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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 sentence, entered in 

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

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

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

and aggravated indecent assault of a child. The charges stemmed from 

events that occurred between October 2006 and October 2008 during which 

Walter allegedly had sexual intercourse with his daughter (born November 

2003). Walter was sentenced to an aggregate term of 23 to 50 years’ 

incarceration and was ultimately determined to be a sexually 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 Supreme Court, 

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

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

court abused its discretion 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 sexual 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 statement 

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

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

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

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

burglary and other criminal intrusion) and 37 (relating to 

robbery), not otherwise admissible by statute or rule of 

evidence, is admissible in evidence in any criminal or civil 

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 statement provide 

sufficient indicia of reliability; and 

 (2) the child either: 

 (i) testifies at the proceeding; or 

 (ii) is unavailable as a witness.

(a.1) Emotional distress.—In order to make a finding 

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

a witness, the court must determine, based on evidence 

presented to it, that testimony by the child as a witness 

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 statements 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 Walter’s 

remaining issues on appeal:3

(1) Did the Court err in prohibiting the Defense from having 

the opportunity, as requested, to retain an expert on the 

issues related to the statements allegedly made by the 

victim? 

(2) Did the Court err in precluding the defense from calling 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 our Court “erred in finding 

erroneous the trial court’s determination that the time, 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 her out-of-court 

statements provided sufficient indicia of reliability so as to be admissible 

under TYHA). Therefore, we need not address it on appeal. 
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(3) Did the Court err in precluding the Defense from bringing 

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 bringing 

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

Morris has been convicted of a criminal act similar to that 

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 if he 

was competent to stand trial and/or to withdraw a guilty 

plea tendered? 

(6) Was the Defendant inappropriately motivated to withdraw 

his plea of guilty by the fact that the Franklin County 

Probation Department refused to release the Defendant on 

pre-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 facts of this case 

as follows: 

On October 17, 2008, Franklin County Children & Youth Services 

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

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

Appellee Jay Lee Walter. A CYS caseworker, Leann Briggs, 

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

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

safety. During an interview Briggs conducted with the victim, the 

victim indicated that she was afraid of Appellee because of 

"Chuckie," a name she used to refer to Appellee's penis. The 

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

her, and that Chuckie goes inside of her body, specifically, her 

vagina. The victim also told Briggs that Appellee made the 

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

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

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

basis. Pennsylvania State Police Trooper Courtney Pattillo began 

an investigation, during which time she interviewed various 

witnesses, including Appellee. On October 20, 2008, Appellee 

was charged with rape of a child, two counts of involuntary 
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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 third parties 

into evidence pursuant to the TYHA. 

* * * 

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

Commonwealth conducted an in camera evaluation of the victim, 

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

number of questions, including questions regarding her name, 

age, and living arrangements, and she appeared to give 

appropriate answers. However, when the Commonwealth asked 

the victim various questions related to her understanding 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 been living 

since October 17, 2008. Foster Mother testified regarding the 

emotional effect court hearings and appearances had on the 

victim; specifically, Foster Mother testified that the victim 

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

following an appearance at the courthouse, and would suffer 

from nightmares for several days after attending court

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

immediately after a preparatory session with the prosecutor, the 

victim smeared feces on the walls of the house. Foster Mother 

stated that, in her view, requiring the victim to testify 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 moved in 

with the family. According to Foster Mother, the victim was on 

the toilet and Foster Mother was cleaning up after her when the 

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

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

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

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

she was awakened as the victim screamed and ran into Foster 

Mother's bedroom. The victim was crying and shaking and 
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stated that she was "afraid that daddy was going to bring 

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" was her 

father's penis. Id. 

The Commonwealth next presented the testimony of Angela 

Morris, a family friend of the Walters. Morris testified that, 

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

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 family, 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 testified that 

Appellee took the victim into the men's bathroom at the 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, testified that, in 

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

process of changing the victim's diaper when the victim stated, 

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

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

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

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

Id. Alkire recounted another time, in July or August 2008, when 

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

tickled the victim. The victim immediately became tense, and 

Alkire asked the victim if anyone had ever touched her. The 

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

Id. at 65. 

On February 23, 2009, the trial court entered an order holding 

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

witness because testifying would cause her serious emotional 

distress that would substantially impair her ability to reasonably 

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 preclude 

Appellee from challenging the child's competency at later stages 
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of the proceedings. The court further concluded the statements 

the victim made to the five adult witnesses (Briggs, Foster 

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

hearing, contained sufficient indicia of reliability to be admissible 

under the TYHA. Finally, the court granted the Commonwealth's 

motion to allow the victim to testify by contemporaneous 

alternative method. 

A preliminary hearing was held on March 31, 2009, before a 

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

testify outside of Appellee's presence. However, following 

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

in fact, competent to testify because, inter alia, she repeatedly 

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

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

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 trial court 

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

testimony from both the TYHA hearing and the preliminary 

hearing. The court also permitted the five adult witnesses to 

testify pursuant to the TYHA regarding the statements made by 

the victim. The jury convicted Appellee of all charges, and the 

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

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

evaluation by the Sexual Offender Assessment Board, and, 

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 expert from 

evaluating the victim’s competency and whether her memory had been 

tainted as a result of improper interview techniques used in prior 

proceedings. Walter hired an expert who prepared a preliminary opinion, 

based upon her review of the victim’s preliminary proceeding 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 opined that there were 

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

a comprehensive evaluation of the child. However, when the 

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

the child victim or play any interview videos of the victim, 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 abuse, the defense 

never requested a “taint hearing” to determine whether the victim was 

coerced into making the relevant statements. Commonwealth v. Cesar, 

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

witness on issue of taint, party alleging taint bears burden of production of 

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

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

competent (closer to the time that the actual statements were made to adult 

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

indicia of reliability5

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

____________________________________________ 

4

Prior to Walter’s motion to appoint an expert to determine the childvictim’s competency, the trial court had already determined that the victim 

was competent to testify (albeit unavailable under section 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 competency.

 Moreover, the trial court correctly determined that the victim was 

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

emotional distress to the point where she could not reasonably 

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 observed him with the 

victim in the past and that he acted appropriately with the victim on many 

occasions. Because the admission of such evidence would constitute 

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 child made the 

statements to the adults, the use of graphic sexual terminology 

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

and the lack of motive to fabricate or to make false statements 

for the purpose of manipulating situations to her advantage 

insofar as the result of making the statements was removal 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 permit Walter to crossexamine witness, Angela Moore, about her past statutory sexual assault 

convictions. Walter offered no evidence to show that Moore’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). Moreover, 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 about the recent loss of 

his father and the fact that his daughter had been adopted. See 

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

issue of defendant's competence, appellate courts recognize significance of 

and give deference to trial judge's determination of competency based upon 

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

 The trial court correctly permitted Walter to withdraw his guilty plea 

after an extensive colloquy where Walter indicated that he was innocent and 

the Commonwealth would suffer no substantial prejudice from the 

withdrawal. N.T. Withdraw of Guilty Plea Proceedings, 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 liberally granted when 
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defendant shows “fair and just" reason to withdraw plea absent "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 his 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 as an SVP6

 where a 

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

testified and the evidence clearly showed that Walter suffers from a mental 

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

of Mental Disorders (DSM-IV), exhibited predatory behavior 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 violent 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 capacity 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 health 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 absent to support 

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

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

authored by Judge Herman, in the event of further proceedings 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.
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