our Sup reme Court,

see Commonwealth v. Walter , No. 53 MAP 2012, 2014 Pa. LEXIS 428

(Pa. Feb. 18, 2014), which reversed our previous decisio n finding the trial

court abused its dis cretion by admitting the victim’s out

- of -court statements

into evidence pursuant to the Tender Years Hearsay Act (TYHA), 42

Pa.C.S.A. § 5985.1, 1 

### and held that that a child’s competency under Pa.R.E.

____________________________________________

1 

### The TYHA allows statements made by a child victim of se xual assault to be

admitted into evidence, if the statements are relevant and sufficiently

reliable. The statute provides, in relevant part:

(a) General rule.

— An out- of -court statement made by a

child victim or witness, who at the time the statemen t

was made was 12 years of age or younger, describing any

of the offenses enumerated in 18 Pa.C.S. Chs. 25 (rel ating to

criminal homicide), 27 (relating to assault), 29 (rela ting to

kidnapping), 31 (relating to sexual offense), 35 (rel ating to

burglary and other criminal intrusion) and 37 (relati ng to

robbery), not otherwise admissible by statute or rule o f

evidence, is admissible in evidence in any criminal or ci vil

proceeding if:

(1) the court finds, in an in camera hearing, that

the evidence is relevant and that the time, content

and circumstances of the s tatement provide

sufficient indicia of reliability; and

(2) the child either:

(i) testifies at the proceeding; or

(ii) is unavailable as a witne ss.

(a.1) Emotional distress.

— In order to make a finding

under subsection (a)(2)(ii) that the child is unavailab le as

a witness, the court must determine, based on eviden ce

presented to it, that testimony by the child as a witn ess

will result in the child suffering serious emotional distress

(Footnote Continued Next Page)

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601 is not a prerequisite to the admission of hearsay st atements under the

TYHA. In reaching its decision, the Supreme Court also concluded that the

trial court correctly determined that the instant victim was unavailable as a

witness. 2 

### On remand, our Court has been instructed to address Wal ter’s

remaining issues on appeal: 3



### (1) Did the Court err in prohibiting the Defense from ha ving

the opportunity, as requested, to retain an expert o n the

issues related to the statements allegedly made by the

victim?

(2) Did the Court err in precluding the defense from calli ng the

alleged victim as a witness at trial?

(Footnote Continued)

_______________________



### that would substantially impair the child's ability to

reasonably communicate. In making this determination,

the court may do all of the following:

(1) Observe and question the child, either inside

or outside the courtroom.

(2) Hear testimony of a parent or custodian of any

other person, such as a person who has dealt with

the child in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985.1(a), (a.1) (emphasis added).

2 

### Specifically, the Supreme Court held that ou r Court “erred in finding

erroneous the trial court’s determination that the tim e, content, and

circumstances of the victim’s statements provided sufficient indicia of

reliability.” Walter , 2014 Pa. LEXIS 428, at *35.

3 

### Walter’s first issue on appeal was disposed of by the Supreme Court. See

Walter , 2014 Pa. LEXIS 428, at *35-36 (trial court correctly concluded

victim was unavailable as witness and, therefore, that h er out- of -court

statements provided sufficient indicia of reliability so as to be admissible

under TYHA). Therefore, we need not address it on ap peal.

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(3) Did the Court err in precluding the Defense from brin ging

forth at trial testimony of eye- witnesses as to Jay Walters’

interaction with the alleged victim?

(4) Did the Court err in precluding the Defense from brin ging

forth at trial the fact that alleged eye-witness [sic] Angel

Morris has been convicted of a criminal act similar to tha t

in which the Defendant was charged?

(5) Did the Court err in denying the Defense’s request to have

the Defendant professionally evaluated to determine i f he

was competent to stand trial and/or to withdraw a guil ty

plea tendered?

(6) Was the Defendant inappropriately motivated to withd raw

his plea of guilty by the fact that the Franklin Cou nty

Probation Department refused to release the Defendant on

pr e-trial release pending sentencing?

(7) Was Walter inappropriately deemed to be a “sexually

violent predator” pursuant to 42 Pa.C.S.A. § 9795.4?

The Supreme Court aptly summarized the underlying f acts of this case

as follows:

On October 17, 2008, Franklin County Children & Yout h Services

("CYS") received an anonymous call regarding the welfare of

A.W. (hereinafter "victim"), the four-year-old daught er of

Appellee Jay Lee Walter. A CYS caseworker, Leann Br iggs,

asked Appellee and his wife, the victim's mother, to bring the

victim to the agency, so that Briggs could verify the ch ild's

safety. During an interview Briggs conducted with the v ictim, the

victim indicated that she was afraid of Appellee because of

"Chuckie," a name she used to refer to Appellee's penis. T he

victim told Briggs that Chuckie moves back and forth on top of

her, and that Chuckie goes inside of her body, specifi cally, her

vagina. The victim also told Briggs that Appellee ma de the

victim take her clothes off, lie down, and then forced the family

dog, "Baby," to lick the victim's vagina. Following Bri ggs'

interview, the victim was placed in foster care on an emergency

basis. Pennsylvania State Police Trooper Courtney Patti llo began

an investigation, during which time she interviewed v arious

wi tnesses, including Appellee. On October 20, 2008, Appe llee

was charged with rape of a child, two counts of involunt ary

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deviate sexual intercourse with a child, indecent assault , and

endangering the welfare of a child.

Thereafter, the Commonwealth filed a motion seeking to

introduce certain statements made by the victim to thir d parties

into evidence pursuant to the TYHA.

* * *

At a hearing on January 30, 2009 ("TYHA Hearing"), th e

Commonwealth conducted an in camera evaluation of the victim,

who by then had turned five. The trial court asked t he victim a

number of questions, including questions regarding her n ame,

age, and living arrangements, and she appeared to giv e

appropriate answers. However, when the Commonwealth asked

the victim various questions related to her understand ing of

truth and lies, the victim gave a number of nonsensical or

bizarre answers.

The Commonwealth presented the testimony of the CYS

caseworker, Briggs, as well as testimony by the victim's foster

mother ("Foster Mother"), with whom the victim had bee n living

since October 17, 2008. Foster Mother testified regardin g the

emotional effect court hearings and appearances had on the

victim; specifically, Foster Mother testified that the vi ctim

became "very unsettled" and "very emotional" in the days

following an appearance at the courthouse, and would su ffer

from nightmares for several days after attending court

proceedings. N.T. Hearing, 1/30/09, at 42. On one occa sion,

immediately after a preparatory session with the prosecu tor, the

victim smeared feces on the walls of the house. Foster M other

stated that, in her view, requiring the victim to test ify in front of

Appellee would traumatize the victim.

Foster Mother also testified regarding an incident that occurred

at the end of October 2008, shortly after the victim m oved in

with the family. According to Foster Mother, the vict im was on

the toilet and Foster Mother was cleaning up after he r when the

victim suddenly asked, "is there anymore blood?" Id. at 39.

When Foster Mother asked the victim what she meant, th e victim

replied, "there was blood when Daddy Jay sticks his fin ger in

there." Id. Foster Mother recounted another occasion on which

she was awakened as the victim screamed and ran into Foste r

Mother's bedroom. The victim was crying and shaking a nd

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stated that she was "afraid that daddy was going to brin g

Chuckie to her room," and that "Chuckie bites." Id. at 40. The

victim told Foster Mother that "Chuckie is daddy's body' s part,"

and drew a picture which indicated that that "Chuckie" wa s her

father's penis. Id.

The Commonwealth next presented the testimony of Ange la

Morris, a family friend of the Walters. Morris testifie d that,

around October 2007, she and her son were at a child's b irthday

party at which the victim was also a guest. During the party,

the victim grabbed Morris' son's "private part." Id. at 50. When

Morris confronted the victim about the behavior, the victim

responded, "it was okay to do that;" "daddy says it's okay; " and

that she "touch[es] daddy there." Id. at 50- 51.

Diane Bulger, a neighbor and former friend of the f amily, also

testified at the TYHA hearing. Bulger testified that, in October

2008, she went to the Chambersburg Mall with her son, the

victim, Appellee, and Appellee's wife. Bulger testifie d that

Appellee took the victim into the men's bathroom at t he mall,

and when the victim exited the bathroom, she was crying and

stated, "don't let daddy hurt me down below." Id. at 61.

Another friend of the family, Rebecca Alkire, testifie d that, in

May 2008, while she was babysitting the victim, she was in the

process of changing the victim's diaper when the victim st ated,

"watch [your] fingers." Id. at 64. Concerned about the

statement, Alkire later discussed it with the victim's mo ther, who

explained that she and Appellee were trying to train the victim to

use this phrase if someone tried to touch her in her va ginal area.

Id. Alkire recounted another time, in July or August 200 8, when

the victim was watching cartoons at Alkire's house and Alk ire

tickled the victim. The victim immediately became tens e, and

Alkire asked the victim if anyone had ever touched he r. The

victim replied that her daddy touches her "pussy" with his "dick."

Id. at 65.

On February 23, 2009, the trial court entered an ord er holding

the victim was competent to testify, but was unavailable as a

witness because testifying would cause her serious emotiona l

di stress that would substantially impair her ability to re asonably

communicate to the jury. Trial Court Order, 2/23/09, at 2. The

court, however, instructed the parties that the court's finding of

the victim's competence at the TYHA hearing did not p reclude

Appellee from challenging the child's competency at lat er stages

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of the proceedings. The court further concluded the state ments

the victim made to the five adult witnesses (Briggs, Fost er

Mother, Bulger, Morris, and Alkire) who testified at the TYHA

hearing, contained sufficient indicia of reliability t o be admissible

under the TYHA. Finally, the court granted the Commo nwealth's

motion to allow the victim to testify by contemporaneo us

alternative method.

A preliminary hearing was held on March 31, 2009, bef ore a

magisterial district judge ("MDJ") and the victim was called to

testify outside of Appellee's presence. However, followi ng

questioning of the victim, the MDJ concluded the victim was not,

in fact, competent to testify because, inter alia, she r epeatedly

stated that it was a "good thing" to tell a lie. N.T. Hearing,

3/31/09, at 10. Nevertheless, the MDJ proceeded with t he

preliminary hearing, and the prosecutor called the same

witnesses who previously testified at the TYHA hearing.

On July 19, 2010, a jury trial commenced, and the tri al court

permitted a defense witness to read into the record the victim's

testimony from both the TYHA hearing and the prelimi nary

hearing. The court also permitted the five adult witn esses to

testify pursuant to the TYHA regarding the statements m ade by

the victim. The jury convicted Appellee of all charge s, and the

trial court sentenced him to an aggregate term of 30 to 60

years[’] incarceration. Appellee also was ordered to und ergo an

evaluation by the Sexual Offender Assessment Board, an d,

ultimately, was determined to be a sexually violent predator.

Walter , 2014 Pa. LEXIS 428, at *1

- 10. After careful review, we affirm

Walter’s judgment of sentence based upon the well -reasoned decision

authored by the Honorable Douglas W. Herman.

Here, the trial court correctly disallowed Walter’s ex pert from

evaluating the victim’s competency and whether her mem ory had been

tainted as a result of improper interview techniques u sed in prior

proceedings. Walter hired an expert who prepared a p reliminary opinion,

based upon her review of the victim’s preliminary pro ceeding testimony and

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her viewing of a tape of the victim’s interview with a Franklin County

Children and Youth Services’ counselor. The expert opi ned that there were

“serious issues of the competence of this child to testify” an d recommended

a comprehensive evaluation of the child. However, whe n the

Commonwealth informed the court at a pretrial hearin g that it would not call

the child victim or play any interview videos of the v ictim, the court ruled

there was no further need to explore the issue of the child’s competency at

that time. 4 

### Moreover, while various adult witnesses did testify in camera to

statements made by the victim regarding the alleged a buse, the defense

nev er requested a “taint hearing” to determine whether th e victim was

coerced into making the relevant statements. Commonwealth v. Cesar

,

911 A.2d 978 (Pa. Super. 2006) (during hearing on co mpetency of child

witness on issue of taint, party alleging taint bears b urden of production of

evidence of taint and burden of persuasion to show tai nt by clear and

convincing evidence). Based on the fact that the court deemed the victim

competent (closer to the time that the actual statement s were made to adult

witness as opposed to a later scheduled competency hearing) , found an

indicia of reliability 5 

### in the victim’s statements, and because Walter failed to

____________________________________________

4 

### Prior to Walter’s motion to appoint an expert to det ermine the child

victim’s competency, the trial court had already deter mined that the victim

was competent to testify (albeit unavailable under secti on 5985.1 of the

TYHA).

5 

### Specifically, the court found that:

(Footnote Continued Next Page)

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produce evidence of any taint, the court correctly ruled that the expert

should not review the victim’s competenc y.

Moreover, the trial court correctly determined that t he victim was

unavailable to testify because doing so would result in her suffering serious

emotional distress to the point where she could not rea sonably

communicate. See 42 Pa.C.S. § 5985.1(a.1). Accordingly, Walter’s right to

compulsory process was not violated. Commonwealth v. Lyons , 833 A.2d

245, 254 (Pa. Super. 2003). The trial court also properly denied Walter’s

request to call witnesses to testify that they had observe d him with the

victim in the past and that he acted appropriately wi th the victim on many

occasions. Because the admission of such evidence would consti tute

character testimony, as well as specific instances of Walter’s conduct, it is

not admissible under Pa.R.E. 404, 405.

(Footnote Continued)

_______________________



### [T]he child was particularly likely to be telling the truth when the

child made the statements in light of their spontaneity and

consistent repetition, the child’s unimpaired mental state at the

time of the alleged incidents and at the time the chil d made the

statements to the adults, the use of graphic sexual termi nology

and descriptions which is unexpected of a child of similar age,

and the lack of motive to fabricate or to make false s tatements

for the purpose of manipulating situations to her adv antage

insofar as the result of making the statements was remov al from

the only home the child has ever known.

Trial Court Order, 2/23/09, at 2.

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-

Additionally, the trial court correctly refused to per mit Walter to crossexamine witness, Angela Moore, about her past statuto ry sexual assault

convictions. Walter offered no evidence to show that Mo ore’s convictions

were relevant with regard to her bias or motive to testify falsely, or that they

were considered “other acts” under Pa.R.E. 404(b). More over, those

convictions were not considered crimen falsi crimes that would be admissible

under Pa.R.E. 609.

The trial court also correctly denied Walter’s request for a

competency/mental health evaluation. Walter’s answers were clear and

understandable throughout a hearing held on the issue, he presented no

evidence on the issue of his incompetency other than the fact that he had

mental health issues in the past and was emotional abou t the recent loss of

his father and the fact that his daughter had been ado pted. See

Commonwealth v. Chopak , 615 A.2d 696, 700 (Pa. 1992) (regarding

issue of defendant's competence, appellate courts recogniz e significance of

an d give deference to trial judge's determination of com petency based upon

trial judge’s ability to watch and evaluate defendant during proceedings).

The trial court correctly permitted Walter to withdra w his guilty plea

after an extensive colloquy where Walter indicated tha t he was innocent and

the Commonwealth would suffer no substantial prejudice from the

withdrawal. N.T. Withdraw of Guilty Plea Proceeding s, 4/7/2010, at 6-7, 13-

14. See Commonwealth v. Shaffer , 446 A.2d 591, 593 (Pa. 1982) (presentence requests to withdraw guilty plea should be libe rally granted when

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-

defendant shows “fair and just" reason to withdraw plea a bsent "substantial

prejudice;" mere assertion of innocence is "fair and just " reason for

withdrawal). Moreover, because Walter never requested reconsideration of

the plea withdrawal prior to trial, the claim that h is decision to withdraw his

plea was uninformed, which is raised for the first time on appeal, is waived.

Pa.R.A.P. 302(a).

Finally, the trial court properly classified Walter a s an SVP 6 

### where a

thirteen-year member of the Sexual Offenders Assessment Board (SOAB)

testified and the evidence clearly showed that Walter su ffers from a mental

abnormality (pedophilia) as defined in the Diagnostic and Statistical Manual

of Mental Disorders (DSM-IV), exhibited predatory beh avior in this case, and

where Walter’s behavior occurred with a child more than five years his minor

for over two years. Moreover, the expert’s use of the section 9795.4 factors

to make his SVP determination was not arbitrary; the expert’s assessment

fully discussed all of the factors pertaining to Walter and how they were

____________________________________________

6 

### A sexually violent predator is defined as a person who has been convicted

of a sexually violent offense as set forth in 42 Pa.C.S . § 9795.1 (relating to

registration) and who is determined to be a sexually v iolent predator under

42 Pa.C.S. § 9795.4 (relating to assessments) due to a mental abnormality

or personality disorder that makes the person likely to engage in predatory

sexually violent offenses. See 42 Pa.C.S. § 9792; see also

Commonwealth v. Krouse , 799 A.2d 835, 838 (Pa. Super. 2002) (en

banc). "Mental abnormality" is a congenital or acquired condition of a

person that affects the emotional or volitional capacit y of the person in a

manner that predisposes that person to the commission of criminal sexual

acts to a degree that makes the person a menace to the h ealth and safety of

other persons. 42 Pa.C.S. § 9792.

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-

relevant to his mental abnormality. See Commonwealth v. Feucht , 955

A.2d 377 (Pa. Super. 2008) (no statutory requirement that all or any

particular number section 9795.4 factors be present or ab sent to support

SVP designation; factors are not “a check list.”).

We direct the parties to attach a copy of the trial cou rt’s decisions, 7



### authored by Judge Herman, in the event of further p roceedings in the

matter.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2014

____________________________________________

7 

### See Order of Court, 2/24/2009; Opinion and Order, 1/6/ 2010; and Opinion

sur Pa.R.A.P. 1925(a) and Order of Court, 1/7/2011.Circulated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AMCirculated 08/26/2014 10:41 AM