J-S06013-23
2024 PA Super 105
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA ROBERT COPENHAVER :
:
Appellant : No. 854 MDA 2022
Appeal from the Judgment of Sentence Entered April 19, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001075-2021
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY STABILE, J.: FILED: MAY 22, 2024
Appellant, Joshua Robert Copenhaver, appeals from his judgment of
sentence of fifteen to thirty years’ imprisonment for multiple sexual offenses
against his daughters, K.G. and C.C. Counsel for Appellant filed a brief and
an application to withdraw pursuant to Anders v. California, 386 U.S. 738
(1969), and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009). In an
unpublished decision on July 17, 2023, we held that Appellant’s first issue, a
challenge to the sufficiency of the evidence, was frivolous. However, we found
Appellant’s second issue—whether the court properly admitted K.G.’s out-of-
court statement about what C.C. told her under the “tender years” exception
to the hearsay rule embodied in 42 Pa.C.S.A. § 5985.1—was non-frivolous.
Accordingly, we remanded to the trial court for further proceedings on the
tender years issue and denied counsel’s application to withdraw.
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* Former Justice specially assigned to the Superior Court.
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On September 19, 2023, the trial court filed a supplemental opinion that
K.G.’s out-of-court statement was admissible under Section 5985.1. Having
reviewed the record, the trial court’s supplemental opinion, and Appellant’s
brief,1 we conclude that the trial court abused its discretion by admitting
several portions of K.G.’s statement into evidence. Nevertheless, we conclude
that this error was harmless, and therefore, affirm Appellant’s judgment of
sentence.
The criminal information against Appellant alleged that between January
27, 2019 and January 7, 2021, he committed rape of a child, solicitation of
rape of a child, involuntary deviate sexual intercourse (“IDSI”) with a minor,
production of child pornography, solicitation of production of child
pornography, depicting sex acts on a computer, solicitation to depict sex acts
on a computer, indecent assault, corruption of minors and serving liquor or
malt or brewed beverages to minors. Prior to trial, the Commonwealth filed a
motion to admit statements that K.G. and C.C. made on February 11, 2021,
during interviews at the York County Child Advocacy Center (“CAC”). K.G.
and C.C. were eleven and twelve years old, respectively, at the time of these
statements. A CAC forensic interviewer, Lauren Carter, questioned K.G. and
C.C. separately, and both interviews were recorded on closed circuit television.
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1 While we do not condone the late filing of Appellant’s brief, we will accept it
for filing, since we do not find that Appellant’s tardiness has impeded appellate
review, and the Commonwealth has not claimed prejudice. In addition, we do
not condone the fact that the Commonwealth’s responsive brief was untimely
filed without requesting any extension from this Court, and at that, almost
two months after Appellant’s brief.
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The Commonwealth asserted that these statements were admissible under
Section 5985.1, the “tender years” exception to the hearsay rule.
On May 14, 2021, the court convened an evidentiary hearing on the
tender years issue. The CAC interviewer was the lone witness. After viewing
a videotape of both interviews, the court admitted the interviewer’s reports of
the interviews into evidence. K.G. told the interviewer that C.C. said the
following to K.G.: (1) Appellant and C.C. went down to the basement, where
Appellant told C.C. to undress; (2) Appellant bribed C.C. to show him her
body; (3) C.C. told her stepmother about Appellant’s acts, but her stepmother
did not believe her. Appellant contended that K.G.’s statement to the
interviewer about what C.C. told K.G. constituted inadmissible hearsay. N.T.,
5/14/21, at 21-23. The Commonwealth responded that K.G.’s statements
were admissible under the tender years exception in Section 5895.1. Id. at
25. The court reasoned that the contents of K.G.’s statement were reliable,
and that her entire videotaped statement was admissible if she were called to
testify during trial. Id. at 26-28. The court also ruled that C.C.’s videotaped
interview was admissible. Id. at 28.
In September 2021, Appellant proceeded to a jury trial in which C.C.
and K.G. testified about Appellant’s offenses. The jury also saw K.G.’s and
C.C.’s videotaped statements to the CAC interviewer. Appellant’s sister-in-
law testified that Appellant became suicidal as a result of the criminal
investigation into his offenses. She testified that Appellant told her that he
purchased a shotgun to take his life or would drive his car off the road.
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Similarly, Appellant’s father-in-law testified that Appellant told him that he
would kill himself. After Appellant’s arrest, his father-in-law discovered a
loaded shotgun under a seat in Appellant’s car. A York County detective
testified that Appellant admitted taking nude photographs of his daughters
but then deleting them from his phone. Appellant also gave a statement to a
detective, Commonwealth Exhibit 16, implying that he had sexual contact with
one of his daughters. At the conclusion of trial, the jury found Appellant guilty
of all charges.
Appellant’s February 6, 2024, brief raises a single issue, “Whether the
trial court erred in granting the Commonwealth’s motion to admit hearsay
through the Tender Years exception where there were questions regarding
double hearsay and relevance?”
Section 5985.1 of our Judicial Code, referred to as the “tender years”
exception to the hearsay rule, provides as follows:
§ 5985.1. Admissibility of certain statements
(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 122
years of age or younger, describing any of the offenses
enumerated in paragraph (2) [including, inter alia, 18
Pa.C.S.A. § 6312(b)], not otherwise admissible by statute
or rule of evidence, is admissible in evidence in any criminal
or civil proceeding if:
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2 We note that in 2021, our Legislature amended subsection (a) of this statute
to increase the age limit from 12 to 16 years of age or younger. See Act of
June 30, 2021, P.L. 172, No. 29, effective in 60 days.
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(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). It is undisputed that Section 5985.1 could be
applied to the hearsay statements of K.G. and C.C., as K.G. qualified as a child
witness and C.C. qualified as a child victim. Statements admitted under this
section are substantive evidence against the defendant. Commonwealth v.
Bond, 190 A.3d 664, 669 n.3 (Pa. Super. 2018). We review the trial court’s
decision to admit evidence under the tender years statute for abuse of
discretion. Commonwealth v. Curley,
910 A.2d 692, 697 (Pa. Super. 2006).
In its supplemental 1925(a) opinion, the trial court concluded that it
properly admitted K.G.’s videotaped interview with the CAC interviewer under
Section 5985.1. Appellant challenges three statements within this interview:
(1) K.G.’s statement to the interviewer that C.C. told K.G. that Appellant
took C.C. down to the basement and told C.C. to undress;
(2) K.G.’s statement to the interviewer that C.C. told K.G. that Appellant
bribed C.C. to show him her body; and
(3) K.G.’s statement to the interviewer that C.C. told K.G. that C.C.
reported Appellant’s conduct to her mother.
Examination of each of these three statements reveals that all contain multiple
layers of hearsay. In addition to K.G.’s statement having to satisfy Section
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5985.1’s exception to the hearsay rule, every other layer of hearsay within
K.G.’s statement had to likewise satisfy an exception to the rule against
hearsay to be admitted as a part of K.G.’s statement. See Commonwealth
v. Laich, 777 A.2d 1057, 1060 (Pa. 2001); Pa.R.E. 805 (hearsay within
hearsay is not excluded if each part of a combined statement conforms with
an exception to the rule); Commonwealth v. Savage,
157 A.3d 519, 524-
25 (Pa. Super. 2017) (where business records that otherwise would be
admissible under exception to hearsay rule contains hearsay, it is double
hearsay, and underlying hearsay must also qualify as a hearsay exception for
a court to admit that portion of the business record into evidence).
Statement (1) has three layers of hearsay: (a) K.G.’s statement to the
interviewer that (b) C.C. told K.G. that Appellant took C.C. down to the
basement, and (c) Appellant told C.C. to undress. In finding statement (1)
admissible, the trial court only analyzed the first layer of hearsay, K.G.’s
statement to the interviewer under Section 5985.1. The court determined
that K.G. was eleven years old and appeared reliable during her videotaped
statement. As a result, the court ruled that statement (1) was admissible in
its entirety under Section 5985.1. N.T., 5/14/21, at 26-28 (tender years
hearing). The court failed, however, to address whether the other layers of
hearsay in statement (1) satisfied any hearsay exception. This oversight was
significant because the second layer of hearsay, C.C.’s statement to K.G.—the
source of K.G.’s statements to the CAC interviewer—was not shown to be
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admissible under any other exception to the hearsay rule. Nor did C.C.’s
statement to K.G. satisfy Section 5985.1. To be sure, this statement satisfied
some of the elements in Section 5985.1, namely that (1) C.C. was a victim,
(2) C.C. was less than twelve years old at the time of this statement, (3) C.C.
testified at trial, and (4) C.C.’s statement was relevant to the charged offense
of sexual abuse of children.3 On the other hand, the statement did not satisfy
the element of reliability due to the court’s failure to assess whether the “time,
content and circumstances” of C.C.’s statement to K.G. “provide[d] sufficient
indicia of reliability” to be admissible. 42 Pa.C.S.A. § 5985.1(a)(1). While the
court found C.C.’s videotaped statement to the CAC interviewer reliable and
admissible, Supplemental Opinion at 4, it made no similar findings as to the
statements by C.C. to K.G. that are embedded within K.G.’s videotaped
____________________________________________
3 Sexual abuse of children is a crime under 18 Pa.C.S.A. § 6312(b), which
provides, “Any person who causes or knowingly permits a child under the age
of 18 years to engage in a prohibited sexual act or in the simulation of such
act commits an offense if such person knows, has reason to know or intends
that such act may be photographed . . .” A “prohibited sexual act” includes
“lewd exhibition of the genitals or nudity if such nudity is depicted for the
purpose of sexual stimulation or gratification of any person who might view
such depiction.” The information against Appellant charged him with violating
Section 6312(b) by “causing . . . a child under the age of 18 years, namely,
C.C., to engage in a prohibited sexual act or in the simulation of such act,
namely, posing in various positions while exposing her vagina and breasts,
and knew, had reason to know or intended that such act may be photographed
. . .” Information, 4/7/21, at 1. C.C.’s statement to K.G. was relevant to
demonstrate that Appellant induced C.C. to engage in a “prohibited sexual
act,” specifically lude exhibition of her genitals for the purpose of Appellant’s
sexual stimulation or gratification, by taking C.C. to the basement and
directing her to undress.
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statement. Because this layer of hearsay was inadmissible, and because this
layer was the source of the first layer of hearsay (K.G.’s statement to the CAC
interviewer), we conclude that the trial court abused its discretion by
permitting statement (1) into evidence.4 Laich, Savage, supra.
For the same reason, statement (2) was inadmissible. Statement (2)
has two layers of hearsay; K.G.’s videotaped statement to the CAC interviewer
and C.C.’s statement to K.G. that Appellant bribed C.C. to show him her body.
The court only analyzed the admissibility of the first layer of hearsay, K.G.’s
statement to the interviewer, but failed to assess the admissibility of the
second layer, C.C.’s statement to K.G. and no demonstration was made that
the statement otherwise qualified under any other hearsay exception. Nor was
it admissible under Section 5985.1 due to the court’s failure to assess the
reliability of C.C.’s statements to K.G. that are embedded within K.G.’s
videotaped statement.
Statement (3) also is inadmissible. It too has two levels of hearsay: (a)
K.G.’s statement to the interviewer that (b) C.C. told K.G. that C.C. reported
Appellant’s conduct to her mother. The court analyzed the admissibility of the
first layer of hearsay, K.G.’s statement to the interviewer, but failed to assess
____________________________________________
4 For the sake of completeness, we note that the third layer of hearsay in
Statement (1), Appellant’s instruction for C.C. to undress, was admissible
under the hearsay exception in Pa.R.E. 803(25) as a statement of a party
opponent. Even so, the inadmissibility of the second layer of hearsay made it
impossible to admit the third layer into evidence.
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the admissibility of the second layer, C.C.’s statement to K.G. The second
layer failed the test for admissibility for the same reasons as statements (1)
and (2).
Although the court abused its discretion by admitting into evidence the
challenged statements within portions of K.G.’s videotaped interview, we
agree that any purported error was harmless.
The harmless error doctrine “reflects the reality that the accused is
entitled to a fair trial, not a perfect trial.” Commonwealth v. Wilson, 286
A.3d 1288, 1300 (Pa. Super. 2022). Further, harmless error exists if the
record demonstrates, inter alia, that “the erroneously admitted evidence was
merely cumulative of other untainted evidence which was substantially similar
to the erroneously admitted evidence,” or that “the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error could not
have contributed to the verdict.”
Id. An error “will be deemed harmless
where the appellate court concludes beyond a reasonable doubt that the error
could not have contributed to the verdict.”
Id. at 1300-01. This doctrine
“recognizes the principle that the central purpose of a criminal trial is to decide
the factual question of the defendant’s guilt or innocence and promotes public
respect for the criminal process by focusing on the underlying fairness of the
trial rather than on the virtually inevitable presence of immaterial error.”
Id.
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at 1301. Moreover, this doctrine functions as a substantive principle of law,
and appellate courts may apply it sua sponte. Id.
Appellant argues in his February 6, 2024 brief that K.G.’s videotaped
statements were prejudicial because they could have swayed the jury to give
more weight to C.C.’s statements on the witness stand. Appellant’s Brief at
15-16. We disagree. Statements (1) and (2) were cumulative of and
substantially similar to C.C.’s untainted testimony during trial that she told
K.G. about Appellant’s acts, Appellant made her take her clothes off, Appellant
photographed her in the nude, and Appellant promised to buy her things if
she complied. N.T., 9/13/21, at 91-92, 99, 102. In addition, Statements (1)
and (2) were substantially similar to K.G.’s untainted testimony during trial
that K.G. saw Appellant direct C.C. to remove her clothes, and C.C. told K.G.
that Appellant touched C.C. in inappropriate places. Id. at 121-123.
Statement (3) is cumulative of and substantially similar to other untainted
testimony by C.C. during trial that she told her mother about Appellant’s
conduct. Id. at 109.
Other evidence unrelated to K.G.’s statements provided overwhelming
evidence of Appellant’s guilt. Appellant’s sister-in-law and father-in-law both
testified that Appellant threatened to kill himself as a result of the criminal
investigation, and Appellant’s father-in-law discovered a loaded shotgun in
Appellant’s car. A detective testified that Appellant admitted taking nude
photographs of his daughters but then deleting them from his phone.
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Appellant also gave a statement to a detective implying that he had sexual
contact with one of his daughters. Given the overwhelming evidence that
established Appellant’s guilt, irrespective of the challenged statements in
K.G.’s videotaped interview, we conclude that beyond a reasonable doubt that
any error committed in admitting the challenged statements could not have
contributed to the verdict.
For these reasons, Appellant’s tender years issue does not entitle him
to relief. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed. Application for second extension of
time within which to file Appellant’s brief granted.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 5/22/2024
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