In the Int. of: C.A.H., a Minor

J-S34032-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INT. OF: C.A.H., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: COMMONWEALTH OF :

PENNSYLVANIA :

:

:

:

: No. 677 MDA 2025

Appeal from the Order Entered May 20, 2025

In the Court of Common Pleas of Lycoming County Juvenile Division at

No(s): CP-41-JV-0000010-2025

BEFORE: STABILE, J., SULLIVAN, J., and BENDER, P.J.E.

DISSENTING MEMORANDUM BY SULLIVAN, J.: FILED: JUNE 25, 2026

After a thorough review of the record and the trial court opinion in this

matter, I believe the trial court erred as a matter of law by misapplying the

factors used to evaluate the admission of statements under the Tender Years

Hearsay Act (“TYHA”), failing to address certain of the factors, and not

considering the totality of the evidence. Therefore, I respectfully dissent.

This Court has held that in deciding the admissibility of a child-victim’s

out-of-court statement to a third-party under the TYHA, a trial court should

consider, 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 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,

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255 (Pa. Super. 2003) (explaining courts are not limited to this specific set of

factors when determining whether TYHA testimony has sufficient indicia of

reliability). Under the TYHA, “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)

(emphasis added).

Here, in its brief amended opinion, the trial court misapplied certain of

the relevant factors, failed to address other factors, and did not look at the

totality of the evidence, instead focusing almost exclusively on the issue of

alleged custody disagreements between the victim’s parents (“Mother” and

“Father”).1 See Amended Trial Court Opinion, 5/22/25, at 4-6 (unnumbered).

Because the trial court did not look at the totality of the circumstances and

failed to include several relevant facts in its opinion, I include a more detailed

version of the evidence, not to engage in improper fact-finding, but to

demonstrate the trial court’s failure to assess the factors under the proper

legal standard.

Statements Made to Maternal Grandmother (“MGM”) and

Mother

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1 We note the accused juvenile is Father’s younger brother (“Uncle”) and both

reside with Father’s mother, the victim’s paternal grandmother). See N.T.,

5/15/25, at 15, 17, 21.

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Here, the record reflects MGM picked up the victim at a custody

exchange spot after the victim spent the weekend with Father. See N.T.,

5/15/25, at 15-17. As MGM and the victim were walking to MGM’s house, the

victim said she had to tell her “something.” Id. at 18. The victim then stated

“Uncle” was “kissing [my] pee bug.” Id. MGM said he was not allowed to do

that and the victim responded it was happening in his bedroom while the

others in the household were asleep. See id. On cross-examination, MGM

acknowledged she was aware of custody issues between Father and Mother.

See id. at 20-21. MGM denied having any further discussions of the abuse

with the victim. See id. at 23. She noted the victim was not told in advance

that they were going to see the police or a forensic interviewer. See id.

Mother testified that MGM called her and asked her to come over to her

house because the victim had something to tell her. See id. at 26. Mother

said when she arrived the victim was “crying and very upset.” Id. at 27. The

victim said she was asleep, as was the rest of the household, when Uncle woke

her, took her into his bedroom, licked her and made her lick him

“down there”, and then she made masturbatory hand gestures. Id. at 27-28.

The victim explained this had happened several times, but she was afraid and

Uncle had told her not to tell anybody. See id. at 28-29. Mother corroborated

MGM’s testimony that they took the victim to the police and to the forensic

interview but never questioned the victim any further about the abuse. See

id. at 29-35. On cross-examination, Mother acknowledged she was unhappy

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with the 50-50 custody split and that Father did not pay child support but

stated she had not yet filed for a modification of custody. See id. at 35-36.

Based upon this testimony, the trial court barred MGM’s and Mother’s

proposed testimony under the TYHA. In evaluating the factors, the court

concluded with respect to spontaneity, although the four-year-old victim’s

statements to MGM were “arguably spontaneous,” the statements she made

to her mother (“Mother”) were not.2 See Amended Trial Court Opinion,

5/22/25, at 5 (unnumbered). With respect to the victim’s statements to

Mother, the trial court states Mother already knew the content of the victim’s

statements to MGM and then questioned her about them. See id. at 5

(unnumbered).

The trial court also found the statements to MGM and Mother were

inconsistent, although the court did not explain what exactly it found

inconsistent between the statements to MGM and to Mother. See Amended

Trial Court Opinion, 5/22/25, at 5 (unnumbered). The trial court never

addressed the factor concerning the victim’s mental state at the time of

disclosure. See Amended Trial Court Opinion, 5/22/25, at 1-6 (unnumbered).

The trial court also did not address, in the context of MGM’s and Mother’s

testimony, whether the victim used language which would be considered age-

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2 It is all together odd that the trial court states that child’s statements to

MGM are “arguably spontaneous” and then abruptly ceases any further

analysis after that phrase and then concludes without further review that

“arguably spontaneous” fails to meet the acceptable standard.

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inappropriate for a four-year-old. See id. The trial court did not address

whether the victim had motive to lie, instead it gave heavy (almost exclusive)

weight to its conclusion that MGM and Mother had reason to lie about Uncle

abusing the victim because of the custody dispute between Mother and

Father. See id. at 5-6.

For the following reasons, I believe the trial court’s decision to bar the

testimony of MGM and Mother was error. Firstly, the trial court appears to

have interpreted the word “spontaneous” employing a layman’s or dictionary

definition, rather than a legal definition. See id. The court essentially equated

spontaneity with an automatic or sudden response. This Court has determined

spontaneity of the child/victim statement under the TYHA, “is typically

discussed in the sense of not being asked a suggestive or leading question[.],”

and rejected an assertion of “spontaneity” as akin to an excited utterance.

Commonwealth v. Newcomb, 311 A.3d 604 (Pa. Super. 2023) (unpublished

memorandum, at *5) (citing, inter alia, Stafford).3 See also

Commonwealth v. Schweikarth, 339 A.3d 391 (Pa. Super. 2025)

(unpublished memorandum, at *5-*6) (concluding victim’s statements were

spontaneous under the TYHA when made in response to her best friend’s

question if something was bothering her).

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3 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of

Superior Court filed after May 1, 2019, may be cited for persuasive value).

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Clearly, the victim’s statements to MGM were spontaneous in both

senses of the word, as the uncontested testimony shows the Victim brought

up the topic with MGM following a weekend spent with Father and Uncle. See

N.T., 5/15/25, at 15-21. As to the victim’s statements to Mother, the record

does not support the trial court’s conclusion that the victim only disclosed to

Mother in response to questioning.4 Rather, Mother’s uncontradicted

testimony established she went to MGM’s home, found the victim upset and

crying, and the victim immediately disclosed the abuse to her. See id. at 27.

It was only after this disclosure that Mother briefly questioned the victim

before calling the police. Further, Mother testified that none of her questions

were leading but sought only to clarify she understood what the victim was

saying. See id. at 27. Thus, I believe the trial court erred as a matter of law

in concluding the victim’s disclosures to Mother and MGM were not

spontaneous vis-à-vis the TYHA reliability analysis. See Commonwealth v.

Barnett, 50 A.3d 176, 184, 187 (Pa. Super. 2012) (affirming admission of

mother’s statements regarding her daughter’s disclosure of sexual abuse even

though mother specifically questioned daughter after being informed by a

relative that the defendant had abused another child); see also

Schweikarth, supra; Newcomb, supra.

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4 The testimony regarding what Mother knew when she came over to MGM’s

house is equivocal; it is not clear if she knew the victim had made an allegation

of sexual abuse against Uncle or just that something had happened during

Father’s custodial period. See N.T., 5/15/25, at 20, 22, 25-26.

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Second, the trial court erred in finding the victim’s statements were not

consistent. The trial court did not point to any inconsistency between the

statements to MGM and Mother. While her statement to Mother was slightly

more detailed, in each statement the victim named Uncle as her abuser, stated

the abuse occurred at night while everyone was sleeping, claimed Uncle

performed oral sex on her and made a hand gesture indicative of masturbating

a man. See N.T., 5/15/25, at 18, 27-28.

Although a victim’s mental state at the time of disclosure is a significant

factor in the evaluation of the reliability of a statement pursuant to the TYHA,

the trial court here did not discuss it, nor explain why it failed to consider this

important factor. See Amended Trial Court Opinion, 5/22/25, at 1-6

(unnumbered). Review of the record shows both MGM and Mother testified

the victim was upset and crying when she made the disclosures. See N.T.,

5/15/25, at 18, 27. This Court has affirmed the admission of TYHA testimony

where, inter alia, the victim reacted to seeing the defendant’s picture on

television by shouting and trying to crawl away. See Lyons, 833 A.2d at 256;

see also Barnett, 50 A.3d at 184, 187 (affirming admission of one of the

victims’ statements to her mother, where victim was uncomfortable and

awkward during the disclosure); Commonwealth v. Moore, 258 A.3d 552

(Pa. Super. 2021) (unpublished memorandum at *9-*10) (admitting

testimony under TYHA where victim was upset and crying during her

disclosure of abuse).

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The trial court likewise did not discuss the use of age-inappropriate

language with respect to the victim’s disclosure to MGM and Mother. See

Amended Trial Court Opinion, 5/22/25, at 1-6 (unnumbered). It assessed this

factor as “neutral” because of the lack of testimony offered on the subject.

See Amended Trial Court Opinion, 5/22/25, at 2, 5 (unnumbered). See id.

at 5. Again, my review of the record shows otherwise. MGM testified the

victim said Uncle “kiss[ed] her pee bug.” N.T., 5/15/25, at 18. Certainly,

“kissing” a “pee bug” is appropriate language for a four-year-old describing

oral sex. See Barnett, supra at 183-84, 187-88; Moore, supra.

In finding the victim’s statements to MGM and Mother inadmissible

because they had a motive to lie, the trial court incorrectly analyzed this

factor. The analysis of this factor focuses on whether the victim had a motive

to lie, not whether the proposed witnesses may have a motive to lie. See

Strafford, 194 A.3d at 174 (affirming trial court’s admission of TYHA

testimony where there was no indication the child victim had a motive to

fabricate); Barnett, 50 A.3d at 187-88 (rejecting claim that victim had a

motive to lie because of minor discrepancies regarding recent talks about sex

at her school and with her mother); Lyons, 833 A.2d at 255 (stating “[t]he

main consideration for determining when hearsay statements made by a child

witness are sufficiently reliable [to be admitted under the TYHA] is whether

the child declarant was particularly likely to be telling the truth when

the statement was made”) (emphasis added); see also Commonwealth

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v. Melendez, 2026 WL 1122141 (Pa. Super. Apr. 24, 2026) (unpublished

memorandum at *5-*6) (affirming trial court’s decision to admit statements

made by the victim to her mother and a forensic interviewer despite

defendant’s claim the victim had a motive to lie because she wanted to get

him in trouble). The record reveals the trial court did not discuss the victim’s

possible motive to lie, if any. The court also did not discuss testimony from

any witness that child was being coached to lie.

Regarding the issue of custody proceedings, while the fact of on-going

custody proceedings and any bias the witnesses may have is a factor for a

court to consider, it is not dispositive. See Commonwealth v. Outlaw, 329

A.3d 617 (Pa. Super. 2024) (unpublished memorandum at *3); see also

Commonwealth v. Cope, 304 A.3d 762 (Pa. Super. 2023) (unpublished

memorandum at *10) (rejecting defendant’s claim child victim had a

motive to lie because he did not disclose abuse until being directly

questioned by his mother who had pending felony charges against her, and

noting mother had been untruthful in the past).

Here, MGM briefly testified that there was on-going custody litigation.

See N.T., 5/15/25, 20-21. MGM did not express any animus against Father

or Uncle, and the trial court specifically found the victim’s disclosure to her

was spontaneous. See Amended Trial Court Opinion, 5/22/25, at 4

(unnumbered). The trial court does not point to anything except its own

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unsubstantiated suspicions to support its assertion of MGM’s bias. See id. at

5-6 (unnumbered).

As to Mother’s bias, it is plain Mother was unhappy with the 50/50

custody split and the fact she did not receive child support. See N.T., 5/15/25,

at 35-36. However, there is nothing in the record that shows there is any on-

going court action, and Mother gave uncontradicted testimony she had not

filed anything at that point. See id. Furthermore, Mother’s unhappiness with

what had been the current custody arrangement with the child’s Father, does

not explain why she would have bias against Uncle, given that a custody court

could have retained the 50/50 custody so long as Father was no longer living

with Uncle and agreed that Uncle could not have contact with the victim.

Again, given Mother’s testimony about the circumstances underlying the

victim’s disclosure, the trial court’s speculations regarding bias are insufficient

to defeat the weight of the other factors supporting the admission of the

victim’s statements. See Outlaw, supra, at *3 (affirming trial court’s

admission of TYHA testimony from a mother and a maternal grandmother

against father, despite an on-going custody dispute, noting their bias goes to

the weight of their testimony and not admissibility).

Although the list of factors set forth in Strafford are not exclusive, they

are instructive for application of the totality of the circumstances test

employed in determining the reliability and admissibility of a child victim’s

statement under the TYHA. Id. 194 A.3d at 173. The trial court here

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depended almost exclusively on MGM’s and Mother’s possible bias in a custody

issue with child’s Father (not the Uncle) and did not employ other suggested

factors or consider the factors with an eye toward the child victim.

Given the lack of analysis incorporating at least some of the reliability

standards and the focus of attention on MGM and Mother instead of the

reliability of the child victim’s statements, I believe the trial court erred in

finding the statements inadmissible under the TYHA and I would reverse that

ruling.

Statements Made to the Forensic Interviewer

Forensic interviewer Sherry Moroz (“Ms. Moroz”) testified as an expert

witness at the in camera hearing and the trial court viewed a video5 of the

interview. See N.T. 5/15/25, at 4-6; see also Amended Trial Court Opinion,

5/22/25, at 1 (unnumbered). Ms. Moroz initially began to testify about her

methods and the way she conducts an interview, however, the trial court cut

off that portion of her testimony, asking if it was “necessary.” N.T., 5/22/25,

at 8. Ms. Moroz stated the victim disclosed to her that Uncle touched her in

between her legs, wiggled his fingers up and around her genitals and again

made a hand gesture that showing he had her masturbate him. See id. at 9.

Ms. Moroz was unable to recall the victim’s mental state during the interview

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5 The video of the forensic interview was not forwarded to this Court on appeal.

I remind the Commonwealth that, as appellant, it bears the responsibility to

ensure the record contains all materials necessary to the decision of an issue.

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but said she did not recall the victim using any age-inappropriate language for

a four-year-old. See id. Ms. Moroz further averred that the statements the

victim made to her during the interview were consistent. See id. at 9-10.

The Commonwealth attempted to ask Ms. Moroz if she felt the victim’s

statements were a “genuine response” and the trial court sustained an

objection to that question. Id. at 10.

In discussing its decision that the forensic interview and Ms. Moroz’s

testimony was not admissible, the trial court co-mingled its analysis of Ms.

Moroz’s testimony with its analysis of MGM and Mother’s testimony. See id.

at 5-6 (unnumbered). Thus, it is difficult to discern the court’s exact

reasoning. See id.

As discussed above, the trial court misapplied the common definition of

the word “spontaneous” to its analysis and did not define “spontaneous” in

the legal sense. See id. The trial court does not explain why the victim’s

statements to Ms. Moroz were not spontaneous, although it earlier

emphasized that Mother and MGM drove the victim to the forensic interview,

which infers the trial court equated the passage of time with a lack of

spontaneity and/or that being driven by Mother and MGM influenced the

victim’s statements to Ms. Moroz. See id. at 2 (unnumbered).6 It then

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6 In its questioning and in its opinion, the trial court emphasized that Mother

and MGM drove the victim to the police and to the forensic interview. It is not

clear who the trial court believed would have driven a young child to these

(Footnote Continued Next Page)

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concluded statements made during a scheduled forensic interview cannot be

spontaneous. See id. at 5.

The court specifically found the victim’s statements were “significantly”

different because she described molestation, and made the identical hand

gesture, to Ms. Moroz while describing oral sex to MGM and Mother. Id. at 5.

Even though the trial court had the benefit of the video, it did not discuss the

victim’s mental state during the disclosure to Ms. Moroz. See id. at 5-6.

The trial court acknowledged that Ms. Moroz testified she did not recall

the victim using any language that would not be appropriate to her age and

maturity level yet still found that factor “neutral”. Again, the trial court had

the benefit of viewing the interview tape and does not cite any scientific,

medical, or otherwise age-inappropriate language used by the victim in the

video. The trial court also did not address why the victim had a motive to lie

to Ms. Moroz, only stressing that MGM and Mother had a motive to fabricate

allegations against the Uncle because of the custody dispute with Father. See

id. at 6.

I see no legal basis for the exclusion of Ms. Moroz’s testimony and the

forensic interview. When the legal meaning of “spontaneous” specific to the

TYHA and adopted in Pennsylvania case law is applied to the victim’s

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interviews and the court cites no legal support for the insinuation that

statements made during a forensic interview or to the police are only

admissible under the TYHA if a neutral third-party transports the child.

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statements to Ms. Moroz, they are clearly spontaneous; nothing of record

supports a finding Ms. Moroz asked any suggestive or leading questions. See

N.T., 5/15/25, at 7, 10-11 (Ms. Moroz testified non-leading questions are

asked in a forensic interview). Moreover, if the trial court’s interpretation of

“spontaneous” were applied, testimony or video involving a forensic

interviewer would never be admissible because forensic interviews occur

subsequent to disclosure of child abuse to another individual. This simply

defies common sense, and is contrary to Pennsylvania law. See Melendez,

supra (affirming admission of a forensic interview under the TYHA where

“[t]he victim was interviewed by a professional forensic interviewer in a

neutral location outside the presence of any other person and was asked non-

leading and non-suggestive questions, which resulted in lengthy and detailed

disclosures.”).

The trial court also found the victim’s statements to Ms. Moroz were not

consistent, explaining, although the four-year-old victim used masturbatory

gestures to describe the abuse to MGM, Mother, and Ms. Moroz, she told MGM

and Mother that Uncle licked her genitals and described him fingering her

genitals to Ms. Moroz. See Amended Trial Court Opinion, 5/22/25, at 5

(unnumbered). However, there is a difference between a child being

consistent in claiming abuse and a child making identical statements each

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time.7 We have long held minor inconsistencies or contradictions in

statements do not prohibit their admission under the TYHA. See Newcomb,

311 A.3d 604, at *6. The victim consistently named Uncle as her abuser,

consistently made masturbatory hand gestures to demonstrate what occurred,

and consistently stated the abuse occurred multiple times at the house while

the rest of the household was asleep. Although the victim told MGM and

Mother that Uncle had performed oral sex on her and had her perform oral

sex on him, and showed a hand gesture indicating he made her masturbate

him, and told Ms. Moroz about an incident where Uncle touched her vaginal

area and made the identical hand gesture, there is no reason to conclude on

this record that Uncle had not committed all those types of abuse on different

occasions. Thus, I would conclude the trial court erred in finding the victim

made inconsistent statements. See id. (affirming trial court finding of

consistency in repetition, where child disclosed separate instances of abuse

concerning different acts by the same abuser and in one instance contradicted

statements she had made in an earlier interview).

To the extent the trial court weighed a motive to fabricate to bar Ms.

Moroz’s testimony about the victim’s disclosures to her, this is plain error.

There is no indication Ms. Moroz had any involvement in, or knowledge of, any

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7 In fact, if a young child made identical statements each time in describing

abuse, a trained interviewer would be likely to suspect the child was being

coached. Unlike a mother or grandmother, a forensic interviewer such as Ms.

Moroz is trained to follow up on details and descriptions children give.

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custody proceedings, or had any relationship with MGM or Mother that would

show bias. Moreover, Ms. Moroz is a trained forensic interviewer, who testified

as an expert, undoubtedly taught to spot “coaching” of a child.

For the reasons discussed above, I believe the trial court committed

errors of law in its evaluation of the TYHA factors and abused its discretion by

refusing to admit the testimony of Ms. Moroz. I would reverse the trial court’s

order and direct the trial court to admit the child’s statements to MGM, Mother

and Ms. Moroz pursuant to the TYHA. Accordingly, I respectfully dissent.

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