OPINION BY LAZARUS, J.
Michele Renae Hunter appeals from the trial court's order denying her pretrial motion in limine
Because the record reflects that the texts are being used in ongoing child abuse proceedings involving Hunter and the child-victim in the instant criminal case, Hunter could not have had a reasonable expectation that her communications would remain confidential. Therefore, we agree with the trial court that the section 5914 spousal privilege does not apply under the facts of this case and the texts are admissible at trial. Accordingly, we affirm.
In June 2012, Hunter was charged with simple assault (M1),
Initially, Hunter told the police that on March 16, 2011, B.H., Jr., had been upstairs and had fallen and reopened an old cut on his chin. She also told the officers that the boy had passed out in the bathroom, fell, and was non-responsive and had difficulty breathing. Days later, Hunter told the authorities that she had not given accurate information regarding how the child became injured and that, in fact, on March 15, 2011, she had pushed the child down, causing him to hit his head. She said that he became unresponsive and that she was unable to rouse him by carrying him to the bathroom and splashing cold water in his face. She said that the boy remained relatively unresponsive ("limp") throughout the day, falling in and out of periods of responsiveness. He was unable to move his limbs or sit up on his own.
Hunter also told the authorities that throughout the day on March 15, she began sending Husband texts
Hunter was charged with simple assault, aggravated assault and endangering the welfare of a child; Husband was charged with conspiracy to endanger the welfare of a child and endangering the welfare of a child. On October 17, 2011, Hunter filed an omnibus pretrial motion seeking to exclude from evidence the texts she sent to Husband on March 15th & 16th. The trial court held a hearing on the motion on December 15, 2011. Ultimately the trial court denied Hunter's motion. This timely appeal follows.
This Commonwealth's statute regarding privileged confidential communications between spouses, which is central to this appeal, states:
42 Pa.C.S.A. § 5914 (enacted 1976). As noted, the only recognized exception to
Practically, it is important that courts recognize that excluding information may not always further the intended goal of a privilege and may, in fact, hinder the prosecution of legal proceedings intended to protect fragile members of society. One such instance is in the prosecution of child abuse cases when the perpetrator(s) involved are spouses and at least one is the parent of the minor child.
Pennsylvania's Child Protective Services Law (CPSL) recognizes that, in order to further important public policy, privileged communications may need to give way to the prosecution of child abuse. Under the CPSL, confidential communications between spouses are admissible in any proceedings regarding child abuse or the cause of child abuse. 23 Pa.C.S.A. § 6381(c).
Id. at 722.
In Spetzer, the Court found that the spousal communications at issue were not confidential based upon the fact that defendant's "persistent and sadistic statements" concerning his actual and contemplated crimes against his wife and her children "could not be rationally excluded [under the section 5914 privilege] ... as the challenged communications `did not arise from the confidence existing between the parties, but the want of it.'" Id. at 721. Although in this case neither side claims that Hunter and Husband's marriage was in a state of disharmony at the time the texts were sent, the Spetzer Court's commentary on the interplay of the CPSL and section 5914 is instructive to our holding today.
While communications between spouses are presumed to be confidential
In the instant case, we conclude that Hunter could not have reasonably expected her texts to remain confidential where she testified that they had been the subject of a Children and Youth hearing, N.T. Omnibus Hearing, 12/15/2011, at 33-34, and where the record reflects that Hunters' texts had, in fact, been at issue in an August county child welfare agency hearing that "likely contained information that would be material to [Hunter's] guilt or punishment [in the instant criminal proceedings]." Defendant's Motion for Preparation and Release of Transcripts, 11/3/2011. Because the texts cannot be considered confidential under the facts of this case, section 5914 does not apply to exclude Hunter's texts from evidence.
Moreover, we find that our decision today provides some consistency in the application of section 5914 and our Commonwealth's spousal testimonial privilege, codified at 42 Pa.C.S.A. § 5913.
The privilege in section 5913
Section 5914 is a much more limited rule than that espoused in section 5913. Id. at 1077. The section 5914 privilege only bars a spouse's testimony if it pertains to a communication made by the party-spouse. By contrast, a testimonial privilege, like that found in section 5913, bars a court from compelling any testimony from a witness in a marital relationship with a party in a court proceeding. Whereas the section 5914 privilege outlasts both death and divorce, the section 5913 privilege only extends as long as the marriage.
Accordingly, even if Hunter's texts were not admissible under section 5914, under the child abuse exception in section 5913, Husband may be compelled to testify against Hunter at trial. Hancharik, supra (legislature's amendments to section 5913 have made it abundantly clear that spousal privilege simply does not exist in criminal proceedings where violence has been done or threatened upon a minor child in the care or custody of spouse/defendant). In fact, at Hunter's bail hearing, defense counsel indicated that Husband had already agreed to testify against Hunter in this criminal case. N.T. Bail Hearing, 8/23/2011, at 19.
It seems illogical to potentially hinder the Commonwealth's child abuse case by excluding at trial, as per section 5914, critical communications regarding that abuse made between spouses — especially where more than 90% of reported child abuse cases stem from abuse that occurred in the home.
Instantly, we conclude that where a defendant-spouse is the alleged perpetrator in current child abuse proceedings
Order affirmed.
42 Pa.C.S.A. § 5913. See also Act No. 16 of 1989 (converting spousal incompetency to testify into waivable spousal privilege).