J-S29013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES BATTISTA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 593 EDA 2021

Appeal from the Judgment of Sentence Entered January 20, 2021

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-0001246-2019

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 21, 2022

James Battista appeals from the judgment of sentence entered in the 

Chester County Court of Common Pleas on January 20, 2021, following his 

conviction for multiple counts of endangering the welfare of children 

(“EWOC”). Appellant’s convictions stemmed from his child abuse of three 

children (respectively “Victim 1”, “Victim 2”, and “Victim 3”, in the order in 

which each disclosed their allegations) while they attended a day care center 

run by Appellant and his wife between 2006 and 2009. On appeal, Appellant 

challenges the denial of his pretrial motion to suppress and motion to dismiss. 

After careful review, we affirm. 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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The trial court accurately summarized the relevant underlying facts as 

follows: 

The investigation into the abuse began on August 25, 2009 

when Victim 1, then four (4) years old, disclosed and 

demonstrated to her mother how the Appellant puts his face in 

her private parts at naptime. Victim 1 also reported that the 

Appellant made her "hump" her blanket. Following that disclosure, 

Victim 1 's mother took her to Nemours/A.I. DuPont Hospital for 

Children and investigators forensically interviewed Victim 1 over 

the course of multiple days about her report. Members of the 

Pennsylvania State Police also obtained a search warrant and 

processed the interior of the daycare, taking cots and blankets 

from the scene.

Several months later, the grandmother of Victim 2 

contacted Trooper James Ciliberto, the state police investigator 

handling the investigation into the Appellant. She reported that 

Victim 2 had disclosed and then demonstrated for her that the 

Appellant had touched her private part under her clothing. At the 

time of her disclosure, Victim 2 was also only four (4) years old.

Over the course of several months in 2009 and 2010, 

Trooper Ciliberto interviewed the Appellant and his wife multiple 

times. Both the Appellant and his wife denied ever engaging in 

sexual contact involving any of the children or their items. 

Appellant and his wife also stated that it had been months since 

they themselves had any sexual contact whatsoever within the 

daycare area. The Appellant's wife repeatedly assured detectives 

that they would not find any biological material or seminal fluid on

any of the children's belongings that had been removed from the 

home during the search warrant. However, a hand-knit baby 

blanket, taken directly from the top of one of the nap cots inside 

the daycare, contained a significant stain of the appellant's 

seminal material. At the conclusion of the initial investigation, the 

Commonwealth decided not to charge the Appellant due to the 

young ages of the children and the risk that they would be too 

intimidated to testify in a courtroom.

In 2017, the father of Victim 3, by then a seventeen (17) 

year old female, contacted the State Police to report that his 

daughter, also a former student at the daycare, had just disclosed 

that the Appellant repeatedly sexually abused her. Trooper 
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Stefano Gallina arranged for Victim 3 to be forensically 

interviewed and Trooper Ciliberto, by then a county detective 

specializing in crimes of child abuse, conducted the interview and 

assisted Trooper Gallina in reopening the earlier investigation. 

Following the disclosure by Victim 3, investigators contacted the 

parents of Victim 1 and Victim 2 and asked permission to speak 

to the victims again in a forensic interview setting. Both Victim 1 

and Victim 2 were then interviewed and again provided details of 

sexual abuse they suffered at the hands of the Appellant.

On March 12, 2019, Trooper Gallina obtained an arrest 

warrant charging the Appellant with the sexual abuse of each of 

the three named victims and the Appellant was taken into custody 

the following day. 

Trial Court Opinion, 4/25/2021, at 2-3. 

Appellant filed pretrial motions, including a motion to dismiss as well as 

a motion to suppress. Appellant’s motion to dismiss was based on assertions 

that the Commonwealth failed to follow proper forensic interview protocols 

that contaminated and tainted the victims, and the pre-arrest delay violated 

his due process rights. In arguing his due process rights had been violated, 

Appellant argued the pre-arrest delay prejudiced him, and that the pre-arrest 

delay was a tactical decision on the part of the Commonwealth. The motion to 

suppress sought to suppress evidence seized from the day care center, on the 

basis that the search warrant was invalid and not based on probable cause. 

After a hearing, and after consideration of both motions and applicable law, 

the court entered orders denying both motions. 

On October 2, 2020, a jury found Appellant guilty of three counts of 

EWOC. The court sentenced Appellant to an aggregate term of three to six 
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years’ imprisonment. After having his appellate rights reinstated nunc pro 

tunc, this timely appeal followed. 

In his first issue, Appellant claims the trial court erred in denying his 

motion to suppress evidence seized pursuant to a search warrant. 

Our standard of review in addressing a challenge to a trial court’s 

denial of a suppression motion is whether the factual findings are 

supported by the record and whether the legal conclusions drawn 

from those facts are correct. When reviewing the ruling of the 

suppression court, we must consider only the evidence of the 

prosecution and so much of the evidence of the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the record supports the findings of the 

suppression court, we are bound by those facts and may reverse 

only if the legal conclusions drawn therefrom are in error. 

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations 

omitted). Furthermore, questions of credibility and the weight to be accorded 

to witness testimony are issues within the sound discretion of the trial court. 

See Commonwealth v. Fitzpatrick, 666 A.2d 323, 325 (Pa. Super. 1995). 

Appellant asserts the trial court erred in denying his motion to suppress 

because the search warrant application did not establish probable cause. 

Appellant first claims the police omitted material information when they 

submitted a probable cause affidavit in support of their application, and that 

if the omitted information had been included, the affidavit would not have 

provided probable cause. Additionally, Appellant claims the affidavit of 

probable cause was insufficient because it was based on double hearsay. 

In this jurisdiction, the question of whether probable cause exists 

for the issuance of a search warrant must be answered according 

to the “totality of the circumstances” test articulated in 
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Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), and 

its Pennsylvania progeny, which incorporates the reasoning of the 

United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 

103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The task of the magistrate 

acting as the issuing authority is to make a “practical, common 

sense assessment” of whether, “given all the circumstances set 

forth in the affidavit,” a “fair probability” exists that contraband or 

evidence of a crime will be found “in a particular place.” A search 

warrant is defective if the issuing authority has not been supplied 

with the necessary information. The chronology established by the 

affidavit of probable cause must be evaluated according to a 

“common sense” determination. 

Commonwealth v. Huntington, 924 A.2d 1252, 1255 (Pa. Super. 2007) 

(some citations omitted).

Here, Trooper Ciliberto provided the following facts in the affidavit of 

probable cause: 

1. On Thursday, 08/27/09, Sgt. William DONAHUE of the 

Pennsylvania State Police - Troop J - Avondale Criminal 

Investigation Unit presented me with a CY-104 - Report of 

Suspected Child Abuse to Law Enforcement Official, which he 

received from Detective Sgt. Jeffrey GORDON of the Chester 

County Detectives. That CY-104 provided the following 

information:

a. On Wednesday, 08/26/09, CHILDLINE was contacted in 

reference to the child here-in referred to as [Victim 1]

B. [Victim 1] is a W/N/F, 4 YOA DOB:09/07/04.

c. [Victim 1] was brought to the A.I. Dupont Hospital by her 

mother, on Wednesday, 08/26/09. It is noted that [Victim 

1]'s mother is a W/N/F, 44 YOA, DOB: 09/20/65.

d. [Victim 1]’s mother brought [Victim 1] to the AI Dupont 

Hospital because the mother suspected that [Victim 1] had 

been the victim of a sexual assault perpetrated by [Victim 

1]'s day care provider: James A. BATTISTA, W/N/M, 60 YOA, 

DOB: 12/12/48.
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e. The mother reported that [Victim 1]'s day care is the Little 

Friends Day Care located at 2761 Newark Road, West Grove, 

PA 19390.

g. The mother reported to AI Dupont personnel that on 

Tuesday, 08/25/09, [Victim 1] told her that when she 

([Victim 1]) attends day care James A. BATTISTA ''comes in 

and licks her bottom and sometimes puts his bottom in her 

face too.”

2. On Thursday, 08/27/09, at approximately 1115 hrs, I contacted 

[Victim 1]’s mother via telephone. During the ensuing 

conversation, the mother related the following:

a. [Victim 1] has attended the Little Friends Day Care for 

the past three years.

b. On Tuesday evening, 08/25/09, the mother had bathed 

[Victim 1] following that bath, [Victim 1] told her mother 

that during nap time at the Little friends day care, James A. 

BATTISTA "puts his tongue" in her ([Victim 1]) "butt." 

[Victim 1] then told her mother that James A. BATTISTA 

"puts his butt" in her ([Victim 1]) face.

c. Following [Victim 1]'s revelation, [Victim 1]'s mother 

asked [Victim 1] to show her what she meant. At that time, 

[Victim 1] put a blanket on her mother's head and 

attempted to spread apart he[r] mother's legs.

d. [Victim 1]'s mother asked [Victim 1] to exhibit what 

James A. BATTISTA did to her with his tongue. At that time 

[Victim 1] licked her mother's arm.

e. [Victim 1]'s mother also related to me that after [Victim 

1]'s disclosure, she took [Victim 1] to the A.I. Dupont 

Hospital for a sexual assault examination on Wednesday, 

08/26/09. Following the examination, [Victim 1] told her 

mother that James A. BATTISTA, "put[]s white stuff on my 

butt." When she asked [Victim 1] where that white stuff 

came from, [Victim 1] told her mother that BATTlSTA 

produced the “white stuff'' from his "butt."

3. On Monday, 08/31/09, at approximately 1500 hrs, I again 

contacted [Victim 1]'s mother via telephone and asked her to 
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describe[] the interior of the Little Friends Day Care. [Victim 1]'s 

mother advised:

a. That the day care makes up the entirety of the bottom 

floor of the bi-level.

b. That the day care is generally entered through the garage 

side (north side) of the residence.

c. That travelling through[] the day care, north to south, 

one encounters a room consisting of a table, chairs, and 

television. One then enters a play room. There is a hall that 

contains a changing area. The south side of the day care 

consists of two or three small rooms where the children nap, 

and a bathroom.

4. Subsequent to my initiation of this investigation, Trooper James 

GRUDZINSKI conducted a background check of James A. 

BATTISTA. That background showed that BATTISTA is married to 

Eleanor F. BATTISTA, W/N/F, 53 YOA, DOB: 10/13/55. Both 

BATTISTAS operate the Little friends Day Care Center. 

5. I am requesting the courts permission to allow Pennsylvania 

State Police Troopers to search for and seize from the Little 

Friends Day Care semen and pubic hairs. I believe probable cause 

exists that these items may be found due to the following reasons:

a. [Victim 1] told her mother that BATTISTA produced 

"white stuff' from his “butt” and put it on her “butt.” Based 

on my training and experience “white stuff'' is a child's 

description of sperm/semen.

b. Based on my training and experience, [Victim 1]’s 

statements indicated that BATTISTA ejaculated. If he 

ejaculated, probable cause exists to believe that the 

ejaculate landed in numerous locations and that if it had not 

been cleaned up, that semen/sperm can be found. If found, 

DNA can be extracted from that Semen/Sperm.

c. Based on my training and experience, [Victim 1] is 

providing a child’s description of sexual contact between she 

and James A. BATTISTA and that BATTISTA'S genitalia is 

exposed during that sexual contact (exposure of genitalia 

can be surmised because [Victim 1] described seeing 
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BATTISTA ejaculate). Adult male’s generally have pubic hair 

and during sexual contact pubic hair is loosened and falls on 

and around the area where the sexual contact is occurring.

Motion to Suppress, 9/27/2019, at Exhibit A. 

Appellant contends the affidavit of probable cause is insufficient to 

support a finding of probable cause because it is based on double hearsay. 

This claim is without merit. 

“It is well settled that an affidavit may be based on hearsay and need 

not reflect direct personal observation of the affiant.” Commonwealth v. 

Klimkowicz, 479 A.2d 1086, 1088 (Pa. Super. 1984) (citations omitted). 

Further, “an affidavit which contains hearsay upon hearsay need not be 

categorically rejected. Rather, ‘double hearsay’ must be evaluated in 

conjunction with the other information in the affidavit to determine whether 

the information is reliable.” Commonwealth v. Klinedinst, 589 A.2d 1119, 

1123 (Pa. Super. 1991). “[P]robable cause is based on a finding of the 

probability, not a prima facie showing of criminal activity, and that deference 

is to be accorded a magistrate’s finding of probable cause.” Commonwealth 

v. Baker, 615 A.2d 23, 25 (Pa. 1992). 

Importantly, while the tender years exception to the hearsay rule, 

codified at 42 Pa.C.S.A. § 5985.1, does not explicitly reference search warrant 

applications, it does allow admission of hearsay statements regarding sexual 

abuse from children under the age of 12 at trial, so long as the circumstances 

indicate the statement is reliable. See Commonwealth v. Charlton, 902 
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A.2d 554, 559-60 (Pa. Super. 2006). Finally, the uncorroborated testimony of 

Victim 1, if believed by the trier of fact, was sufficient not only to establish 

probable cause that a crime had been committed, but to convict Appellant. 

See id. at 562.

Here, the suppression court found that the statements made by Victim 

1 to her mother provided a sufficient basis for a reasonable investigative 

officer to conclude that Appellant had probably committed a crime, and that 

evidence of the crime might be found in the day care. The suppression court 

found that the circumstances surrounding the statements offered support for 

the statements’ reliability. These circumstances include the nature of the 

statement itself, the age of Victim 1, and the fact that the statement was 

made to her mother. Notably, Victim 1’s statements included specific 

allegations regarding Appellant’s conduct that not only indicated he had 

committed a crime, but also that evidence of that crime might be found in the 

premises to be searched. Further, the reliability of Victim 1’s statements were 

bolstered by Trooper Ciliberto’s opinion that, based on his training and 

experience, the language used by Victim 1 was commonly used by victims of 

child abuse, specifically language used to describe sperm/semen and 

ejaculation. Accordingly, we can find no error or abuse of discretion in the 

magistrate finding these circumstances provided reassurance that Victim 1’s 

statements were reliable.
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Of course, that is only the first step, as Victim 1 did not provide these 

statements directly to Trooper Ciliberto. Instead, it was Victim 1’s mother who 

relayed these statements to the Trooper. As such, the magistrate was required 

to assess whether the mother's statements provide sufficient evidence of 

reliability. 

Appellant does not make any specific challenges to the reliability of the 

mother’s statement to the Trooper. And we can discern no reason why the 

Trooper, or the magistrate, would have reason to believe the mother would 

fabricate or misstate what Victim 1 had told her. Given that the mother was 

reporting to the authorities facts that would likely lead to a criminal 

investigation, the magistrate was entitled to determine that this hearsay 

statement was supported by sufficient evidence of reliability. Even though the 

affidavit utilized double hearsay, the totality of the circumstances provided 

sufficient evidence of reliability to allow the magistrate to rely on the hearsay 

statements in finding probable cause. 

Appellant also argues probable cause was lacking because Trooper 

Cilberto omitted the fact that Victim 1 had been interviewed prior to the 

application, and had denied any wrongdoing by Appellant. Appellant claims 

that if this fact had been in the affidavit there would not have been sufficient 

probable cause for issuance of the search warrant.

[W]here omissions are the basis for a challenge to an affidavit of 

probable cause in an arrest warrant, we apply the following test: 

(1) whether the officer withheld a highly relevant fact within his 

knowledge, where “any reasonable person would have known that 
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this was the kind of thing the judge would wish to know”; and (2) 

whether the affidavit would have provided probable cause if it had 

contained a disclosure of the omitted information.

Commonwealth v. Taylor, 850 A.2d 684, 689 (Pa. Super. 2004) (citations 

omitted). 

Here, the omitted fact was that four-year-old Victim 1 was hesitant in 

accusing Appellant in her first interview with authorities. She denied that 

anyone had ever touched her genitals or her buttocks. However, she also 

denied that there was any place on her body that other people shouldn’t touch. 

And even more relevantly, she described Appellant as a bad person, while 

describing Appellant’s wife as a good person.

While the omitted information was information a judge would likely want 

to know, we conclude the affidavit would have nevertheless provided probable 

cause even if it had contained a disclosure of this omitted information. We 

acknowledge that Victim 1 clearly denied Appellant had done something wrong 

to her. Nonetheless, she identified Appellant as a bad person, and indicated 

some confusion as to whether it was appropriate for another person to touch 

her genitals or buttocks. Taken in context, Victim 1’s statements in her first 

interview are indicative of a young, nervous child, who is uncomfortable 

speaking to strangers about a traumatic event. Far from completely nullifying 

her statements to her mother, this interview reveals that Victim 1 saw 

Appellant as a bad person, but she was unwilling or unable to elaborate as to 

why she felt that way. It certainly is not unreasonable to look at the totality 
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of the circumstances, including this interview, and conclude that there was a 

probability of finding evidence of a crime at the daycare premises. Accordingly, 

the suppression court did not abuse its discretion in denying Appellant's 

motion to suppress.

Under all these circumstances, we conclude the search warrant was 

properly issued on probable cause that evidence of a crime would be 

discovered at the premises as detailed in the affidavit of Trooper Ciliberto. 

In his second issue, Appellant claims the trial court erred in denying his 

motion to dismiss. While Appellant’s argument in this regard is long, and often 

repetitive, his main argument is that the delay between the beginning of the 

investigation and his arrest violated his due process rights and his right to a 

fair trial. He asserts the Commonwealth tainted the victims’ responses when 

it failed to follow proper forensic interview protocols. He contends that the 

pre-arrest delay prejudiced him by preventing him from litigating the issue of 

this taint. 

To address Appellant’s due process claim, we must determine whether 

Appellant suffered actual prejudice from the pre-arrest delay. See 

Commonwealth v. Scher, 803 A.2d 1204, 1222 (Pa. 2002). 

The court must then examine all of the circumstances to 

determine the validity of the Commonwealth's reasons for the 

delay. Only in situations where the evidence shows that the delay 

was the product of intentional, bad faith, or reckless conduct by 

the prosecution, however, will we find a violation of due process. 

Negligence in the conduct of a criminal investigation, without 

more, will not be sufficient to prevail on a due process claim based 

on pre-arrest delay.
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Commonwealth v. Jette, 818 A.2d 533, 536 (Pa. Super. 2003) (citation 

omitted). 

Our Supreme Court has found a pre-arrest delay of eleven years 

constituted actual prejudice. See Commonwealth v. Snyder, 713 A.2d 596, 

605-606 (Pa. 1998). However, the Court recognized that the Commonwealth 

may have valid reasons to justify even a lengthy delay, such as “when an 

investigation yields new evidence after many years of inactivity,” and 

remanded for evaluation of those reasons by the trial court. Id. at 605. 

Here, the initial investigation occurred in 2009. The case was kept open 

until 2013, when it was finally closed after no new evidence came forward. In 

2017, a third victim came forward with allegations of abuse committed by 

Appellant during the same time frame as the original two victims. The case 

was then reopened, and Appellant was arrested in 2019. 

Our Supreme Court has previously explained:

In order for a defendant to show actual prejudice, he or she must 

show that he or she was meaningfully impaired in his or her ability 

to defend against the state's charges to such an extent that the 

disposition of the criminal proceedings was likely affected. This 

kind of prejudice is commonly demonstrated by the loss of 

documentary evidence or the unavailability of an essential 

witness. It is not sufficient for a defendant to make speculative or 

conclusory claims of possible prejudice as a result of the passage 

of time.

Scher, 803 A.2d at 1222 (citations omitted). 

Appellant claims he was prejudiced because he lost the ability to 

challenge the victims’ competency by way of a taint or a competency hearing 
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based on the age of the victims. He asserts the Commonwealth waited over 

eight years to charge him so that each victim would be over fourteen years of 

age at the time they testified.

Taint concerns “the implantation of false memories or distortion of 

actual memories through improper and suggestive interview techniques.” 

Commonwealth v. Delbridge, 855 A.2d 27, 30 (Pa. 2003). An allegation 

that a witness’s memory has been tainted is a challenge to the witness’s 

competency to testify. See id. at 40. Allegations of taint are therefore properly 

addressed in a competency hearing, where the court is tasked with 

determining if the witness has an independent memory of an actual event. 

See id. As it constitutes a challenge to competency, taint must be assessed 

not only as of the time of trial, but also “at any other relevant time.” 

Commonwealth v. D.J.A., 800 A.2d 965, 971 (Pa. Super. 2002) (citing 

Pa.R.E. 601(b)(1)).

Despite this language in D.J.A. and Rule 601, this Court has repeatedly 

held that taint is totally irrelevant once a witness has attained the age of 14. 

See Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011); see also 

Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006). Instead, 

any such challenge becomes a challenge to credibility, not competency. See 

id.
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However, we need not address whether Appellant was prejudiced, as 

even if we assume he was prejudiced, we cannot find fault with the trial court’s 

conclusion that the Commonwealth had valid reasons for the pre-arrest delay:

[T]he Commonwealth explained that at the conclusion of the initial 

investigation, they decided not to charge the Appellant due to the 

young ages of the children and the risk that they would be too 

intimidated to testify in a courtroom. This court determined that 

the Commonwealth's reasons for the delay were valid.... Above all, 

we found the Appellant’s assertions in regards to the 

Commonwealth’s strategy and tactics merely speculative.

Trial Court Opinion, 4/25/2021, at 8-9.

The trial court’s findings and credibility assessments are supported by 

the record. Further, we can find no error in its reasoning. Appellant offered no 

evidence beyond his mere speculation that the Commonwealth had 

intentionally delayed his arrest in an effort to prejudice him. The trial court 

was entitled to weigh this against the Commonwealth’s proffered excuse for 

the delay and find the Commonwealth’s proffer more credible. As a result, 

Appellant has failed to convince us that the trial court erred in denying his 

motion to dismiss. 

As we find the trial court did not err in denying both of Appellant’s pretrial motions, we affirm the judgment of sentence. 

Judgment of sentence affirmed. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/2022