J-S26039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK K BROWN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 318 MDA 2022

Appeal from the Judgment of Sentence Entered November 18, 2021

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0004485-2018

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

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 23, 2022

Appellant Mark K. Brown appeals from the judgment of sentence of 

fourteen (14) years to forty (40) years in prison entered in the Court of 

Common Pleas of Lancaster County on November 18, 2021, following his 

convictions of numerous sexual offenses against a minor child, B.T.P.

1

 

Following our review, we affirm.

The trial court set forth the relevant facts and procedural history herein 

as follows: 

PROCEDURAL BACKGROUND

By Criminal Information docketed to Number CP-36-

Cr0004485-2018, Appellant was charged with allegedly having 

committed four counts of Rape of a Child

1

, four counts of 

Involuntary Deviate Sexual Intercourse with a Child2, two counts 

of Indecent Assault3, one count of Corruption of Minors4, and one 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 We will refer to the minor victim by his initials or as “the Child” to protect 

his identity. 
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count of Unlawful Contact with a Minor5. These incidents were to 

alleged to [have] occurred between September 1, 2017 and 

November 30, 2017 in New Holland Borough, Lancaster County 

Pennsylvania. 

Trial commenced on April 12, 2021, before this member of 

the trial court and a jury. It is noted that prior to the 

commencement of trial, the Commonwealth withdrew two counts 

of Rape of a Child and two counts of Involuntary Sexual 

Intercourse with a Child, which were previously indicated as 

Counts 3, 4, 7, and 8 on the Criminal Information. (N.T., Trial, 

April 13, 2021, P. 54), On April 14, 2021, Appellant was found 

guilty of all remaining charged counts.6 The trial court deferred 

sentencing pending the completion of a Pre-Sentence 

investigation, with sentencing initially scheduled for September 

24, 2021. Due to certain medical concerns sentencing was 

rescheduled until November 18, 2021.

On November 18, 2021, the court sentenced Appellant as 

follows:

Count 1 -- Rape of A Child — Not less than fourteen nor 

more than forty years’ incarceration in the state correctional 

system.

Count II — Rape of a Child —Not less than fourteen nor more 

than forty years’ incarceration in the state correctional 

system. This sentence was imposed concurrently with Count 

I.

Count III — Involuntary Deviate Sexual Intercourse—

Merged with Count I.

Count IV — Involuntary Deviate Sexual intercourse —

Merged with Count II.

Counts V through VIII — Indecent Assault (2 counts), 

Corruption of Minors, and Unlawful Contact with a Minor —

As to each count, not less than three years and six months 

nor more than seven (7) years’ incarceration in the state 

correctional system. All such sentences were imposed 

concurrently with Count I.

Appellant was also ordered to pay the costs of prosecution 

and restitution in the amount of $1,178. In addition, it was noted 

that Appellant was not eligible for participation in the RRRI
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Program, Motivational Boot Camp Program, State Drug Treatment 

Court Program, or Short Sentence Parole Program and that the 

attorney for the Commonwealth did not waive any such

ineligibility. Appellant was made subject to the required provisions 

of the Sexual Offender Registration and Notification Act. In 

addition, Appellant was ordered to provide the required DNA 

sampling and to pay any associated costs thereof, was 

recommended for any educational, vocational, drug and alcohol, 

or any other programming deemed necessary by the Pennsylvania

Department of Corrections and advised that he would be subject 

to any conditions imposed by the Pennsylvania Board of Probation 

and Parole.

On November 19, 2021, Appellant filed a Post-Sentence 

Motion seeking a reduction in sentence and withdrawal by trial 

counsel as counsel for Appellant. By order dated November 29,

2021, and filed on November 30, 2021, the court denied 

Appellant’s Post-Sentence Motion seeking a modification of 

sentence and granted trial counsel leave to withdraw as counsel 

for Appellant.

Subsequently, on December 1, 2021, Attorney MaryJean 

Glick of the Office of the Public Defender of Lancaster County 

entered her appearance on behalf of Appellant. On December 29,

2021, Appellant filed a timely Notice of Appeal with the Superior 

Court of Pennsylvania. By order dated December 30, 2021, 

Appellant was directed to file a concise statement of errors

complained of on appeal within twenty-one days.

On January 4, 2022, Attorney Diana C. Kelleher, also of the 

Office of the Public Defender of Lancaster County, entered her 

appearance and withdrew the appearance of Attorney MaryJean 

Glick for the Appellant.

On January 14, 2022, Appellant filed a Motion for Extension 

of time to file Statement of Errors based upon the change in 

counsel and resulting delays in transcription of all relevant

proceedings. By order of January 18, 2022, the court granted this 

request and directed that any statement of errors was due within 

twenty-one days following receipt of all transcripts. On February 

9, 2022, Appellant filed his statement of errors complained on 

appeal. As such, this matter is ripe for review.7

___

118 Pa.C.S.A. § 3121(c).

218 Pa.C.S.A. § 3123(b).

318 Pa.C.S.A. § 3126(a)(7).

418 Pa.C.S.A. § 6301(a)(1)(ii).
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518 Pa.C.S.A. § 6318(a)(1). 

6

It is noted that the remaining counts were renumbered on the 

verdict slip presented to the jury in this matter so as to make no 

reference to the counts withdrawn by the Commonwealth.

7 By correspondence dated March 1, 2022, this court requested a 

thirty-day extension of time to submit the Opinion in this matter 

as a result of the transcription delays and delayed filing of 

Appellant’s Statement of Errors. 

Trial Court Opinion, filed 3/23/22 at 1-4. 

In his brief, Appellant presents the following Statement of Question 

Presented: 

Did the trial court err in admitting the out of court statements 

made by the victim to his babysitter, Chase Joseph, where the 

content and circumstances of those statements did not 

demonstrate sufficient indicia of reliability as required for the 

tender years exception to the hearsay rule?

Brief for Appellant at 6. 

Generally, this Court’s standard of review for evidentiary rulings, 

including the admission of hearsay, is abuse of discretion. Commonwealth

v. Walter, 625 Pa. 522, 93 A.3d 442, 449 (2014). “Issues of statutory 

interpretation are questions of law; our standard of review is de novo and our 

scope of review is plenary.” Commonwealth v. Luster, 234 A.3d 836, 838 

(Pa.Super. 2020). As such, we review a trial court’s decision to admit 

evidence pursuant to the “Tender Years Statute”

2

for an abuse of 

discretion. See Commonwealth v. Curley, 910 A.2d 692, 697 (Pa.Super. 

2006) (citation omitted). 

____________________________________________

2 42 Pa.C.S.A. § 5985.1.
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It is well-settled that the “Tender Years Statute creates an exception to 

the hearsay rule in recognition of the fragile nature of the victims of childhood 

sexual abuse.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 988 

(Pa.Super. 2007) (citation omitted). Specifically, the statute provides as 

follows:

(a) General rule.--

(1) An out-of-court statement made by a child victim or witness, 

who at the time the statement was made was 16 years of age or 

younger, describing any of the offenses enumerated in paragraph 

(2), not otherwise admissible by statute or rule of evidence, is 

admissible in evidence in any criminal or civil proceeding if:

(i) 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

(ii) the child either:

(A) testifies at the proceeding; or

(B) is unavailable as a witness.

42 Pa.C.S.A. § 5985.1(a).

The Act also includes a notice requirement that states:

A statement otherwise admissible under subsection (a) shall not 

be received into evidence unless the proponent of the statement 

notifies the adverse party of the proponent's intention to offer the 

statement and the particulars of the statement sufficiently in

advance of the proceeding at which the proponent intends to offer

the statement into evidence to provide the adverse party with a

fair opportunity to prepare to meet the statement.

42 Pa.C.S.A. § 5985.1(b). 

Herein, Appellant admits that B.T.P.’s disclosure to Mr. Joseph had been 

made spontaneously while the latter was babysitting and that there was no 
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evidence to show the Child had a motive to fabricate his statements. See

Brief for Appellant at 14. However, while he admits that Mr. Joseph described 

the Child as “uneasy” and displaying “a lot of facial tics,” N.T., Tender Years 

Hearing/Trial, 4/12/21 at 43, Appellant posits that because no testimony was 

presented that “the victim was crying, or upset, or overly emotional when 

making the disclosure,” the trial court erred when it characterized B.T.P. as

being “rather emotional” and “quite emotional” for purposes of applying the 

tender years doctrine. Brief for Appellant at 15. 

Appellant also points to inconsistencies in the terminology B.T.P. used 

in describing Appellant’s actions with Mr. Joseph, a nurse practitioner, and the 

forensic interviewer as proof that the Child’s statement lacked the necessary 

indicia of reliability. Id. at 16-18. Appellant reasons the unreliability is 

compounded by the fact that Mr. Joseph has suffered a “traumatic brain 

injury” which made his testimony unreliable. Id. at 18-19. 

When considering these arguments, the trial court reasoned as follows: 

Our appellate courts have held that the test for establishing 

whether a child’s testimony provides the sufficient indicia of 

reliability requires a trial court to consider the totality of the

attendant circumstances. Stated another way, our Superior Court 

has held that, “pursuant to the Tender Years Hearsay Act, a trial 

court must consider the totality of the circumstances when

determining whether a child’s out-of-court statement is 

trustworthy.” Commonwealth Y. Lyons, 833 A.2d 245, 253 (Pa. 

Super. 2003). The statute requires “indicia of reliability” which

“include, inter alia, the spontaneity of the statements, consistency 

in repetition, the mental state of the declarant, use of terms 

unexpected in children of that age, and lack of motive to 

fabricate.” Strafford, 194 A.3d at 173.
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In this matter, the trial court conducted a hearing outside of 

the presence of the jury relative to the Commonwealth’s request 

to admit certain statements of the child victim at trial pursuant to 

42 Pa.C.S.A. §5985.1. Specifically, on April 12, 2021, the 

Commonwealth presented the testimony of Julie Stover, a medical 

provider who had been employed by Lancaster General Health and 

the Lancaster County Children's Alliance. Ms. Stover testified 

regarding certain statements made to her by the child victim 

during a physical examination that she conducted on January 22, 

2018. (N.T., Trial, 4/12/21, p. 7). During this examination, the 

child victim made statements including that Appellant’s actions 

“made him feel weird”, that Appellant’s “junk touched my junk”, 

and that both Appellant and the child victim had their pants down 

during the alleged assaults. (N.T., Trial, 4/12/21, pp. 8-9). Next, 

the Commonwealth presented the testimony of Karen Melton, a 

forensic interviewer also employed by the Lancaster County

Children’s Alliance. Ms. Melton testified regarding certain 

statements made to her by the child victim during a forensic 

interview that she conducted with the child victim on January 22, 

2018. (N.T., Trial, 4/12/21, p. 23). This forensic interview was 

recorded by audio and visual means. (N.T., Trial, 4/12/21, p.23), 

A copy of this recording was introduced as Commonwealth Exhibit

Number 3 and was reviewed in its entirety by the court. On April 

13, 2021, the Commonwealth presented the testimony of the child 

victim’s babysitter, Chase Joseph. Mr. Joseph testified regarding 

the initial disclosure made to him by the child victim on December 

1, 2017, when the child was seven years of age. Mr. Joseph 

indicated that the child victim made statements such as: the fact 

that he needed to tell Mr. Joseph a secret; that Mr. Joseph could 

not tell the victim’s mother the secret; the victim was talking 

about testicles and masturbation; the victim indicated that 

Appellant showed him how to masturbate and made motions 

demonstrative of such; the victim asked Mr. Joseph if he knew 

what testicles and a penis were used for; and, the victim indicated 

that Appellant showed him that “when you grab it and you go up 

and down, it will make it come out”. (N.T., Trial, 4/13/21, pp. 39-

44). In addition, Mr. Joseph testified that the child victim was 

demonstrating visual tics and uneasiness during this disclosure. 

(N.T., Trial 4/13/21, pp. 42-43). Mr. Joseph did indicate that his 

recollection of this disclosure was “a bit jumbled” as he suffers 

from a traumatic brain injury, although he was able to provide his

testimony in detail. (N.T., Trial, 4/13/21, p. 46).

At the conclusion of the tender years hearing, the 

Commonwealth moved to admit the relevant statements made by 
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the child victim to Ms. Stover, Ms. Melton, and Mr. Joseph at trial

under 42 Pa.C.S.A. § 5985.1. Trial counsel offered no objection to 

the admission of the statements made to Ms. Stover and Ms. 

Melton. Trial counsel objected to the admission at trial of the 

statements made to Mr. Joseph. (N.T., Trial, 4/13/2 1, p. 51). Trial 

counsel argued that Mr. Joseph’s testimony failed to meet the 

required standard for the tender years exception because the 

witness stated that he had a traumatic brain injury, that his 

recollection was a bit jumbled, and that the statements allegedly 

made by the child victim to Mr. Joseph were “a little bit different 

tha[n] what he told the forensic interviewer and the nurse 

practitioner.” (N.T., Trial, 4/12/21, p. 51).

In response, although admittedly stated in a somewhat 

inarticulate manner, this court noted that Mr. Joseph’s 

individualized concerns seemed to be appropriate for crossexamination at trial but noted that the relevant factors in 

assessment of indicia of reliability pertain to the child victim as 

the declarant. (N. T., Trial, 4/13121, p. 5l).

In reaching the determination to admit the statements 

offered by the child victim to Mr. Joseph at trial, this court 

considered that: the statements were spontaneously made by the 

child; there existed limited inconsistency in the child’s statements; 

the mental state of the child victim; the child’s use of unexpected 

terms; the lack of any evidence demonstrative of a motive to

fabricate on the part of the child; and, the emotional state of the 

child when making the challenged disclosures. (N.T., Trial, 

4/13/21, pp. 51-52). Upon consideration of the totality of the 

evidence presented, the court admitted the statements made by 

the child victim to Mr. Joseph at trial. (N.T., Trial, 4/13/21, pp. 

53-54). 

In summary, this court found that the totality of the 

evidence presented demonstrated a sufficient indicium of 

reliability as to the disclosures made by the child victim. As noted, 

the court recognized that the child used the term “testicles”, which 

is an uncommon word for a person at the tender age of seven. 

Additionally, the child's disclosures were unprompted and

spontaneous in that the child, during play, told Mr. Joseph that he 

had a secret that he needed to share, although the secret should 

not be shared with the child’s mother. Importantly, no evidence

was produced suggestive of any motive for the child to fabricate 

and the child was quite emotional upon making such disclosure. It 

is recognized that, although there was a slight inconsistency with 

the statement made by the child to Mr. Joseph regarding the 

naming of a part of human anatomy, there was no inconsistency
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regarding the alleged abusive actions. Accordingly, any 

inconsistency was not so significant as to outweigh the other 

indicia of reliability. As such, the court finds that Appellant’s sole 

claim lacks merit.

Trial Court Opinion, 3/23/22, at 5-8. 

The certified record supports the trial court’s findings. First, with regard 

to his contention that there must be a finding by the trial court that B.T.P. was 

in danger of serious emotional distress, Appellant has misread or 

misapprehended the Tender Years Statute. The statute requires such a finding 

only where the Commonwealth seeks to excuse the child from testifying:

(a.1) Emotional distress.—In order to make a finding under 

subsection (a)(1)(ii)(B) 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 had dealt with the child in a medical 

or therapeutic setting. 

42 Pa.C.S.A. § 5985.1(a.1). Instantly, B.T.P. testified at trial; thus, there 

was no need for this finding.

At the Tender Years Statute hearing, which was held immediately prior 

to trial, Ms. Stover testified she had done approximately 3,000 evaluations of 

children pertaining to sexual abuse. N.T., Tender Years Hearing/Trial, 

4/12/21, at 6. On January 22, 2018, Ms. Stover performed a physical 
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examination on B.T.P. and completed a written report thereafter. Id. at 7. 

Ms. Stover could not remember his demeanor at that time, but she explained 

that the Child referred to his penis as his “junk.” Id. at 9. 

Ms. Melton testified she is a forensic interviewer at Lancaster County 

Children’s Alliance and has conducted about 1,700 forensic interviews. Id. at 

17-18. After explaining her methodology, Ms. Melton indicated that the copy 

of the DVD the Commonwealth had presented as Exhibit 3 fairly and accurately 

depicted her interview with B.T.P. on January 22, 2018. Id. at 25-26. On 

cross-examination, Ms. Melton explained that any knowledge of a case she 

may have prior to her interview is inapposite as it will not impact how she 

asks a child questions. Id. at 27. She also explained it is not her job to 

make credibility determinations pertaining to the child’s disclosure. Id. at 32. 

Mr. Joseph explained he has known B.T.P. since the Child was four 

weeks old and babysat for him until he was about nine years old. N.T. 4/13/21 

at 38-39. On December 1, 2017, as the two were finishing playing with Legos, 

the Child told Mr. Joseph he has a secret he needed to disclose. Id. at 39-40. 

At the outset, B.T.P., who was seven years old, told Mr. Joseph he could not 

tell “Mommy” and then proceeded to discuss his “testicles” and his “pee pee”

and how Appellant had shown him how to masturbate. Id. at 40-41. Mr. 

Joseph explained he “was kind of floored” and asked B.T.P. what had 

happened to him. In response, the Child “basically just straight up told [him] 
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that he was basically being molested without saying that word.” Id. at 41-

42. 

Mr. Joseph described B.T.P.’s demeanor during this conversation as 

follows:

So he actually had a lot of tics, like nervous tics. And he had his 

lips and his lips were all red. And that was just a very concerning 

sign to me that he just had developed these tics. But other than 

that, he was just kind of—he felt uneasy. I could tell that but I 

don’t know exactly what it was. 

Id. at 42-43. 

Mr. Joseph explained that B.T.P.’s facial tics increased during the time

he revealed the sexual abuse, but the Child did not have them anymore. Id. 

at 43. Mr. Joseph told B.T.P.’s mother about the conversation when she came 

to pick up B.T.P., and he and his father called the police. Id. at 45. It is 

noteworthy that Mr. Joseph testified regarding the Child’s statements to him 

without the need to review the police report which counsel had offered him to 

refresh his memory. 

On cross-examination, Mr. Joseph stated that although his memory 

sometimes is “a bit jumbled” due to a traumatic brain injury, he explained 

that “sometimes I’ll forget what I’m saying and I’ll remember it and I’ll just 

be on track.” Id. at 46. Mr. Joseph did not ask the Child for additional details 

other than those B.T.P. provided to him on December 1, 2017, because he 

”didn’t want to bring anything open.” Id. at 47.
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At the conclusion of the Tender Years Statute hearing, the following 

exchange ensued:

[DEFENSE COUNSEL]: As to the statement of Chase Joseph, I 

would object. I know the Court has to make a determination on 

the indicia of reliability and his traumatic brain injury. It’s a bit 

jumbled in his mind as to what exactly he said, what he said that

the child told him. It’s a little bit different than what he told both 

the forensic interviewer and the nurse practitioner.

So I don't think they met the burden for tender years 

exception.

THE COURT: Let me just prod a little bit. Certainly, the issue as to 

the -- this witness’s individualized concerns seem to be fair game 

for cross-examination at trial, but really the factors in assessment 

of indicia or reliability deals with factors independent of the 

statement of the child as to the declarant.

Those factors include spontaneity, which this appears, if 

accepted by the [c]ourt to be a spontaneous admission or 

acknowledgment of the child.

And the next factor, I will concede that it’s inconsistent from 

the other statements they heard, but there’s talk of other factors 

including mental state of declarant, use of unexpected terms, lack 

of motive to fabricate. We really haven’t heard anything about any

motive to fabricate. There was some testimony that these were 

big words for the child and there was also testimony that the child 

was rather emotional upon this disclosure.

So is -- I guess upon consideration of those factors, how 

does that alter or affect the argument that you are making?

[DEFENSE COUNSEL]: My argument would be that those factors 

are dependent upon the credibility and the accuracy of the 

witness’s statement and when the witness is stating that he has a 

traumatic brain injury and his memory is jumbled, I don’t believe 

that the [c]ourt can rely on the accuracy of it being spontaneous 

or consistent or using big terms.

That would be my argument.

THE COURT: This witness didn’t say he wasn’t able to recall. He 

admitted some cloudiness or confusion. It took him a few minutes 

to clarify his answers.

I understand your argument.
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[DEFENSE COUNSEL]: That's the credibility issue, and if the 

[c]ourt is satisfied with that then.

THE COURT: Very well.

Ms. Ponessa?

[THE PROSECUTOR]: Yes, Your Honor. Just adding on everything 

that you said, credibility, obviously, is a question for the jury. And 

also he did say that he remembered these things. And I wouldn’t 

say they are extremely inconsistent from what he said to the 

officer at the time; maybe a few things are a little different. But it 

was the same thing about him showing the masturbating and that 

[Appellant] taught him to get the sperm out of the testicles. 

Although testicles might have been a big word, again he said that 

he learned this from [Appellant] but used the word pee pee to 

describe his penis, which is terminology expected of his age.

There’s no motive to fabricate; that was completely 

spontaneous. And there’s nothing to indicate that his mental state 

-- the child’s mental state that there are any deficiencies there.

So I would request that the statement be brought in.

THE COURT: All right. Very well. Then upon consideration of the 

matter, I will note that the child is -- the [c]ourt is aware that the 

child is going to testify at the proceeding. It resolves any proffer

related claims.

Upon consideration of the appropriate factors, I will grant 

the Commonwealth’s motion to admit all three of the proffered 

statements into evidence at trial under the Tender Years 

Exception.

Id. at 51-54. 

Before making its determination, the trial court had the benefit of not 

only Mr. Joseph’s testimony, but also that of Ms. Stover and Ms. Melton. In 

rendering its decision, the court considered the inconsistences in the

terminology the Child used when speaking to these adults as well as his

emotional reactions as he related his allegations to Mr. Joseph. Furthermore, 

it noted at the Tender Years Statute hearing that Appellant could explore Mr. 
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Joseph’s brain injury and memory difficulties on cross-examination at trial; 

however, this topic was not raised at that time. Id. at 122-126. Furthermore, 

the Commonwealth called then ten-year-old B.T.P. as its first witness at trial, 

and he was subject to an extensive cross-examination. Id. at 89-116.

In setting forth his arguments in support of his issue presented on 

appeal, Appellant essentially asks this Court to reweigh Mr. Joseph’s testimony 

and make our own credibility determinations to reach a different result. This 

we cannot do. In light of the foregoing, we find the trial court did not abuse 

its discretion in finding the challenged statements demonstrated sufficient 

indicia of reliability to be admissible under 42 Pa.C.S.A. § 5985.1 of the Tender 

Years Statute.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2022