Commonwealth v. Newcomb

1

COMMONWEALTH OF PENNSYLVANIA v. JASON DALE NEWCOMB Appellant COMMONWEALTH OF PENNSYLVANIA v. JASON DALE NEWCOMB Appellant

Nos. 798 MDA 2022, 799 MDA 2022

No. J-S12019-23

Superior Court of Pennsylvania

December 21, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered April 1, 2022 e Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001871-2020, CP-36-CR-0001451-2020

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J. ^[*]

MEMORANDUM

McCAFFERY, J.

Jason Dale Newcomb (Appellant) appeals from his jury trial convictions for a series of rapes and other sexual crimes committed against his biological daughter, J.N. Appellant contends (1) that the trial court erred in allowing two witnesses to testify to statements made by J.N. implicating Appellant; (2) that the trial court erred in denying his request for production of privileged material by J.N.'s psychotherapist; and (3) that the trial court illegally imposed "no contact" provisions as part of his sentence. The Commonwealth concedes the third issue. We agree and strike that aspect of Appellant's sentence. In all other respects, we affirm.

The victim, J.N., is the biological daughter of Appellant and turned 18 the weekend before trial. She informed the jury that Appellant began fondling her vagina and inserting his fingers when she was 7, usually when the two were on the couch watching television. Around age 8 or 9, Appellant told J.N. to come to the living room and forced her to watch pornography, telling J.N. that "because the woman in the video was liking it that I should." N.T., 11/16/23, at 186. J.N. stated that when she was about 9 years old Appellant forced her to engage in oral and vaginal sex. Appellant would fondle her "at least once a week," but "[h]e couldn't really get me alone to rape me unless my mom was at work or she was just gone in general." Id. at 192. When J.N. started fifth grade, her mother started working more hours and Appellant raped her two to three times a week. J.N. also testified that Appellant forced her to undress and took nude photographs. The abuse ended in 2016 when Appellant and J.N.'s mother separated.

J.N. began experiencing anxiety and depression, and her schoolwork suffered. A school employee referred her to Olivia Houston, a prevention specialist employed by J.N.'s school. Houston noticed that J.N. exhibited poor hygiene, showed signs of depression, and was uncomfortable around males.

Houston arranged a meeting with the Child Guidance Resource Center. J.N.'s mother escorted J.N. to the appointment. During the intake process, an employee asked J.N. if she had been sexually abused. J.N. said yes, which marked the first time she had disclosed the abuse. J.N.'s mother, who had accompanied her to the appointment, was not in the room during the intake process.

J.N.'s disclosure triggered mandatory reporting obligations to ChildLine, the Commonwealth's Department of Human Services program for child abuse investigations. The matter ultimately made its way to Detective Aaron Harnish, employed by the Lancaster City Bureau of Police, who arranged a forensic interview at Children's Alliance on March 8, 2018, between J.N. and James Pennebaker.^[1] Detective Harnish observed the interview and characterized J.N. as being "extremely uncomfortable talking about what [Appellant] did to her." N.T., 11/18/21, at 476. He, J.N., and J.N.'s mother decided that further therapy would be appropriate.

J.N. then sat for a second forensic interview with Karen Melton on April 19, 2018. Melton testified that she did not watch the Pennebaker interview prior to her interview with J.N., explaining that "we don't want to do what's called duplicative interviews." N.T., 11/17/21, at 372. Melton used an anatomical diagram for J.N. to point to due to her continuing difficulty with saying certain words. During Melton's testimony, the interview with Pennebaker was played to the jury. Melton agreed that J.N. was "having difficulty vocalizing what was happening to her" and that Pennebaker had J.N. write things on paper. A copy of a paper was read to the jury through Melton; J.N. wrote that she "was about 7 and I didn't understand what was going on but he threatened me and said he'd hurt me if I told anybody." Id. at 367. J.N. also wrote, "He would touch me inappropriately when my mom wasn't around." Id. at 368. She further wrote that Appellant "started raping me when I was about [ten or 11 years old]." Id.

Following these interviews, the investigators decided that J.N. "still wasn't as comfortable as what would be required to go into court" in terms of discussing Appellant's abuse and decided in August of 2018 to designate the case inactive pending further therapy. N.T., 11/18/21, at 480.

J.N. began treatment with Jessica Ventura, a psychotherapist, in August of 2019, who had nine sessions with J.N., occurring approximately once a week through January 10, 2020. During those sessions, J.N. "had significant difficulty verbalizing her experiences of abuse." N.T., 11/18/21, at 388. Ventura had J.N. write down her experiences and then would discuss whatever J.N. wrote, "depending] on how she was feeling." Id. at 389. Ventura identified multiple "trigger words . . . that she was incapable of saying or writing[.]" Id. at 392. Those "trigger words were breast, penis, vagina, rape, oral, and intercourse." Id. Ventura discussed substitution words, which were "boobs, titties, dick, pee pee, thingy, cooch, coochie, force, tears, vomit, disgust, gross, texture, bad, inappropriate, danger, discomfort, and doing it." Id. Ventura testified to various specific incidents of abuse that J.N. wrote down and discussed during these sessions.

On January 2, 2020, Appellant was charged with 13 counts, later reduced to 11 in the criminal information filed at docket CP-36-CR-0001451-2020.^[2] Later, Appellant was charged with four crimes following the execution of a search warrant on a laptop owned by Appellant. A digital search revealed 278 images of child pornography and internet searches for, among other terms, "father/daughter incest." Id. at 435. 48 of these photographs showed J.N. in the shower. Appellant was then charged at docket CP-36-CR-0001871-2020 with four crimes.^[3] Both dockets were tried together, and Appellant was found guilty of all charges. Appellant was sentenced on April 1, 2022, to an aggregate term of 30 to 80 years' incarceration and he timely appealed to this Court.^[4] Appellant complied with the trial court's order to file a concise statement of matters complained of on appeal, and the court authored an opinion addressing Appellant's claims. Appellant raises the following issues on appeal.

I. Did the trial court err in ruling that the testimony of Jessica Ventura was admissible pursuant to 42 Pa.C.S. § 5985.1, where her testimony did not satisfy the requirements of Section 5985.1, and did the court further err in ruling that defense counsel was not entitled to receive records regarding Ms. Ventura's treatment of J.N.?

II. Did the trial court err in ruling that the testimony of Karen Melton, and the videotape of Ms. Melton's April 19, 2018[,] interview with J.N. was admissible pursuant to 42 Pa.C.S. § 5985.1, where her testimony did not satisfy the requirements of Section 5985.1?

III. Did the trial court err in imposing a condition of no contact with the victim or the victim's family, where the court had no jurisdiction to impose this condition, as the Pennsylvania Department of Corrections has exclusive authority over state prison conditions, and the Pennsylvania Department of Probation and Parole has exclusive authority over state parole conditions?

Appellant's Brief at 8-9.

Appellant's first and second issues both challenge the admissibility of hearsay evidence introduced pursuant to the Tender Years Hearsay Act (TYHA). See 42 Pa.C.S. § 5985.1. The two arguments in support are largely identical, and the trial court addressed them together. However, Appellant's first issue includes a subclaim regarding the disclosure of J.N.'s mental health records. We address the TYHA issues together for ease of discussion, and separately address Appellant's claim that he was entitled to J.N.'s mental health records.

The TYHA sets forth the following requirements.

(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. § 5985.1.

The trial court held a pre-trial hearing on the admissibility of these statements. Ventura testified that J.N. was referred to her and knew that the referral involved sexual abuse by Appellant. However, Ventura did not know any specific facts prior to meeting J.N. She explained that she does not have any set interview technique, as her approach "is different for each client based on their needs. For [J.N.] specifically[, Ventura] used a person-centered approach with the focus on the connection between emotions, thoughts, and feelings." N.T., 11/15/21, at 68-69. To process J.N.'s trauma she "used narrative exposure therapy. Through this we used writing where she would start with using her earliest memories of trauma and working up from there and documenting them." Id. at 69. Ventura chose to use...