J-S64039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.C.H., A 

MINOR

IN THE SUPERIOR COURT

OF

PENNSYLVANIA

APPEAL OF: B.C.H.

No. 211 MDA 2017

Appeal from the Order Entered December 28, 2016

In the Court of Common Pleas of Lancaster County

Juvenile Division at No(s): CP-36-JV-0000525-2016

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

CONCURRING MEMORANDUM BY PANELLA, J. FILED NOVEMBER 20, 2017

My esteemed colleagues in the Majority contend that the juvenile court 

erred by refusing to allow B.C.H. to cross-examine one of the victims, B.F., on 

her romantic interest in another boy at the time of the criminal incident. I 

disagree with that contention. However, because the Majority nevertheless 

affirms the order entered in the Juvenile Division of the Lancaster County 

Court of Common Pleas, I respectfully concur.

“The scope of cross-examination is a matter within the discretion of the 

trial court and will not be reversed absent an abuse of that discretion.” 

Commonwealth v. Rashid, 160 A.3d 838, 845 (Pa. Super. 2017) (citation 

omitted). “Discretion is abused when the course pursued represents not 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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merely an error of judgment, but where the judgment is manifestly 

unreasonable or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill will.” Interest of J.B., 

147 A.3d 1204, 1218 (Pa. Super. 2016) (citation omitted). 

The right to cross-examine witnesses, though fundamental, is not 

absolute. See Commonwealth v. Rosser, 135 A.3d 1077, 1088 (Pa. Super. 

2016) (en banc). “[T]he Sixth Amendment does not entitle the defendant to 

cross-examine a Commonwealth witness on a subject for which the defendant 

cannot provide a factual foundation.” Id. For instance, our Supreme Court has 

held that a trial court acted within its discretion in barring cross-examination 

of a Commonwealth witness about alleged threats made to that witness, when 

the defense attorney was unable to provide any factual basis for those 

questions. See Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011). In 

short, a defendant is not permitted to engage in “fishing expeditions” under 

the guise of cross-examination. Rosser, 135 A.3d at 1089. 

In his brief, Appellant argues that if B.F. were interested in A.J., another 

boy, B.F. would not have wanted A.J. to hear about her consensual sexual 

contact with Appellant. Thus, Appellant claims, B.F. had a clear motive to lie 

in her testimony by stating that Appellant had sexually assaulted her. 

Appellant assumes the initial premise—that B.F. was romantically interested 

in A.J.— to advance his theory as to why B.F. might be an untruthful witness.

However, Appellant fails to provide even a shred of evidence in support of 
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either assertion. Instead, Appellant maintains he should have been permitted 

to build support for these unsubstantiated suppositions during his questioning.

Appellant’s attempts to pursue this line of questioning rely entirely on 

speculation. Even Appellant’s appellate brief is couched in terms of 

uncertainty—he indicates he wished to elicit information on B.F.’s “potential” 

interest in A.J. as possible motivation for B.F. to give untruthful testimony 

about whether she consented to Appellant’s conduct. See Appellant’s Brief, at 

11. Appellant himself does not contend that B.F. was romantically interested 

in A.J., only that he wished to explore this angle. 

However, without anything further, Appellant’s allegations undoubtedly 

constitute an impermissible fishing expedition. See Rosser, 135 A.3d at 1089. 

Thus, I believe the court acted well within its discretion in precluding Appellant 

from pursuing this baseless conjecture. See Rashid, 160 A.3d at 845. 

Because the juvenile court did not err, there is no need for the majority 

to apply the harmless error test. I must therefore concur.