Commonwealth v. McCollin

1

COMMONWEALTH OF PENNSYLVANIA v. ANDREW J. MCCOLLIN Appellant COMMONWEALTH OF PENNSYLVANIA v. ANDREW J. MCCOLLIN Appellant COMMONWEALTH OF PENNSYLVANIA v. ANDREW J MCCOLLIN Appellant

Nos. 1198 MDA 2022, 1199 MDA 2022, 1200 MDA 2022

No. J-S24022-23

Superior Court of Pennsylvania

November 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered March 29, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002971-2020, CP-06-CR-0004595-2019 CP-06-CR-0004596-2019

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

LAZARUS, J.

Andrew J. McCollin appeals from the judgments of sentence, entered in the Court of Common Pleas in Berks County, after a jury convicted him in a consolidated trial^[1] of one count each of aggravated indecent assault of a child^[2]and aggravated indecent assault,^[3] and three counts each of endangering the welfare of children (EWOC),^[4] institutional sexual assault in child care,^[5]indecent assault,^[6] and corruption of minors.^[7] After review, we affirm.

This case stems from sexual assault allegations made by three preschool-aged boys (collectively, Children) against McCollin, the assistant director of a daycare center that the boys attended. The daycare center Bright Horizons Daycare Center Creative Learning Center (Bright Horizons), is located in in Bern Township. McCollin served as the assistant director of Bright Horizons in 2018 and 2019. During that time, McCollin would often supervise, alone, naptime in classrooms so that the teachers could take breaks.

Beginning in August of 2019, three children disclosed that McCollin had touched them inappropriately. N.G. (born 1/2015),^[8] was the first to disclose McCollin's assault and testified that, when he was four years old, McCollin touched his penis under his clothes in a back-and-forth manner, as well as his butt, a "couple of times," during naptime. N.T. Jury Trial, 9/21/21, at 87-90. C.C. (born 7/2014),^[9] was the second child to disclose inappropriate touching by McCollin, and testified that when he was four years old, McCollin touched his penis under his clothes, on more than one occasion, during naptime. Id., 9/22/21, at 227. N.H. (born 12/2014),^[10] was the third child to disclose and he testified that when he attended Bright Horizons, McCollin rubbed his backside and touched his penis both over and under his clothes, one time, during naptime. Id. at 150-54, 160.

On August 23, 2019, N.G. disclosed the sexual assault incidents to his mother, B.G., while the family was shopping for back-to-school items. Id., 9/21/21, at 93. N.G. informed B.G. and her husband that "Andrew [McCollin] touched my peener" during naptime. Id. Upon returning home, B.G. asked N.G. to tell her again what happened at school that day; N.G. again reported that "Mr. Andrew touched [my] peener" during naptime. Id. at 94.

The same day N.G. told his mother, B.G. called Bright Horizon's school director, Erin Harner. Id. at 90, 93-94. Harner then contacted her supervisor, Bright Horizon's regional manager, Kaitlin Martin. On August 24, 2019, Martin informed McCollin that there was an incident and that he was being placed on administrative leave. Id. at 77-78; id., 9/22/21, at 216-18. K.S., N.G.'s classroom teacher, testified that on August 23, 2019, she had been the only teacher in the classroom. During naptime, she moved N.G. to a different cot away from most of the other children because he was talking. Id., 9/22/21, at 137-38. K.S. then left the room for approximately thirty minutes while McCollin supervised the classroom naptime. Id. at 138-39. When K.S. returned to the classroom, she observed McCollin standing near N.G.'s cot. Id. at 139-40.

Following his disclosure, N.G. was interviewed by staff at the Children's Alliance Center of Berks County (CAC), a service of the Berks County District Attorney's office that interviews and supports child victims of sexual abuse.^[11]Id., 9/21/21, at 104-07. A report of N.G.'s interview was provided to law enforcement and Corporal Detective Heather Calabria of the Berks County District Attorney's Office contacted McCollin to ask if he would be willing to speak with her. McCollin agreed and met with Detective Calabria on August 28, 2019. During the interview, McCollin initially denied the allegations, but later admitted to touching N.G.'s penis underneath his clothes. McCollin also admitted to inappropriately touching C.C. Id., 9/23/21, at 289-94. Based on McCollin's admission regarding a second victim, law enforcement and Berks County Children and Youth Services (CYS) reached out to C.C.'s family.^[12] See id., 9/22/21, at 237-38, 264.

CAC staff interviewed C.C. on or about September 3, 2019. Initially, C.C. did not disclose any sexual abuse. Id. at 238, 266. However, when C.C. and his parents were leaving the CAC, C.C. asked why no one asked him questions about McCollin. C.C. then revealed to his parents that McCollin touched his penis and anally penetrated him with his fingers. Id. at 238-39, 254. C.C.'s mother, W.C., testified that while the family was in the parking lot following C.C.'s interview with the CAC, he informed her and her husband that McCollin had "stuck his finger up [C.C.'s] butt" and that "it hurt." Id. at 239. C.C. stated to his parents that this happened "every naptime." Id. C.C.'s father testified that C.C. told him that he "was strong" and "didn't cry." Id. at 254. At that point, C.C.'s father told him that he did not have to be strong and that he should "tell [his father] honestly what happened" when he was ready. Id.

C.C. was interviewed a second time at the CAC, this time by CYS caseworker Hack, to whom he repeated the same information he told his parents. Id. at 263-65, 267. Additionally, Renee Riddle, M.D., examined all three minor victims, on behalf of the CAC, on separate occasions in September or October 2019. Id. at 247-48. When C.C. was alone with Dr. Riddle, he disclosed that "Mr. Andrew" was "touching his penis and butt" and told Dr. Riddle that he experienced some pain and that the touching happened multiple times during naptime. Id. at 249. C.C. also testified that one time in particular, McCollin "stuck his finger in his butt" and C.C. saw "poop" on McCollin's finger when he removed it. Id. at 227-29.

On August 30, 2019, Bright Horizons informed parents about the allegations against McCollin. Following that relay of information, B.H. spoke to her son, the third victim, N.H., to determine whether anything occurred between N.H. and McCollin. See id. at 169. On September 2, 2019, while N.H.'s mother was putting him to bed, N.H. asked his mother to rub his back. When B.H. asked N.H. if anyone else rubbed his back, N.H. told her that McCollin would rub his back. Id. at 162-64. N.H. then told B.H, that, during naptime, McCollin would rub N.H.'s back under his shirt, rub his behind over his shorts "a lot," and "poked" his penis over his underwear. N.H. informed B.H. that McCollin only touched his penis twice. Id. at 164-67. B.H. testified that, after her initial conversation with N.H. about "Mr. Andrew," she spoke to him several more times about it, either when N.H. brought it up unprompted or when she initiated further conversation about the touching. Id. at 168.

Following this disclosure, B.H. brought N.H. to law enforcement for a forensic interview. At the first interview in October of 2019, N.H. did not disclose the assault to law enforcement. Id. at 185. Sometime in late fall of 2019, N.H. disclosed the assaults to his teacher, T.L. Id. at 258-60. T.L. was reading a book to the class and teaching vocabulary words, including the word "principal." T.L. asked the students if they knew the principal at Bright Horizons, at which point the children identified "Ms. Erin," the director of Bright Horizons, and "Mr. Andrew," identified by T.L. as McCollin. N.H. then announced to the entire class that McCollin touched his penis and his behind. T.L. reported this disclosure and N.H. was interviewed by law enforcement a second time in July 2020. Id. at 185-86, 259-62. During this second interview, N.H. revealed that McCollin touched him on several occasions during naptime, touching his penis under his clothes, and rubbing his back and behind. Id. at 186-87. N.H. also identified McCollin in a picture provided to him by law enforcement. Id. at 188.

On May 25, 2021, prior to trial, the trial court held a hearing pursuant to the Tender Years Act, 42 Pa.C.S.A. § 5985.1 (the Act),^[13] in response to several motions filed by the Commonwealth. For each of the three dockets, the Commonwealth filed notices of its intent to introduce out-of-court statements made by the child victim. Subsequently, the Commonwealth filed a motion under each docket requesting that the testimony of the three minor victims be by closed circuit television pursuant to section 5985. See 42 Pa.C.S.A. § 5985. At the hearing, the Commonwealth presented each witness it intended to call to testify pursuant to the Act. On May 27, 2021, following the hearing, the trial court ordered that C.C.'s and N.H.'s testimony be made pursuant to a contemporaneous alternative method, after concluding that testifying in the defendant's presence would cause the minor victims to suffer serious emotional distress and, thus, would impair their ability to reasonably communicate. See Trial Court Order, 5/27/21. The trial court order also allowed for the presentation of Tender Years testimony in each case, permitting testimony of out of court statements made by Children to specific persons. See Trial Court Order (II), 5/27/21. See also Trial Court Opinion, 12/16/22, at 6, 9.

On September 23, 2021, at the conclusion of a three-day jury...