J-A22030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.J.E., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

APPEAL OF: N.J.E., A MINOR

No. 273 MDA 2016

Appeal from the Dispositional Order February 8, 2016

In the Court of Common Pleas of Centre County

Juvenile Division at No(s): CP-14-JV-0000135-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 18, 2016

Appellant, N.J.E., appeals from the dispositional order entered after 

he was found delinquent of indecent assault of a minor. N.J.E. contends that 

the juvenile court erred in admitting evidence of a prior delinquency 

adjudication and in denying his motion asserting that the minor victim’s 

testimony was tainted. After careful review, we affirm.

While N.J.E. was under supervision pursuant to a consent decree 

entered on a charge that he had exposed himself to his minor brother, N.J.E. 

was charged with touching his other minor brother’s genitals. At trial, the 

Commonwealth presented the testimony of the victim and evidence of the 

circumstances supporting the consent decree. The juvenile court adjudicated 

N.J.E. delinquent, and subsequently entered a dispositional order placing 
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N.J.E. in a residential sex offender treatment program. This timely appeal 

followed.

On appeal, N.J.E. first argues that the juvenile court erred in 

permitting the Commonwealth to present evidence of the circumstances 

supporting the consent decree. We will disturb a juvenile court’s disposition 

only upon a showing of a manifest abuse of discretion. See In re R.D., 44 

A.3d 657, 664 (Pa. Super. 2012). “The [a]dmission of evidence is within the 

sound discretion of the trial court and will be reversed only upon a showing 

that the trial court clearly abused its discretion.” In re F.P., 878 A.2d 91, 

93 (Pa. Super. 2005) (citation omitted).

N.J.E. contends that the juvenile court erred in admitting evidence that 

he had previously exposed himself to his minor brother. The juvenile court 

concluded that this evidence was admissible under the “common plan or 

scheme” exception. It is impermissible to present evidence at trial of a 

defendant’s prior bad acts or crimes to establish the defendant’s criminal 

character or proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 

1034 (Pa. Super. 2008). Such evidence, however, may be admissible “where 

it is relevant for some other legitimate purpose and not utilized solely to 

blacken the defendant’s character.” Commonwealth v. Russell, 938 A.2d 

1082, 1092 (Pa. Super. 2007) (citation omitted). The Rules of Evidence

specifically provide that “[e]vidence of other crimes, wrongs, or acts may be 

admitted for other purposes, such as proof of motive, opportunity, intent, 
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preparation, plan, knowledge, identity or absence of mistake or accident.” 

Pa.R.E. 404(b)(2).

In determining whether the common plan exception applies, a trial 

court must assess the distinctiveness and similarity of the circumstances of 

the two incidents to determine whether they constitute a “signature.” 

Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa.Super. 2015) 

(citations omitted). Next, the court must assess the lapse of time between 

the incidents, as a prior bad act that is remote in time may not be probative 

of a common plan. See id. Finally, the court must determine that the 

probative value of the prior bad act evidence is not outweighed by the 

prejudicial impact on the trier of fact. See id.

Here, the current charges and the prior bad act both involved 

allegations that N.J.E. had indecently assaulted his younger brothers in the 

family’s home. The prior bad act was separated from the current allegations 

by less than a year. Finally, the juvenile court, as trier of fact, was able to 

consider the evidence only for its proper purpose, and not be swayed to 

decide the case on improper grounds. See, e.g., Commonwealth v. 

Harvey, 526 A.2d 330, 333 (Pa. 1987) (a trial judge is equipped, through 

training and experience, to assess the competency and relevance of 

proffered evidence and to disregard that which is prejudicial); 

Commonwealth v. Brown, 486 A.2d 441, 443–44 (Pa. Super. 1984) (a 

trial judge sitting as fact finder is presumed to ignore prejudicial evidence).
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We thus conclude that the juvenile court did not abuse its discretion in 

admitting evidence of the prior bad acts.

Next, N.J.E. argues that the juvenile court erred in allowing the victim 

to testify in this case. In particular, N.J.E. contends that the victim was 

unduly influenced by leading and suggestive questioning by agents of the 

Commonwealth. N.J.E.’s claim is an argument against the victim’s 

competency to testify. “Our standard of review recognizes that a child’s 

competency to testify is a threshold legal issue that a trial court must 

decide, and an appellate court will not disturb its determination absent an 

abuse of discretion. Our scope of review is plenary.” Commonwealth v. 

Pena, 31 A.3d 704, 706-707 (Pa. Super. 2011) (citations, quotation marks, 

brackets, and emphasis omitted). 

“In Pennsylvania, the general rule is that every witness is presumed 

to be competent to be a witness.” Commonwealth v. Judd, 897 A.2d 

1224, 1228 (Pa. Super. 2006) (citation omitted); see also Pa.R.E. 601(a). 

“A party who challenges the competency of a minor witness must prove by 

clear and convincing evidence that the witness lacks the minimal capacity ... 

(1) to communicate, (2) to observe an event and accurately recall that 

observation, and (3) to understand the necessity to speak the truth.” Pena, 

31 A.3d at 707 (internal quotation marks and citations omitted). 

N.J.E. specifically challenges the second prong of the above three-part 

test, what our Supreme Court has called “taint.” “Taint speaks to the 
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second prong ..., the mental capacity to observe the occurrence itself and 

the capacity of remembering what it is that the witness is called upon to 

testify about.” Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003)

(citation and brackets omitted; emphasis in original). 

In Delbridge, the Court stated the following regarding the issue of 

taint:

The core belief underlying the theory of taint is that a child’s 

memory is peculiarly susceptible to suggestibility so that when 

called to testify a child may have difficulty distinguishing fact 

from fantasy. Taint is the implantation of false memories or the 

distortion of real memories caused by interview techniques of 

law enforcement, social service personnel, and other interested 

adults, that are so unduly suggestive and coercive as to infect 

the memory of the child, rendering that child incompetent to 

testify.

Id., at 34-35 (internal citations omitted). The Court also explained the effect 

of taint on the testimonial capacity of immature witnesses:

The capacity of young children to testify has always been a 

concern as their immaturity can impact their ability to meet the 

minimal legal requirements of competency. Common experience 

informs us that children are, by their very essence, fanciful 

creatures who have difficulty distinguishing fantasy from reality; 

who when asked a question want to give the “right” answer, the 

answer that pleases the interrogator; who are subject to repeat 

ideas placed in their heads by others; and who have limited 

capacity for accurate memory.

A competency hearing concerns itself with the minimal capacity

of the witness to communicate, to observe an event and 

accurately recall that observation, and to understand the 

necessity to speak the truth. A competency hearing is not 

concerned with credibility. Credibility involves an assessment of 

whether or not what the witness says is true; this is a question 

for the fact finder. An allegation that the witness’s memory of 

the event has been tainted raises a red flag regarding 
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competency, not credibility. Where it can be demonstrated that a 

witness’s memory has been affected so that their recall of events 

may not be dependable, Pennsylvania law charges the trial court 

with the responsibility to investigate the legitimacy of such an 

allegation.

Id., at 39-40 (internal citations omitted). 

Here, the juvenile court reviewed the video of the victim’s interview 

with a forensic child abuse specialist, and heard the victim’s testimony in 

court. It concluded that while the victim demonstrated typical immature 

behaviors in reaction to a formal, unfamiliar atmosphere, his testimony 

regarding the incident was intelligible and consistent. Furthermore, the 

juvenile court found that the questioning utilized by the Assistant District 

Attorney and the forensic specialist was not unduly suggestive. 

Initially, we note that we are unable to review the interview with the 

forensic specialist. The DVD included in the certified record is unplayable. 

Furthermore, there is no transcript of the interview in the certified record. “It 

is the obligation of the appellant to make sure that the record forwarded to 

an appellate court contains those documents necessary to allow a complete 

and judicious assessment of the issues raised on appeal.” Everett Cash 

Mutual Insurance Company v. T.H.E. Insurance Company, 804 A.2d 

31, 34 (Pa. Super. 2002) (quoting Hrinkevich v. Hrinkevich, 676 A.2d 

237, 240 (Pa. Super. 1996)). We have no capability to review N.J.E.’s claims 

regarding the interview with the forensic specialist, and therefore that claim 

is waived.
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Regarding the questioning at the delinquency hearing, we have

reviewed the transcripts and conclude that the juvenile court did not abuse 

its discretion. The questioning was not unduly suggestive, and the juvenile 

court’s observations of the victim’s testimony are supported by the 

transcript. N.J.E.’s second claimed error merits no relief on appeal.

Dispositional order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016