J. S08023/17

NON-PRECEDENTIAL DECISION -- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SHAUN MICHAEL HOWARD, : No. 769 WDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, April 29, 2016,

in the Court of Common Pleas of McKean County

Criminal Division at No. CP-42-CR-0000591-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 07, 2017

Shaun Michael Howard appeals from the April 29, 2016 judgment of 

sentence entered in the Court of Common Pleas of McKean County after a 

jury convicted him of 7 counts each of rape by forcible compulsion, rape of a 

child, involuntary deviate sexual intercourse by force, involuntary deviate 

sexual intercourse with a child less than 13 years of age, and incest of minor 

-- child is less than 13; 4 counts of aggravated indecent assault of a child 

less than 13 years of age; 12 counts of indecent assault -- victim less than 

13 years of age; 8 counts of indecent exposure; and 1 count each of 

endangering welfare of children and corruption of minors -- sexual nature.1 

 

1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(c), 3123(b), 4302(b)(1), 3125(b), 

3126(a)(7), 3127(a), 4304(a)(1), and 6301(a)(1)(ii), respectively. 
J. S08023/17

- 2 -

The trial court sentenced appellant to an aggregate term of incarceration of 

45 to 104 years. We affirm.

The record reflects that appellant’s convictions resulted from various 

sexual assaults that he inflicted upon his then 11-year-old daughter. The 

record further reveals that following imposition of sentence, appellant did 

not file post-sentence motions. On May 24, 2016, however, appellant filed a 

timely notice of appeal to this court. Appellant then timely complied with 

the trial court’s order to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). The trial court then filed a 

“1925(a) statement” wherein it incorporated its September 15, 2015 opinion 

and order2concerning certain evidentiary rulings that appellant now 

challenges.

Appellant raises the following issues:

I. Did the court commit error in admitting the 

testimony of the [sexual assault nurse 

examiner (“SANE nurse”)] when the hearsay 

testimony was unreliable; alternatively[,] when 

the testimony violated the confrontation clause 

of the constitution?

II. Did the court error [sic] in admitting the letter 

of [the victim] because it was 

unrelieable [sic][;] alternatively[,] when it 

violated the right to confrontation of 

[appellant]?

 

2 We note that although the trial court incorporated its “September 19, 

2015” order and opinion, the record reflects that the order and opinion which 

it incorporated in its “1925(a) statement” were docketed on September 15, 

2015.
J. S08023/17

- 3 -

Appellant’s brief at 2 (capitalization in original omitted).

In his first issue, appellant contends that the victim’s statements to 

Cheryl Wier, the SANE nurse who examined the victim (“Nurse Wier”), were 

testimonial in nature and, therefore, inadmissible under the Confrontation 

Clause of the Sixth Amendment of the United States Constitution. 

The Sixth Amendment’s Confrontation Clause 

provides that, “[i]n all criminal prosecutions, the 

accused shall enjoy the right . . . to be confronted 

with the witnesses against him.” We have held that 

this bedrock procedural guarantee applies to both 

federal and state prosecutions. Pointer v. Texas, 

380 U.S. 400, 406, 85 S. Ct. 1065, 13 L.Ed.2d 923 

(1965).

Crawford v. Washington, 541 U.S. 36, 42 (2004).

“[T]he Confrontation Clause prohibits the admission of testimonial 

hearsay against a criminal defendant, regardless of whether the statements 

are deemed reliable by the trial court, unless the declarant is unavailable to 

testify and the defendant had a previous opportunity to cross-examine the 

witness.” In re N.C., 105 A.3d 1199, 1215 (Pa. 2014).

[I]n analyzing whether a statement is testimonial, 

and, therefore, subject to the protections of the 

Confrontation Clause under Crawford [v. 

Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 

L.Ed.2d 177 (2004)], a court must determine 

whether the primary purpose of the interrogation 

was to establish or prove past events relevant to a 

later criminal prosecution. In making the 

determination as to the primary purpose of an 

interrogation, a court first should determine whether 

the interrogation occurred during the existence of an 

ongoing emergency, or what was perceived to be an 

ongoing emergency. Although the existence—actual 
J. S08023/17

- 4 -

or perceived—of an ongoing emergency is one of the 

most important factors, this factor is not dispositive 

because there may be other circumstances, outside 

of an ongoing emergency, where a statement is 

obtained for a purpose other than for later use in 

criminal proceedings. In determining the primary 

purpose of an interrogation, a court must also 

objectively evaluate the circumstances surrounding 

the interrogation, including the formality and 

location, and the statements and actions of both the 

interrogator and the declarant.

Commonwealth v. Allshouse, 36 A.3d 163, 175-176 (Pa. 2012), cert. 

denied, 133 S.Ct. 2336, 185 L.Ed.2d 1063 (2013). Although the United 

States Supreme Court has declined to adopt a categorical rule excluding 

statements to individuals who are not law-enforcement officers from the 

Sixth Amendment’s reach, it nevertheless recognizes that such statements 

are much less likely to be testimonial than statements made to lawenforcement officers. Ohio v. Clark, 135 S.Ct. 2173, 2181, 192 L.Ed.2d 

306, 315 (2015).

With respect to our standard and scope of review, “[w]hether 

[a]ppellant was denied [his] right to confront a witness under the 

[C]onfrontation [C]lause of the Sixth Amendment is a question of law for 

which our standard of review is de novo and our scope of review is 

plenary.” Commonwealth v. Yohe, 39 A.3d 381, 384 (Pa.Super. 2012), 

affirmed, 79 A.3d 520 (Pa. 2013), cert. denied, 134 S.Ct. 2662, 189 

L.Ed.2d 209 (2014) (citations omitted).
J. S08023/17

- 5 -

Preliminarily, we note that the record reflects that the parties 

stipulated that the victim was unavailable to testify. (Notes of testimony, 

8/5/15 at 6.) We further note that although the certified record before us is 

silent as to whether appellant had the previous opportunity to cross-examine 

the victim, appellant fails to advance any argument that he was denied such 

opportunity. Appellant’s complaint is that because the SANE exam was not 

conducted during the existence of an emergency and because its primary 

purpose was to gather evidence, the victim’s statements to Nurse Wier were 

testimonial in nature and, therefore, inadmissible under the Confrontation 

Clause.

The record reflects that on August 10, 2014, while the victim was in 

the kitchen with her mother, N.P., the victim “blurt[ed]” out that she had 

something to tell her mother and then stated that “[h]er daddy was touching 

her.” (Notes of testimony, 8/5/15 at 7, 10.) N.P. testified that she 

“instantly dropped,” “started to cry,” and “didn’t know what to think” when 

her daughter told her that. (Id. at 8.) When N.P. asked the victim where 

appellant was touching her, the child would not answer. (Id.) N.P. then 

telephoned her friend Tiffany Lasher, who was at work, and told Ms. Lasher 

what the victim had told her.3 (Id. at 8, 30.)

 

3 The record is unclear as to whether N.P. telephoned Ms. Lasher on the day 

that the victim made the statements to N.P. or whether she telephoned 

Ms. Lasher the following day.
J. S08023/17

- 6 -

As soon as Ms. Lasher finished working that day, she went to 

N.P.’s home, picked up the victim, and took her to her home in order to 

remove the child from a potentially sexually abusive environment. (Id. at 

30-31.) Ms. Lasher testified that she did not ask the victim any questions 

about what the victim had told her mother until August 13, 2014. (Id. at 

31.) On that day, Ms. Lasher and M.B., the child’s paternal aunt, asked the 

victim “what was going on.” (Id.) The victim responded that her “[d]addy 

was touching her everywhere.” (Id.) When the two women told the child 

that she needed to be more specific, the child pointed towards her vagina 

and anus and said that “he was touching her there.” (Id. at 32.) The victim 

also told the two women that appellant “place[d] his penis in her mouth.” 

(Id.) Ms. Lasher testified that during this conversation, the victim was 

crying and upset. (Id.) Ms. Lasher then telephoned the victim’s mother, 

N.P., to tell her what the victim had revealed. (Id. at 33.) Within 

15 minutes, N.P. arrived at Ms. Lasher’s home, and then N.P., Ms. Lasher, 

and M.B. took the victim to the emergency room at Bradford Regional 

Medical Center. (Id.)

Nurse Wier testified that when she met with the victim in the 

emergency room, she met with her alone, and no law enforcement was 

present. (Id. at 42.) Nurse Wier further testified that the purpose of her 

conversation with the victim was “[f]or a medical exam related to sexual 

assault.” (Id.) She explained that the questions that she posed to the 
J. S08023/17

- 7 -

victim were part of a “medical exam [] for the health and welfare of the 

patient.” (Id. at 44.) She acknowledged her understanding of the 

difference between a medical exam and a forensic exam, explaining that 

police initiate forensic examinations. (Id. at 44-45.) Nurse Wier further 

testified that the “whole purpose of the medical exam” is for the “evaluation 

and treatment of any patient.” (Id. at 45.) She also explained that a 

patient’s answers to the questions she poses guide the exam. (Id.) For 

example, Nurse Wier stated that she asks sexual assault victims whether 

and into what orifice an accused ejaculated because the answer to that 

question determines whether and where the victim would need to be 

checked for sexually transmitted diseases. (Id.) Nurse Wier further 

testified that prior to examining the victim in this case, she had not 

determined whether she would call police. (Id. at 46.)

With respect to her examination of the victim, Nurse Wier testified that 

when she asked the victim why the victim thought she was being seen, the 

child stated, “Because my dad is touching me.” (Id. at 43.) When 

Nurse Wier asked the victim where her father was touching her, the child 

“gestured toward her chest and genital area.” (Id.) When asked whether 

appellant touched her with his hands and/or with his penis, the child nodded 

affirmatively. (Id. at 44.) When asked if appellant touched her with his 

mouth, the child nodded “no.” (Id.) When asked if appellant put his penis 

in the child’s mouth, the victim nodded “yes.” (Id.) The victim also 
J. S08023/17

- 8 -

acknowledged that appellant had ejaculated in her mouth and penetrated 

her anus with his penis. (Id.)

Here, appellant claims that the victim’s SANE exam was not part of an 

ongoing emergency because “she did not visit the hospital for her 

examination until three days after disclosing the alleged abuse to her 

mother” and because “[t]here was no threat to the safety of [the victim] 

when she was at the hospital and the preliminary observation determined 

that [she] was not experiencing any trauma.” (Appellant’s brief at 13.) 

Appellant is mistaken.

The record reflects that the victim initially told her mother that 

appellant had been touching her. At that point, the victim would not reveal 

any further information about the sexual assaults. The victim’s disclosure 

that appellant had been touching her, however, resulted in the victim’s 

immediate removal from the family home in order to prevent future sexual 

assaults at the hands of appellant. It was not until three days after the 

victim’s removal from the family home that she revealed to Ms. Lasher and 

M.B. some of the details of the sexual assaults that appellant had inflicted 

upon her. The victim’s revelations of the details of these sexual assaults 

constituted a then-present emergency of suspected child sexual abuse and 

prompted the victim’s mother, Ms. Lasher, and the victim’s aunt to 

immediately take the victim to the emergency room for a sexual assault 

examination to determine, among other things, whether the victim sustained 
J. S08023/17

- 9 -

internal injury and/or contracted sexually transmitted diseases. Therefore, 

appellant’s claim that no emergency existed at the time of the victim’s 

SANE exam because three days had gone by since she revealed to her 

mother that “daddy was touching her” entirely lacks merit.

Appellant further contends that the victim’s statements to Nurse Wier 

were testimonial in nature because “the purpose of a SANE exam is to 

gather evidence.” (Appellant’s brief at 13.) Appellant advances no 

argument to support that contention; rather, appellant baldly asserts that 

Nurse Wier’s testimony that the purpose of the exam is for medical 

treatment was “pre-textual in nature.” (Id.) Our review of the record 

demonstrates that Nurse Wier clearly and unequivocally testified that the 

purpose of the SANE exam was to medically treat an 11-year-old child who 

was potentially a sexual-assault victim. Therefore, appellant’s claim that the 

statements that the victim made to Nurse Wier were inadmissible under the 

Confrontation Clause lacks merit.

Appellant next contends that the trial court erred in admitting 

Nurse Wier’s testimony concerning statements that the victim made to her 

during the SANE exam because “[the victim’s] statements to [Nurse Wier] 

were not reliable enough to be admissible under the [tender years hearsay 

exception].” (Appellant’s brief at 14.)

In reviewing the admissibility of evidence, “an appellate court may 

only reverse upon a showing that the trial court abused its discretion. An 
J. S08023/17

- 10 -

abuse of discretion is not a mere error in judgment but, rather, involves 

bias, ill will, partiality, prejudice, manifest unreasonableness, or 

misapplication of law.” Commonwealth v. Cox, 115 A.3d 333, 336 

(Pa.Super. 2015) (citations omitted).

The Pennsylvania Rules of Evidence define hearsay as “a statement 

that (1) the declarant does not make while testifying at the current trial or 

hearing; and (2) a party offers into evidence to prove the truth of the matter 

asserted in the statement.” Pa.R.E. 801(c). “Hearsay is not admissible 

except as provided by [the Pennsylvania Rules of Evidence], by other rules 

prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.

The Tender Years Act, 42 Pa.C.S.A § 5985.1, creates an exception to 

the hearsay rule for victims of childhood sexual abuse. See 

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 988 (Pa.Super. 2007). The 

tender years exception provides for the admissibility of certain statements 

that otherwise may be considered hearsay, as follows:

(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. [§ 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:

(1) the court finds, in an in camera 

hearing, that the evidence is 

relevant and that the time, content 

and circumstances of the 
J. S08023/17

- 11 -

statement provide sufficient indicia 

of reliability; and

(2) the child either:

(i) testifies at the 

proceeding; or

(ii) is unavailable as a 

witness.[4]

42 Pa.C.S.A. § 5985.1(a).

“The tender years exception allows for the admission of a child’s 

out-of-court statement because of the fragile nature of young victims of 

sexual abuse.” Commonwealth v. Lukowich, 875 A.2d 1169, 1172 

(Pa.Super. 2005), appeal denied, 885 A.2d 41 (Pa. 2005). A statement 

admitted under the tender years exception must possess sufficient indicia of 

reliability, as determined from the time, content, and circumstances of its 

making. Commonwealth v. O’Drain, 829 A.2d 316, 320 (Pa.Super. 2003) 

(citation omitted). The standard for determining whether the statements 

possess the required indicia of reliability was set forth in Idaho v. Wright, 

497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Obvious factors 

tending to demonstrate reliability include: (1) the spontaneity and 

consistent repetition of the statements; (2) the mental state of the 

declarant; (3) the use of terminology unexpected in a child of similar age; 

 

4 As previously noted, the record reflects that the parties stipulated that the 

victim was unavailable to testify. (Notes of testimony, 8/5/15 at 6.)
J. S08023/17

- 12 -

and (4) the lack of a motive to fabricate. Commonwealth v. Walter, 93 

A.3d 442, 451 (Pa. 2014).

Preliminarily, we note that because the Crawford Court rejected the 

“indicia of reliability” standard where a witness is deemed unavailable, we 

are first required to determine whether the statements are testimonial or 

non-testimonial in nature before determining their reliability under the 

tender years exception. See N.C., 105 A.3d at 1208-1209. For the reasons 

set forth above, we have found that the statements were not testimonial in 

nature. Therefore, we may proceed to the reliability determination.

Appellant claims that the statements were unreliable and, therefore, 

inadmissible because “[the victim] was very reluctant to speak about the 

alleged abuse[, and she] would avoid eye contact and would mostly respond 

with nonverbal gestures, such as pointing and nodding[.]” (Appellant’s brief 

at 14.) Appellant further contends that the statements lacked reliability 

because the victim “had been subject to frequent questioning by [her aunt, 

M.B.,] and only disclosed details of the ‘touching’ when pressed.” (Id.) The 

record belies appellant’s claims. 

The record demonstrates that the victim spontaneously disclosed the 

sexual abuse inflicted upon her by appellant when she “blurted” out to her 

mother that she had something to tell her mother, immediately followed by 

the revelation that appellant had been touching her. Additionally, the 

statements that the victim made to Ms. Lasher and her aunt, M.B., were 
J. S08023/17

- 13 -

consistent with what she had told her mother. Further, the statements that 

the victim made to Nurse Wier were consistent with the statements that she 

had made to Ms. Lasher and M.B. As for the victim’s mental state, 

Nurse Wier described the victim as “very anxious,” “quiet,” “withdrawn,” and 

“nervous.” (Notes of testimony, 8/5/15 at 44.) That, coupled with the 

victim’s reluctance to speak about the abuse, her avoidance of eye contact, 

and her use of nonverbal gestures demonstrates the 11-year-old victim’s 

fragility, not her unreliability. Moreover, nothing in the record reveals that 

the victim used terminology unexpected of a child her age. Finally, nothing 

in the record supports the conclusion that the victim had a motive to lie. In 

fact, the record demonstrates that at the time of the tender years hearing, 

the victim “still love[d] her dad.” (Id. at 10.) Therefore, because the record 

demonstrates that the statements the victim made to Nurse Wier possessed 

sufficient indicia of reliability, the trial court properly exercised its discretion 

in admitting those statements into evidence.

In his second issue on appeal, appellant complains that the trial court 

erred in admitting into evidence a letter that the victim wrote to her aunt, 

M.B., in June 2015 because it was testimonial in nature and, therefore, 

protected by the Confrontation Clause or, alternatively, unreliable and, 

therefore, inadmissible under the tender years exception. Once again, 

appellant is mistaken.
J. S08023/17

- 14 -

The record reflects that the victim wrote the letter to her aunt, M.B., 

on June 11, 2015. (Notes of testimony, 12/17/15 at 6, and Commonwealth 

Exhibit 1.) The record further reveals that between the time that the victim 

revealed the sexual abuse to her mother and others in August 2014 and the 

time that she wrote this letter to her aunt in June 2015, the victim was 

withdrawn and refused to speak about the sexual abuse with anyone, 

including her counselor at Children & Youth Services (“CYS”) and her aunt, 

M.B., with whom she was then living. M.B. explained:

. . . I tried to talk to her, like, every other day or so, 

couple days a week, whatever trying to get her to 

talk to the counselor, you know, CYS or whatever. 

She wouldn’t even talk to me anymore. So, on that 

day, I was like, you know, I was trying to get her to 

talk to me again, you know, I was, like, I just want 

to know the truth. You got to talk to me. You got to 

talk to somebody, anybody. Write it down, 

whatever. And at that time, my husband had called 

and I, you know, he asked me what I was doing, and 

I had said I was trying to talk to [the victim], trying 

to get her to talk to me again, and she won’t talk to

me, she won’t talk to CYS, she won’t talk to 

anybody. She -- I just -- I don’t know what else to 

do. I said she won’t write it down or anything like 

that, so at that point, she’s like, “Oh, I’ll write it 

down.” So, I went and got her a notepad and a pen 

and -- and I continued to be on my -- on my phone 

with my husband at that time.

Notes of testimony, 1/17/15 at 6-7.

Additionally, it is relevant to the Confrontation Clause determination 

that the victim wrote the letter for and to her aunt and not for and to law 

enforcement or the Commonwealth. See Clark, 135 S.Ct. at 2182 
J. S08023/17

- 15 -

(reiterating that “[c]ourts must evaluate challenged statements in context, 

and part of that context is the questioner’s identity” (citation omitted)). 

“Statements made to someone who is not principally charged with 

uncovering and prosecuting criminal behavior are significantly less likely to 

be testimonial than statements given to law enforcement officers.” Id.

(citation omitted). Here, no doubt exists that the relationship between a 

niece and her aunt is far different than the relationship between a citizen 

and a law enforcement officer. Additionally, even though M.B. testified that 

she knew that the letter would ultimately be given to police (notes of 

testimony, 12/17/15 at 13), the record clearly demonstrates that M.B.’s first 

objective in having the victim write the letter was to get the victim to open 

up about the sexual abuse that appellant had inflicted upon her. Notably, 

M.B. testified that she herself was the victim of childhood sexual abuse and, 

therefore, she knows the importance of “get[ting] it out and open.” (Id. at 

17.) Because the record clearly demonstrates that the primary purpose of 

the writing was to get the victim to open up about the sexual abuse that she 

had suffered and not to create a record for trial, the letter falls outside the 

scope of Confrontation Clause protection.

Finally, appellant contends that the letter lacked reliability and was, 

therefore, inadmissible under the tender years exception because “[t]he 

letter used language that [the victim] had not used before[,] [t]he letter 

contained much more explicit descriptions of body parts and actions than 
J. S08023/17

- 16 -

any of her previous statements,” and “the evidence clearly suggests that 

[M.B.] played a major influence in the drafting of the letter.” (Appellant’s 

brief at 15-16.) Having made the determination that the letter was not 

testimonial in nature, we may now address appellant’s unreliability claim.

The record demonstrates that the victim voluntarily wrote the letter. 

The record further shows that the victim had severe difficulty communicating 

in the spoken word. Our review of the words the victim used in the letter to 

describe male genitalia and certain sex acts are consistent with the words a 

12-year-old girl would choose. Additionally, although the description of the 

sexual assaults set forth in the letter is more detailed than what Nurse Wier 

testified to, what the victim wrote in the letter is consistent with the 

statements she made to Nurse Wier, Ms. Lasher, and M.B. concerning the 

oral and anal sex that appellant subjected her to. The record supports the 

trial court’s conclusion that “[there is] nothing about the circumstances that 

would make the reliability questionable.” (Notes of testimony, 12/17/15 at 

31.) Accordingly, the trial court properly exercised its discretion in admitting 

the letter into evidence under the tender years exception.

Judgment of sentence affirmed.
J. S08023/17

- 17 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2017