Description: Bedford, Pennsylvania criminal defense lawyer represented the Defendant charged with indecent assault - complainant less than thirteen years of age, indecent assault - complainant less than sixteen years of age, and corruption of minors.

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On December 1, 2021, the Commonwealth charged Schweikarth with numerous sex crimes. On September 12, 2023, the Commonwealth filed notice of its intent to present hearsay evidence under the "tender years" exception to the rule against hearsay. The Commonwealth sought to introduce the testimony of O.D., E.P., and A.O., each of whom were minors and friends of B.T.'s that she had confided in regarding Schweikarth. See Notice of Intent to Proceed Pursuant to 42 Pa.C.S. § 5985.1, On October 17, 2023, the day before trial, the court held an in camera hearing to determine the admissibility of this testimony. At the conclusion of the hearing, the trial court ruled that E.P.'s testimony was admissible under the tender years exception, but that O.D.'s and A.O.'s testimony was not admissible.

Schweikarth's trial commenced on October 18, 2023. During trial, after hearing the testimony of Ms. Schweikarth, the trial court reversed its ruling as to the admissibility of O.D.'s testimony and decided that it would permit her testimony under the tender years exception. N.T., 10/18/2023, at 10809. O.D. testified at trial the following day. See N.T., 10/19/2023, at 4-13.

On October 20, 2023, the jury found defendant guilty of the aboveidentified crimes. On January 16, 2024, the trial court sentenced Schweikarth to an aggregate term of seven to fourteen years in prison. On January 24, 2024, Schweikarth filed a motion for reconsideration of sentence, which the trial court denied on January 29, 2024.

The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error.

The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not 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.

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Commonwealth v. Lamont, 308 A.3d 304, 309 (Pa. Super. 2024) (citation omitted).

"All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible." Pa.R.E. 402. Evidence is relevant "if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact." Commonwealth v. Gross, 241 A.3d 413, 418 (Pa. Super. 2020) (citation omitted). Hearsay is a statement "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Pa.R.E. 801(c). "Hearsay is not admissible except as provided by [the Pennsylvania Rules of Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or by statute." Pa.R.E. 802. One such exception is the tender years provision. 42 Pa.C.S. § 5985.1; see also Commonwealth v. Wilson, 286 A.3d 1288, 1295 (Pa. Super. 2022) (noting that the tender years exception "creates an exception to the general rule against hearsay for a statement made by a child"). "Statements admitted under this section are substantive evidence against the defendant." Commonwealth v. Copenhaver, 316 A.3d 1020, 1023 (Pa. Super. 2024).

The tender years exception states, in relevant part:

(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

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(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. § 5985.1(a)(1).[4]

As B.T. testified at trial, the critical elements for the admissibility of hearsay testimony under the tender years exception is (1) the testimony is relevant and (2) there is "sufficient indicia of reliability" based upon the time, content, and circumstances of the statement. Id. This Court has held that "indicia of reliability" for purposes of this exception includes, but is not limited to, "the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age, and the lack of a motive to fabricate." Commonwealth v. Strafford, 194 A.3d 168, 173 (Pa. Super. 2018) (quotation marks, citation, and brackets omitted); see also Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa. Super. 2003) (explaining that courts are not limited to this specific set of factors when determining whether tender years testimony has sufficient indicia of
reliability). Under the tender years exception, "a trial court must consider the totality of the circumstances when determining whether a child's out-of-court statement is trustworthy." Interest of D.C., 263 A.3d 326, 335 (Pa. Super. 2021).


Case Analysis
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Legal issue Did the trial court err in admitting testimony under the tender years hearsay exception and in the discretionary aspects of sentencing?

CRIMINAL LAW. ADMISSIBILITY OF HEARSAY. The case involves an appeal challenging the trial court's admission of testimony under the tender years exception to the rule against hearsay, where the trial court had to assess whether the children's out-of-court statements bore sufficient indicia of reliability.

CRIMINAL LAW. SENTENCING DISCRETION. The appeal also addressed whether the trial court abused its discretion by considering the defendant's inappropriate relationship with a minor in determining an aggravated sentence, raising questions about the reliance on impermissible factors during sentencing.

Key Phrases Indecent assault complainant. Corruption of minors. Tender years exception. Discretionary aspects of sentence. Aggravated-range sentence.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: