J-S32039-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

Appellee :

 :

v. :

:

EUGENE ISLER, :

 :

Appellant : No. 39 WDA 2015 

Appeal from the Judgment of Sentence entered on December 17, 2014 

in the Court of Common Pleas of Fayette County, 

Criminal Division, No. CP-26-CR-0001102-2014 

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 3, 2015 

 Eugene Isler (“Isler”) appeals from the judgment of sentence imposed 

following his conviction of one count each of aggravated assault, simple 

assault and harassment.1 We affirm. 

 The trial court set forth the relevant factual and procedural history in 

its Opinion, which we adopt for purposes of this appeal. See Trial Court 

Opinion, 2/19/15, at 3-4.2 

 On appeal, Isler raises the following issues for our review: 

1. Did the [trial] court err in permitting the Commonwealth to 

play [a] forensic interview [of the child witness to the jury] 

prior to [the time that the] elements of the offense[s] 

charged were established? 

 

1

 See 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2709(a)(1). 

2 Pursuant to the trial court’s order, Isler filed a Concise Statement of issues 

complained of on appeal. Thereafter, the trial court issued an Opinion, 

pursuant to Pa.R.A.P. 1925(a).
J-S32039-15 

- 2 - 

2. Was the evidence insufficient to sustain [Isler’s] conviction[s] 

based upon the testimony and evidence presented at trial by 

the Commonwealth? 

3. Was the evidence presented by the Commonwealth 

insufficient relative to the [charges of] aggravated assault 

and simple assault[,] as the Commonwealth presented no 

evidence to establish [that Isler] caused the victim[’]s 

injuries[,] or had the intent to harm the victim? 

4. Was the evidence legally and factually insufficient to show 

that [Isler] committed the crimes beyond a reasonable 

doubt[, because] 

A. The evidence did not show that any action by [Isler] 

caused or attempted to cause [sic] serious bodily 

injury[?] 

B. The evidence did not show that any action[ ]by [Isler] 

attempted to cause [sic] injury[?] 

C. There was no evidence to show [that Isler] placed the 

alleged victim in danger of death or serious bodily

injury[?] 

5. Did[ ]the jury disregarded [sic] the judge’s charge of 

justification (self[-]defense) in the instant case?

6. Was [sic] [Isler’s] constitutional, due process and right to 

confrontation rights violated when [the trial judge] did not 

allow [Isler] to be present at an in camera hearing of [the] 

child witness[,] which did not involve any crime of a sexual 

nature? 

Brief for Appellant at 8-9 (capitalization omitted).

3

 In his first issue, Isler asserts that the victim testified that she did not 

recall Isler ever hitting or striking her. Id. at 14 (citing N.T., 12/8/14, at 

 

3

 Isler does not raise any claim regarding his conviction of harassment; 

rather, his claims pertain only to his convictions of aggravated assault and 

simple assault. 
J-S32039-15 

- 3 - 

50). On this basis, Isler contends that the trial court erred by permitting the 

Commonwealth to play a forensic interview of the child witness before the 

elements of the offenses charged were established. Brief for Appellant at 

14. Isler claims that the child witness testified that “all [Isler] and the victim 

were doing were [sic] arguing” and that he “never saw the alleged victim 

fall.” Id. at 14-15 (citing N.T., 12/8/14, at 87, 94). Therefore, Isler 

contends, the trial court erred by permitting the Commonwealth to play the 

forensic interview of the child witness before the elements of the crimes 

charged had been proven beyond a reasonable doubt. Brief for Appellant at 

15. 

 Isler fails to cite any legal authority in support of his claim, in violation 

of Pennsylvania Rule of Appellate Procedure 2119(a). See Pa.R.A.P. 

2119(a). Further, Isler has failed to identify the place in the record where 

this issue was preserved in the trial court, as required by our procedural 

rules. See Pa.R.A.P. 2117(c), 2119(e). Our independent review confirms 

that no objection of this nature was contemporaneously made when the 

forensic interview of the child witness was played to the jury. See N.T., 

12/9/14, at 39-41; see also Commonwealth v. Olsen, 82 A.3d 1041, 

1050 (Pa. Super. 2013) (stating that a defendant must make a timely and 

specific objection at trial or face waiver of the issue on appeal). Thus, 

because Isler failed to preserve this issue for our review, it is waived. See
J-S32039-15 

- 4 - 

Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.”). 

Isler’s second, third and fourth issues each present a challenge to the 

sufficiency of the evidence. Accordingly, we will address them together. 

Isler contends that the evidence presented at trial was insufficient to prove 

every element of the crimes charged beyond a reasonable doubt. Brief for 

Appellant at 17, 18, 23, 25. Isler asserts that his convictions were based on 

mere speculation. Id. at 18, 25.4 Isler claims that the Commonwealth did 

not establish his intent to inflict serious bodily injury or that he attempted to 

inflict such injuries. Id. at 19. Isler contends that he “did not commit a 

series of acts that would tend to show his intent,” and that “[t]his indicates 

that [Isler] did not intend to cause the victims serious bodily injury or to 

place them in fear of it.” Id. at 21, 27. Isler asserts that the record is 

“devoid of any direct or circumstantial evidence to show that [he] caused the 

victims injuries or had the intent to harm the victim.” Id. at 22, 25. 

In its Opinion, the trial court addressed Isler’s second, third and fourth 

issues, set forth the relevant law, and determined that they lack merit. See

 

4

 Isler also argues that the jury’s verdict was against the weight of the 

evidence. Brief for Appellant at 18-19, 25. A claim that the verdict is 

against the weight of the evidence is waived unless it is raised in the trial 

court in a motion for a new trial, in a motion prior to sentencing, or in a 

post-sentence motion. See Pa.R.Crim.P. 607(A)(1)-(3); see also

Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011). Here, 

because Isler failed to raise this issue in the trial court, he has failed to 

preserve this issue for our review. 
J-S32039-15 

- 5 - 

Trial Court Opinion, 2/19/15, at 5-9. We concur with the sound reasoning of 

the trial court and affirm on this basis as to these issues. See id. 

In his fifth issue, Isler contends, without explanation, that the jury 

disregarded the judge’s instruction on justification. Brief for Appellant at 29. 

In its Opinion, the trial court addressed Isler’s fifth issue, set forth the 

relevant law, and determined that it lacks merit. See Trial Court Opinion, 

2/19/15, at 9. We concur with the sound reasoning of the trial court and 

affirm on this basis as to this issue. See id. 

In his final claim, Isler contends that he was removed by the trial 

judge from the in camera hearing of the child witness, and that such 

removal violated his constitutional, due process and confrontation rights. 

Brief for Appellant at 30. 

In its Opinion, the trial court addressed Isler’s final issue, set forth the 

relevant law, and determined that it lacks merit. See Trial Court Opinion, 

2/19/15, at 10-13. We concur with the sound reasoning of the trial court 

and affirm on this basis as to this issue. See id. 

Judgment of sentence affirmed. 

Shogan, J., joins the memorandum. 

Olson, J., concurs in the result. 
J-S32039-15 

- 6 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/3/2015 
Circulated 05/08/2015 12:06 PM

J- 5J2o3t/ IS~ 

IN THE COURT OF COMMON PLEAS OF FA YETIE COUNTY, PENNSYLVANIA 

COMMONWEAL TH OF PENNSYLVANIA 

v. 

EUGENE ISLER, 

Defendant. 

OPINION 

Meghann Mikluscak, Esq. Assistant District Attorney 

Mary Caf!1pbell-Spegar, Esq. for the Defendant 

LESKINEN, J. 

CRIMINAL DIVISION 

No. 1102 of 2014 

Before the Court is a "Concise Statement of Matters Complained of Appeal" that 

was filed on behalf of Defendant Eugene Isler (hereinafter "Defendant"). On December 

11, 2014, Defendant was convicted by a jury of Aggravated Assault and Simple Assault. 

In addition, the Court found Defendant guilty of Harassment. On December 17, 2014, 

Defendant was sentenced to a period of incarceration of not less than three and one 

half (3 %) years and not more than ten (10) years. This sentence is to run consecutive 

to a sentence imposed on May 21, 2014 by Senior Judge Solomon at No. 1900 of 2013, 

Count 1. This timely appeal followed. 

Defendant raises the following issues: 

"ISSUE NO. 1: DID THE COURT ERR IN PERMITTING THE 

COMMONWEAL TH TO PLAY FORENSIC 

INTERVIEW PRIOR TO ELEMENTS OF THE 

OFFENSE CHARGED WERE ESTABLISHED? 

1 

/, { 
f Circulated 05/08/2015 12:06 PM

(' 

ISSUE NO. 2: 

ISSUE NO. 3: 

ISSUE NO. 4: 

ISSUE NO. 5: 

ISSUE NO. 6: 

WAS THE EVIDENCE SUFFICIENT TO SUSTAIN 

CONVICTION BASED UPON THE TESTIMONY AND 

EVIDENCE PRESENTED AT TRIAL BY THE 

COMMONWEAL TH? 

WAS THE EVIDENCE PRESENTED BY THE 

COMMONWEALTH INSUFFICIENT RELATIVE TO 

THE AGGRAVATED ASSAULT AND SIMPLE 

ASSAULT AS THE COMMONWEAL TH PRESENTED 

NO EVIDENCE TO ESTABLISH THE APPELLANT 

CAUSED THE VICTIMS INJURIES OR HAD THE 

INTENNT [SIC] TO HARM THE VICTIM? 

WAS THE EVIDENCE LEGALLY AND FACTUALLY 

INSUFFICIENT TO SHOW THAT DEFENDANT 

COMMITTED THE CRIMES BEYOND A 

REASONABLE DOUBT? 

A THE EVIDENCE DID NOT SHOW THAT ANY 

ACTION BY APPELLANT CAUSED OR 

ATTEMPTED TO CAUSE SERIOUS BODILY 

INJURY 

B. THE EVIDENCE DID NOT SHOW THAT ANY 

ACTIONBY [SIC] THE APPELANT 

ATTEMPTED TO CAUSE INJURY 

C. THERE WAS NO EVIDENCE TO SHOW THE 

APPELLANT PLACED THE ALLEGED VICTIM 

IN DANGER OF DEATH OR SERIOUS 

BODILY INJURY 

DIDTHE [SIC] JURY DISREGARDED [SIC] THE 

JUDGE'S CHARGE OF JUSTIFICATION (SELF 

DEFENSE) IN THE INSTANT CASE? 

WAS THE APPELLANT'S CONSTITUTIONAL, DUE 

PROCESS AND RIGHT TO CONFRONTATION 

RIGHTS VIOLATED WHEN COURT DID NOT 

ALLOW APPELLANT TO BE PRESENT AT AN IN 

CAMERA HEARING OF CHILD WITNESS WHICH 

DID NOT INVOLVE ANY CRIME OF A SEXUAL 

NATURE?" 

2 
Circulated 05/08/2015 12:06 PM

BACKGROUND 

The victim Rita Lowery resides at 159 Connellsville Street, Uniontown, 

Pennsylvania. (Trial Tr. Day 1, 42, Dec. 8, 2014). The incident in question here 

occurred on May 4, 2014. Id. at 44. At that time, also residing at the Connellsville 

address was the Defendant and Darion Seehoffer, a minor. Id. at 43. Rita Lowery was 

acting as guardian over Darion and had been acting in such a capacity since Darion 

was ten months old. Id. at 47. On the night of May 4th, an argument occurred between 

the victim and the Defendant over money. Id. at 44. The argument began with verbal 

insults but quickly escalated and became physical. Id. at 44-49. 

The Defendant repeatedly punched Ms. Lowery in the face, as many as three 

times, and choked her with his arm around her neck. (Trial Tr. Day 2, 48-50, Dec. 9, 

2014). The Defendant choked the victim more than once during the fight. Id. at 57. 

Having witnessed the physical altercation between the victim and Defendant, Darion 

Seehoffer confronted the Defendant and pleaded several times for him to stop. Id. 

Darion then called the police after having witnessed the incident. (Trial Tr. Day 1, 88, 

Dec. 8, 2014). By the time police and emergency medical personnel arrived, the 

Defendant had left the residence. Id. at 89. 

Police and paramedics who arrived at the Connellsville address found Rita 

Lowery unconscious, slumped over a chair making snoring respirations, and covered in 

her own vomit Id. at 61, 103; (Trial Tr. Day 2, 67, Dec. 9, 2014). Ms. Lowery never 

regained consciousness while paramedics attended to her at her residence. (Trial Tr. 

Day 1, 63, Dec. 8, 2014). Due to the severity of her injuries, the victim needed a life 

3 
Circulated 05/08/2015 12:06 PM

flight from Uniontown Hospital to Ruby Hospital in West Virginia. Id. at 50, 62. Ms. 

Lowery finally regained consciousness at the hospital, but has no memory from the time 

the fight began until she woke up in the hospital. Id. at 46. She remained a patient at 

Ruby Hospital for forty-eight (48) days because of her injuries. Id. 

On May 5, 2014, Defendant was brought to the Uniontown Police Station and 

was interviewed by Captain David Rutter. (Trial Tr. Day 2, 120, Dec. 9, 2014). After 

being brought into custody, Defendant was read his Miranda rights, which he waived. 

Id. at 121-23. During the interview, the Defendant became emotional and stated, "I 

didn't squeeze that hard. Please." Id. at 126. The Defendant then indicated he held 

Rita Lowery down on the loveseat while choking her. Id. at 127-28. The Defendant 

reiterated that he choked her from behind with one arm around her neck for at least 

twenty (20) seconds, and further confessed he may have punched her. Id. at 132-35. 

Defendant was charged with four counts: Aggravated Assault, Criminal Attempt 

to Commit Homicide, Simple Assault, and summary Harassment. A jury trial was held 

before this Court on December 8-11, 2014, and Defendant was found guilty on all 

counts except the Criminal Attempt. 

On December 17, 2014, Defendant was sentenced to a period of incarceration of 

not less than three and one half (3 %) years and not more than ten (10) years, with this 

sentence to run consecutive to a prior sentence. Counsel made no Post-Sentence 

Motions and filed this timely appeal. 

4 
Circulated 05/08/2015 12:06 PM

DISCUSSION 

The playing of the forensic interview for the jury 

First, Defendant argues that the Court erred in permitting the Commonwealth to 

play a video of the forensic interview of the child witness before the elements of the 

offenses charged were presented. Defendant fails to cite any authority which gives 

merit to his argument. Through our own research, the Court has not found any 

cognizable authority to support this argument and does not understand the grounds for 

it. Furthermore, Defense counsel offered no objection at the time the Commonwealth 

played the forensic interview for the jury. (See Trial Tr. Day 2, 41, Dec. 9, 2014). 

Therefore, this argument is without merit. 

Sufficiency of the evidence 

In Issues 2, 3 and 4, Defendant makes several claims regarding the sufficiency of 

the evidence. In particular, Defendant avers the evidence was insufficient as to the 

following: to sustain a conviction, relative to both Aggravated Assault and Simple 

Assault, and to prove Defendant committed the crimes beyond a reasonable doubt. 

Defendant further elaborates on the reasonable doubt issue by claiming the evidence 

did not show 1) Defendant caused or attempted to cause serious bodily injury; 2) 

attempted to cause injury; and 3) placed the victim in danger of death or serious bodily 

injury. 

On appeal, the standard applied for a determination of the sufficiency of the 

evidence is: 

5 
Circulated 05/08/2015 12:06 PM

whether viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to enable the 

fact-finder to find every element of the crime beyond a reasonable doubt. 

In applying the above test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant's guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be drawn 

from the combined circumstances. The Commonwealth may sustain its 

burden of proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all evidence actually 

received must be considered. Finally, the trier of fact while passing upon 

the credibility of witnesses and the weight of the evidence produced, is 

free to believe all, part or none of the evidence. 

Commonwealth v. Snyder, 870 A.2d 336, 350 (Pa. Super. 2005) (citations omitted). 

Regarding the crimes the Defendant was convicted of here, a person is guilty of 

aggravated assault if he "attempts to cause serious bodily injury to another, or causes 

such injury intentionally, knowingly or recklessly under circumstances manifesting 

extreme indifference to the value of human life." 18 Pa.C.S.A. § 2702(a)(1). A person 

is guilty of simple assault if he "attempts to cause or intentionally, knowingly or 

recklessly causes bodily injury to another." 18 Pa.C.S.A. § 2701 (a)(1 ). A person is 

guilty of harassment when "with intent to harass, annoy or alarm another, the person 

strikes, shoves, kicks or otherwise subjects the other person to physical contact, or 

attempts or threatens to do the same." 18 Pa.C.S.A. § 2709(a)(1 ). 

The sum of Defendant's argument is that the Commonwealth's evidence was 

insufficient in establishing that the Defendant caused or intended to cause the injuries to 

Rita Lowery. This claim, however, is without merit. When considering the testimony 

presented at trial, it is clear that the Commonwealth presented ample evidence of 

6 
Circulated 05/08/2015 12:06 PM

Defendant's guilt, and thereby carried its burden in proving the necessary elements of 

these crimes. The testimony of several witnesses established that the Defendant 

assaulted Rita Lowery. 

First, Rita Lowery herself testified about the incident. Lowery stated that she and 

the Defendant began to argue, and he "got really mad and he came at me ... I don't know 

if he hit me in the head or he hit the wall, but I turned ... he went to hit me and I turned 

like away from it." (Trial Tr. Day 1, 45, Dec. 8, 2014). She then testified there was 

shoving between her and the Defendant. Id. After that, Ms. Lowery has no memory of 

anything until she woke up in Ruby Hospital, where she was admitted for forty-eight (48) 

days. Id. at 46. 

Darion Seehoffer next testified in further detail about the confrontation between 

Lowery and the Defendant, having witnessed it first-hand. At trial, Darion stated the 

Defendant "started beating her up ... he like punched her in the arm." Id. at 100. Darion 

then said Lowery passed out "after it happened." Id. at 103. Subsequent to Darion's 

trial testimony, the Commonwealth played a video forensic interview between Darion 

and Desirea Patterson of Child's Place at Mercy Hospital. In this interview, Darion said 

the Defendant "punched her and kept punching her, and he punched her in the 

face ... then he choked her." (Trial Tr. Day 2, 48, Dec. 9, 2014). Darion specified that 

the Defendant punched Ms. Lowery three times and choked her more than once. Id. at 

49-50, 57. In describing the choking, Darion said, "She couldn't breathe ... I kept telling 

him to stop and then she stopped breathing." Id. at 57. 

7 
Circulated 05/08/2015 12:06 PM

The Commonwealth then played a video deposition of Dr. Charles Rosen, who 

was Rita Lowery's attending physician. Dr. Rosen explained the injuries to Rita Lowery 

do not occur naturally and "would take a significant trauma to cause this injury." Id. at 

100-01. When questioned as to whether this trauma may have occurred naturally, Dr. 

Rosen replied in the negative and said "it is extraordinarily likely that this was a 

traumatic subdural hematoma." Id. at 108-09. 

Lastly, the jury was able to hear Defendant himself, in a recorded interview with 

Captain David Rutter of the Uniontown Police Department, describe this incident. In the 

interview, the Defendant said, "I didn't squeeze that hard. Please." Id. at 126. The 

Defendant indicated to Captain Rutter that he held Rita Lowery down, choking her on 

the loveseat so she would stop. Id. at 126-27. The Defendant confessed he was 

behind her at one point with his arm around her neck. Id. at 133-34. Moreover, the 

Defendant said he "may have" punched her because he was mad at her, and during the 

interview, Captain Rutter did observe physical injury to Defendant's right hand. Id. at 

126, 154. 

This testimonial evidence is more than sufficient for the jury to find Defendant 

guilty of the crimes charged here, and equally sufficient to sustain his conviction. See, 

e.g., Commonwealth v. Faulk, 928 A.2d 1061, 1071 (Pa. Super. 2007) (holding 

punching victim numerous times in the head rendering him unconscious, with physician 

testifying to a "substantial force" as causing the injuries, was sufficient to establish 

aggravated assault); Commonwealth v. Emler, 903 A.2d 1273, 1278-79 (Pa. Super. 

2006) (finding sufficient evidence to support conviction on both simple assault and 

harassment where defendant "grabbed [the victim] from behind in a choking hold, 

8 
Circulated 05/08/2015 12:06 PM

pinned him to the ground with his heavier body, and struggled with him for control of a 

loaded shotgun."); Commonwealth v. Caterino, 678 A.2d 389, 392-93 (Pa. Super. 1996) 

(holding injuries to victim requiring over three hours of emergency medical attention was 

sufficient to establish serious bodily injury for aggravated assault). Thus, the 

Defendant's sufficiency of the evidence arguments must fail. 

Justification charge to the jury 

Next, Defendant questions whether the jury disregarded this Court's charge of 

justification. This argument must fail because it is not for the Court to pass judgment 

upon a question of how the jury may have weighed the evidence. When there is 

evidence to support a defense, it is "for the trier of fact to pass upon that evidence and 

improper for the trial judge to exclude such consideration by refusing the charge." 

Commonwealth v. OeMarco, 809 A.2d 256, 261 (Pa. 2002) (quoting Commonwealth v. 

Lightfoot, 648 A.2d 761, 764 (Pa. 1994)) (emphasis added). 

In the case sub judice, this Court properly charged the jury on a justification 

defense, as there was evidence presented at trial to support such a charge. (See, e.g., 

Trial Tr. Day 1, 49, 87, Dec. 8, 2014). As the trier of fact, it was for the jury alone to 

weigh the evidence and determine whether the Defendant justifiably used force in selfdefense against Rita Lowery. The jury, however, concluded that Defendant's use of 

force was not justifiable by convicting him on both assault counts. It is impermissible for 

this Court to now make a contrary finding as to the jury's assessment of the evidence, 

or to somehow rule that the jury may have disregarded the justification charge entirely. 

Therefore, Defendant's claim here fails. 

9 
Circulated 05/08/2015 12:06 PM

In camera hearing of child witness 

Finally, Defendant argues that his due process and Confrontation Clause rights 

were violated when the Court did not allow him to be present for an in camera hearing 

with Darion Seehoffer, a minor, since Defendant's crimes were not sexual in nature. 

However, this argument is inconsistent with the mandate of the statutes governing outof-court statements by child witnesses. 42 Pa.C.S.A. § 5985.1 provides: 

Admissibility of certain statements 

(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 offenses), 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.-ln 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 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 or any other person, 

such as a person who has dealt with the child in a medical or 

therapeutic setting. 

10 
Circulated 05/08/2015 12:06 PM

(a.2) Counsel and confrontation.-lf the court hears testimony in 

connection with making a finding under subsection (a)(2)(ii), all of the 

following apply: 

(1) Except as provided in paragraph (2), the defendant, the attorney 

for the defendant and the attorney for the Commonwealth or, in the 

case of a civil proceeding, the attorney for the plaintiff has the right 

to be present. 

(2) If the court observes or questions the child, the court shall not 

permit the defendant to be present. 

At the hearing, Defense counsel offered no specific objection to Defendant's 

removal from the room, but merely stated that "anything we have ever done in camera, 

the defendant has always been with me." (Trial Tr. Day 1, 75, Dec. 8, 2014). 

Nevertheless, the Court questioned the child Darion outside of the Defendant's 

presence in order to make a determination under § 5985.1. While the statute allows 

defense counsel to be present if the court observes or questions a child witness during 

the process of determining whether to permit the special procedures for taking 

testimony, the court may not permit the defendant to be present. See§ 5985.1 (a.2)(2) 

(emphasis added). In addition, the Defendant's assertion that his rights were violated 

because his crimes were not of a sexual nature is misguided, as§ 5985.1 (a) plainly 

applies to child witnesses in assault offenses as well. 

The Pennsylvania Supreme Court recently held that a § 5985 hearing is not a 

critical stage for purposes of a defendant's right to be confronted with the witnesses 

against him. Commonwealth v. Williams, 84 A.3d 680, 686-87 (Pa. 2014) (citing 

Maryland v. Craig, 497 U.S. 836, 858 (1990)). In Williams, the defendant argued that 

his due process and confrontation rights were violated in not allowing him to offer 

rebuttal testimony at the § 5985 hearing to the Commonwealth's expert testimony of the 

11 
Circulated 05/08/2015 12:06 PM

minor victim's psychological state. 84 A.3d at 685. The court found, based on the 

Supreme Court's ruling in Craig, "a Section 5985 hearing is not a critical stage. 

Contrary to Appellant's assertions, his substantive right 'to be confronted with the 

witnesses against him,' as guaranteed under the Sixth Amendment to the United States 

Constitution and Article 1, Section 9 of the Pennsylvania Constitution, is not subject to 

preservation or loss in a Section 5985 hearing." Williams, 84 A.3d at 686-87 (quoting 

Craig, 497 U.S. at 858). 

The Williams court also concluded that there was no violation of defendant's due 

process rights in denying him access to medical information and in presenting expert 

testimony regarding the minor victim at the hearing. 84 A.3d at 687-88. The court 

reasoned that there was no violation based on "the narrow and highly focused judicial 

inquiry" under§ 5985, "which balances the state's interest in protecting a child who is 

the victim of a crime against the constitutional interest of the accused in confronting the 

witnesses against him or her." Id. The legislative intent behind these hearings is a 

public policy concern of protection of the child in the criminal justice system, See 42 

Pa.C.S.A. § 5981, while also taking into consideration the accused rights under§ 5985. 

Here, Defendant's counsel had the opportunity to be present the entire time and 

question Darion at the in camera hearing. (Trial Tr. Day 1, 78-79, Dec. 8, 2014). The 

Court, having used the hearing for the sole purpose of determining Darion's credibility, 

believed him competent to testify at trial. Id. at 83. Darion did testify at trial, then giving 

the Defendant the opportunity of face-to-face confrontation of a witness sworn under 

oath, full cross-examination, and in-person observation of the witness by the court, jury, 

and defendant. See Williams, 84 A.3d at 689 (finding the rights of the accused are 

12 
Circulated 05/08/2015 12:06 PM

preserved for§ 5985 purposes under these circumstances). Accordingly, we find no 

violation of Defendant's rights in denying him access to the hearing, and his argument 

carries no weight. 

CONCLUSION 

For the aforementioned reasons, the Court cannot agree with Defendant's 

contentions, and affirms its trial rulings and Defendant's judgment of sentence. 

ATTEST: 

Fco~~ 

~--2 

STEVE P. LESKINEN, JUDGE 

~·- -~ ; ~.) 

d-1q-15 J r.40 

DIST/DATE 

DEF __ _ 

DA I 

PO L 

PD .:1: 

WARD * 

SHER __ _ 

CA :I: 

ATTY __ _ 

cc ___ _ 

Ba.c Asscc..-R 10 11 Ll8 61 ffd SLOZ 

0311.:1 

13