Comm. v. Tyrrell, 2018 PA Super 5 (Jan. 17, 2018)

This was an appeal out of Dauphin County.  Jonathan Tyrrel was convicted and sentenced to 50 to 100 years’ imprisonment on charges of raping his then eight-year-old daughter.

On appeal, Tyrrell raised three issues.  The first issue challenged a statement he gave to police.  Tyrrell said that his statement was involuntary—it was taken from him as a result of police threats that they would arrest his wife if he did not cooperate.

The second issue dealt with a state law that permitted the taking of a child’s testimony and presenting it by television rather than in a courtroom setting.  This issues consumed a bulk of the Court’s opinion.

And lastly, the third issue dealt with the concept of “taint.”  Taint is a short hand way of describing “the implantation of false memories or distortion of actual memories through improper or suggestive interview techniques.”

In this appeal, the Superior Court found that none of these issues provided Tyrrell relief.  Briefly, the Superior Court agreed that there was no merit to Tyrrell’s claim that his statement to police was involuntary. “It [was] hard to fathom that someone who was so worked up about his wife after such a threat . . . would take more than two hours to finally admit that perhaps an accident occurred . . . .”  And likewise, with the taint issue, the Superior Court dismissed this issue rather quickly.  There was no evidence that Tyrrell’s daughter was tainted, or subjected to “repetitive, suggestive, or coercive interview techniques.”

It was the second issue, again, that the Superior Court exerted most of its energy on.  This issue required the interpretation of a state law that permits a trial judge to order the testimony of a child victim or child material witness be taken in a room other than the courtroom but be “transmitted by a contemporaneous alternative method.”  In order to allow this, the law says, the trial judge must determine that the child’s testimony in open court or in the defendant’s presence “will result in . . . suffering serious emotional distress that would substantially impair the . . . ability to reasonably communicate.”  In making this determination the law reads that the trial judge may

Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting.

In this case, when the trial judge permitted Tyrrell’s daughter to testify outside the courtroom, the court relied upon the testimony of a “licensed professional counselor” and a CYS worker, both who essentially testified that testifying in court for Tyrrell’s daughter would be “traumatic” and something “she’s really just not in a place for.”

Recognizing that there have been few occasions to interpret the law at issue, the Superior Court held, contrary to Tyrrell’s thinking, that the law “does not require testimony from the proposed witness or the witness’ current counselor,” “[n]or does it require testimony from a parent/foster parent or an expert witness.”

Interestingly, the Superior Court provided no discussion, however, of what it meant to have “dealt” with a child “in a medical or therapeutic setting.”  That is likely to be a question resolved for another day.