OPINION

Justice TODD.

This case has been returned to this Court following the March 7, 2011 per curiam order of the United States Supreme Court, which vacated our prior decision in this matter and remanded the case for our reconsideration in light of the high Court's decision in Michigan v. Bryant, ____ U.S. ____, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).

The facts and relevant procedural history are as follows.

As recounted in our prior opinion in Commonwealth v. Allshouse, 604 Pa. 61, 985 A.2d 847 (2009), on May 20, 2004, Appellant and M.R. ("Mother") were arguing in the home they shared with their three children. Appellant was shouting from the living room, and Mother was in the kitchen. The couple's 7-month-old twin sons, J.A. and M.A., were in a playpen in the living room, and their 4-year-old daughter, A.A., was playing nearby. Mother's 8-year-old son, R.R., who also lived in the home, had already left for school. Mother reported to police that, at one point, she heard a "squeak" as Appellant sat on a recliner in the living room and, minutes later, she heard him get up from the recliner. She then heard J.A. crying. N.T. Trial, 9/19/05, at 46-47. As Mother ran to the living room, she passed Appellant, who was heading upstairs. Mother observed that A.A. was now in the playpen, holding J.A.'s head on her lap. When Mother picked up J.A., "his arm flopped backwards." Id. at 147. Mother took J.A. to the emergency room, where it was determined that he had suffered a spiral fracture to the right humerus caused by sharp and severe twisting of the arm.

Hospital officials immediately contacted Jefferson County Children and Youth Services ("CYS"), and CYS caseworker John Geist arrived at the hospital and spoke with Dr. Craig Burke, the emergency-room physician who treated J.A. Dr. Burke opined that the spiral fracture of J.A.'s arm indicated abuse. Geist then spoke with Mother, and advised her that J.A. would need to be removed from the family home pending investigation. Mother agreed that J.A. and his siblings would stay with their paternal grandparents.

On May 27, 2004, Appellant suggested to Geist that "possibly [A.A.] had caused injury to [J.A.]." N.T. Hearing, 9/16/05, at 9.1 Accordingly, that same day, Geist went to A.A.'s paternal grandparents' home to speak with A.A. Geist and A.A. sat and talked on the front porch of the house, while A.A.'s grandparents, siblings, and others were inside. During the interview, A.A. told Geist that Appellant had caused J.A.'s injury.2 After his interview with A.A., Geist spoke with his supervisor, and the two agreed to arrange an evaluation of A.A. by Dr. Allen Ryen, a psychologist. Dr. Ryen interviewed A.A. on June 8, 2004, and during the interview, A.A. again implicated Appellant in J.A.'s injury.3

On June 11, 2004, Appellant was arrested and charged with aggravated assault, simple assault, endangering the welfare of a child, reckless endangerment, and harassment. On September 16, 2005, the trial court conducted a hearing pursuant to the Tender Years Hearsay Act ("TYHA"), 42 Pa.C.S.A. § 5985.1, to determine whether the statements given by A.A. to Geist and Dr. Ryen, admittedly hearsay, were admissible under the tender years exception to the hearsay rule.4 Under the TYHA, certain out-of-court statements made by a child victim or witness may be admissible at trial if the child either testifies at the proceeding or is unavailable as a witness, and the court finds "that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability." 42 Pa.C.S.A. § 5985.1(a)(1).

Analyzing the statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the trial court first noted that A.A.'s statements to Geist and Dr. Ryen fell "in between" testimonial and nontestimonial statements "because we do have some questioning." N.T. Hearing, 9/16/05, at 61. The court explained, however:

Id. at 61-62. The trial court determined that A.A.'s statements to Geist and Dr. Ryen satisfied the requirements of the tender years exception to the hearsay rule, and, under Crawford, would be admissible at trial.

On September 19, 2005, Appellant filed a motion for reconsideration, asserting A.A.'s statements constituted testimonial hearsay that was inadmissible under Crawford. Following argument, the trial judge denied the motion, reiterating his opinion that, in determining whether questioning should be deemed testimonial in nature, "you have to look at it from the 4-year-old's point of view because the concern is reliability in that regard." N.T. Hearing, 9/19/05, at 3. On September 20, 2005, a jury convicted Appellant of simple assault5 and endangering the welfare of a child;6 he was acquitted of the remaining charges.

On November 2, 2005, Appellant was sentenced to one to two years in prison, plus fines, costs, and restitution. Appellant filed a post-sentence motion, and a hearing on the motion was held on January 12, 2006. On March 9, 2006, the trial court denied Appellant's motion to the extent he sought judgment of acquittal on his child endangerment conviction.7 On April 3, 2006, Appellant appealed his judgment of sentence to the Superior Court, challenging, inter alia, the trial court's admission of A.A.'s statements to Geist and Dr. Ryen at trial.

With regard to the issues raised before this Court, the Superior Court agreed with the trial court that A.A.'s statement to Geist was nontestimonial in nature, and thus admissible under Crawford. The Superior Court concluded, however, that it could not determine, based on the record, whether A.A.'s statement to Dr. Ryen was testimonial because "it is impossible to determine what Dr. Ryen's primary purpose was in conducting the interview." Commonwealth v. Allshouse, 924 A.2d 1215, 1224 (Pa.Super.2007). Nevertheless, the Superior Court opined that it was unnecessary to determine whether A.A.'s statement to Dr. Ryen was testimonial because, even if it was, admission of the statement was harmless error since Dr. Ryen's testimony was merely cumulative of other properly admitted testimony, and there was overwhelming "untainted evidence" to support the jury's verdict. Id. at 1224-25.

The Superior Court declined to address Appellant's additional argument that the trial court's application of the 2004 amended version of the TYHA, which provides that an out-of-court statement of a child victim or witness under age 12 is admissible at trial if, inter alia, the child is unavailable as a witness and the trial court determines the circumstances surrounding the statement provide sufficient indicia of reliability, violated the prohibition against ex post facto laws. The Superior Court determined that, even if it did, the trial court could have admitted A.A.'s statements as nontestimonial hearsay under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), based on a finding that A.A.'s testimony contained particularized guarantees of trustworthiness. The Superior Court ultimately affirmed Appellant's judgment of sentence in a published opinion on April 18, 2007.

Thereafter, Appellant filed a petition for allowance of appeal, and, on October 22, 2008, this Court granted Appellant's petition with respect to the following issues:

Commonwealth v. Allshouse, 598 Pa. 600, 959 A.2d 903 (2008) (order).

On December 29, 2009, this Court issued an opinion affirming the order of the Superior Court. In so doing, we rejected, inter alia, Appellant's argument that the trial court's admission at trial of A.A.'s statement to Geist violated Appellant's rights under the Confrontation Clause, concluding the challenged statement was nontestimonial because it was given during an ongoing emergency. Allshouse, 604 Pa. at 80, 985 A.2d at 858. Thereafter, Appellant filed a petition for writ of certiorari with the United States Supreme Court, and, on March 7, 2011, the high Court issued an order vacating our decision and remanding the case for further consideration in light of its decision in Michigan v. Bryant.8 On May 31, 2011, this Court issued an order, sua sponte, allowing the parties to submit supplemental briefs to address the impact of the Supreme Court's decision. Both parties have submitted supplemental briefs; thus, we proceed to consider this case under the guidelines set forth by that Court.9

The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const., amend. VI. This constitutional protection is known as the Confrontation Clause.10 In 1980, the United States Supreme Court, in Ohio v. Roberts, supra, held that the Confrontation Clause did not bar admission of an unavailable witness's statement against a criminal defendant, provided the statement was surrounded by "adequate indicia of reliability." 448 U.S. at 66, 100 S.Ct. 2531. Such indicia existed when the testimony being considered either fit within a "firmly rooted hearsay exception," or contained "particularized guarantees of trustworthiness." Id.

More than two decades after its decision in Roberts, the Supreme Court, in Crawford v. Washington, supra, overruled its Roberts decision. In doing so, the Crawford Court criticized the Roberts "indicia of reliability" test as a departure from the principles of the Confrontation Clause in two respects:

Crawford, 541 U.S. at 60, 124 S.Ct. 1354 (emphasis original). The Crawford Court explained that, while it had "no doubt that the courts below were acting in utmost good faith" when finding reliability,

Id. at 67-68, 124 S.Ct. 1354.

Accordingly, the Crawford Court held the Confrontation Clause prohibits out-of-court testimonial statements by a witness, regardless of whether the statements are deemed reliable by the trial court, unless (1) the witness is unavailable, and (2) the defendant had a prior opportunity to cross-examine the witness:

Id. at 68 (emphasis added).

The Crawford Court expressly declined, however, to explain the distinction between testimonial and nontestimonial statements, stating "[w]e leave for another day any effort to spell out a comprehensive definition of `testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. (footnote omitted).

Two years after the Supreme Court's Crawford decision, the Court had the opportunity to clarify the difference between testimonial and nontestimonial hearsay in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). At issue in the consolidated appeal11 in Davis were two separate statements. The first was a statement made by a victim of spousal abuse to a 911 operator; the second was a wife's statement to police officers dispatched to investigate a domestic disturbance, set forth in a battery complaint. In finding the statement to the 911 operator nontestimonial,12 but the wife's statement to the police officers testimonial, the Davis Court set forth the following test for determining whether statements are testimonial or nontestimonial:

Id. at 822, 126 S.Ct. 2266.

The Court acknowledged that the above definition was not exhaustive and did not address all possible scenarios—such as situations which do not involve interrogations—in which a determination of whether a statement is testimonial or nontestimonial is required, explaining:

Id. at 822 n. 1, 126 S.Ct. 2266.

Following Crawford and Davis, however, courts struggled with the vitality of Roberts with regard to nontestimonial hearsay. As noted above, the Crawford Court suggested that nontestimonial hearsay statements might be exempt "from Confrontation Clause scrutiny altogether." 541 U.S. at 68, 124 S.Ct. 1354. In Davis, the Court characterized Roberts as having been "overruled" and noted that the Confrontation Clause's focus on testimonial hearsay must be viewed as marking not merely its "core," but its perimeter. 547 U.S. at 824, 126 S.Ct. 2266. Most emphatically, in Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007), the Court, in addressing the retroactivity of the Crawford decision, explained: "Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the meaning of the Confrontation Clause." 549 U.S. at 419, 127 S.Ct. 1173. Noting "Crawford's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements," the Court sounded the death knell of Roberts:

Id. at 420, 127 S.Ct. 1173.

Thus, the threshold question in the case sub judice is whether the statements are testimonial, for if the statements are nontestimonial, "the confrontation clause places no restriction on their introduction except for the `traditional limitations upon hearsay evidence.'" Appellant's Brief at 35 (citing Davis, 547 U.S. at 821, 126 S.Ct. 2266). In deciding this question, we must consider, as instructed, our Supreme Court's recent decision in Michigan v. Bryant.

In Bryant, Detroit city police officers received a radio dispatch at approximately 3:25 a.m. regarding a gunshot victim. Police discovered the mortally wounded victim, Anthony Covington, lying on the ground next to his car in a gas station parking lot. The victim had a gunshot wound to his abdomen, appeared to be in great pain, and had difficulty speaking. Police officers asked him "what had happened, who had shot him, and where the shooting had occurred." 131 S.Ct. at 1150. The victim told police he had been shot through a door by Bryant as he stood outside the back door of Bryant's home, after which he drove himself to the gas station. An ambulance arrived within five to ten minutes, and the victim was transported to the hospital, where he died several hours later. After leaving the gas station, police went to Bryant's home, where they found blood and a bullet on the back porch, and what appeared to be a bullet hole in the back door. They also found the victim's wallet and identification outside the house.

At Bryant's trial, which occurred before the Supreme Court's decisions in Crawford and Davis, the officers testified regarding the statements made by the victim. Bryant was convicted of, inter alia, second-degree murder, and the Michigan Court of Appeals subsequently affirmed his conviction. Bryant further appealed to the Michigan Supreme Court, which remanded the case to the intermediate appellate court for reconsideration in light of Davis. On remand, the court of appeals again affirmed, holding that the victim's statements were properly admitted at trial because they were nontestimonial. Bryant again appealed to the Michigan Supreme Court, which reversed his conviction on the basis that the victim's statements constituted testimonial hearsay inadmissible under the Confrontation Clause.

The United States Supreme Court granted certiorari and, ultimately, reversed the decision of the Michigan Supreme Court, concluding the victim's identification and description of Bryant and the location of the shooting were nontestimonial statements because the primary purpose of the statements was to enable police to meet an ongoing emergency. Accordingly, the high Court held admission of the victim's statements at trial did not violate the Confrontation Clause. In reaching its decision, the Court found it necessary to provide "further explanation of the `ongoing emergency' circumstances addressed in Davis," as well as "additional clarification with regard to what Davis meant by `the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.'" Bryant, 131 S.Ct. at 1156 (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266).

The Supreme Court first discussed its prior decisions in Crawford and Davis. With regard to the latter, the Court stated:

Bryant, 131 S.Ct. at 1155 (emphasis original and footnote omitted).

The high Court then explained that a determination of whether the primary purpose of an interrogation is to enable police to meet an ongoing emergency requires an objective evaluation of "the circumstances in which the encounter occurs and the statements and actions of the parties." Id. at 1156.13 The Court cautioned that the focus must be on the perspective of the parties at the time of the interrogation, and not based on hindsight, for "[i]f the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause." Id. at 1157 n. 8.

Suggesting that the Michigan Supreme Court both "construed Davis to have decided more than it did" and "employed an unduly narrow understanding of `ongoing emergency' that Davis does not require," the Court in Bryant emphasized that "whether an emergency exists and is ongoing is a highly context-dependent inquiry." Id. at 1158. The Court noted, for example, that domestic violence cases, like Davis, often have a "narrower zone of potential victims than cases involving threats to public safety." Id. Thus, the Court explained: "[a]n assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue." Id. The Court further held "the duration and scope of an emergency may depend in part on the type of weapon employed," and that

Id. at 1159. Finally, the Court noted, as it did in Davis, that "a conversation which begins as an interrogation to determine the need for emergency assistance" may "evolve into testimonial statements." Bryant, 131 S.Ct. at 1159.

The Court further cautioned that the existence of an emergency is not the end of the inquiry:

Id. at 1160.

The Court added that the formality of an encounter between a victim and the police is also an important factor to consider. Nevertheless, formality is not the "sole touchstone" of the primary purpose inquiry because, "although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to `establish or prove past events potentially relevant to later criminal prosecution,' . . . informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent." Id.

Finally, the Court further explained that, "[i]n addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation." Id. Acknowledging that "[s]ome portions of Davis . . . have caused confusion about whether the inquiry prescribes examination of one participant to the exclusion of the other," the Court clarified that its statement in Davis that "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation requires us to evaluate," Davis, 547 U.S. at 822 n. 1, 126 S.Ct. 2266, was "not meant to determine how the courts are to assess the nature of the declarant's purpose, but merely to remind readers that it is the statements, and not the questions, that must be evaluated under the Sixth Amendment." Bryant, 131 S.Ct. at 1161 n. 11. The Court opined that such a combined approach "ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants." Id. at 1161.

Thus, in determining whether the Confrontation Clause precludes the admission of a statement at trial, a court

Id. at 1162.

In sum, in analyzing whether a statement is testimonial, and, therefore, subject to the protections of the Confrontation Clause under Crawford, a court must determine whether the primary purpose of the interrogation was to establish or prove past events relevant to a later criminal prosecution. In making the determination as to the primary purpose of an interrogation, a court first should determine whether the interrogation occurred during the existence of an ongoing emergency, or what was perceived to be an ongoing emergency. Although the existence—actual or perceived—of an ongoing emergency is one of the most important factors, this factor is not dispositive because there may be other circumstances, outside of an ongoing emergency, where a statement is obtained for a purpose other than for later use in criminal proceedings. In determining the primary purpose of an interrogation, a court must also objectively evaluate the circumstances surrounding the interrogation, including the formality and location, and the statements and actions of both the interrogator and the declarant.

With the Bryant Court's clarification of the "primary purpose" and "ongoing emergency" concepts in mind, we now turn to the specific arguments advanced by Appellant in support of his claim that the trial court, in admitting at trial the statements of A.A., who had not testified and was not cross-examined, violated his rights under the Confrontation Clause. The trial court, in determining that A.A.'s statements to Geist and Dr. Ryen were nontestimonial,

Trial Court Opinion, 5/5/06, at 4 (record citations omitted). We note that the trial court did not have the benefit of the United States Supreme Court's decisions in Davis or Bryant at the time it authored its opinion.

The Superior Court did, however, have the benefit of Davis, and, in affirming the trial court's holding with respect to A.A.'s statements to Geist, opined that the language of Davis

Allshouse, 924 A.2d at 1221 (citations omitted).

With regard to A.A.'s statement to Geist, the Superior Court then concluded:

Allshouse, 924 A.2d at 1222-23 (footnotes and citations omitted).

Appellant, however, maintains that A.A.'s statements to both Geist and Dr. Ryen were testimonial under Crawford. As discussed above, in considering whether A.A.'s statements were testimonial, and thus subject to Confrontation Clause protection, we must determine the primary purpose of the interrogations during which the statements were made. In making this determination, we first consider whether the interrogation occurred during the existence, or perceived existence, of an ongoing emergency. With respect to Geist's interrogation of A.A., Appellant avers:

Appellant's Supplemental Brief at 49 (footnote omitted). We are not persuaded by Appellant's argument.

Geist's interview with A.A. occurred on May 27, 2004, one week after the assault on J.A., and after J.A. had been removed from the family home; thus, according to Appellant, there was no longer an ongoing emergency. The validity of Appellant's argument, however, is premised on Appellant having caused J.A.'s injury. On May 27, 2004, Appellant told Geist that he believed A.A. had caused J.A.'s injury. N.T. Trial, 9/19/05, at 128. It was thus incumbent upon Geist to immediately investigate the matter further, because, at that time, A.A. and J.A. were together in their grandparents' home, where A.A. could do further harm to J.A. Indeed, Geist interviewed A.A. the same day that Appellant told Geist he believed A.A. caused J.A.'s injury. Under these circumstances, we find no error by the Superior Court in concluding A.A.'s statement to Geist was given in the context of an ongoing emergency.15 16

As the Supreme Court's recent decision in Bryant makes clear, however, a finding that A.A.'s statement was made during an ongoing emergency, though one of the most significant factors to be considered in a primary purpose inquiry, is not dispositive. See Bryant, 131 S.Ct. at 1160 ("whether an ongoing emergency exists is simply one factor—albeit an important factor—that informs the ultimate inquiry regarding the `primary purpose' of an interrogation"). We must also consider the statements and actions of both A.A. and Geist, as well as the formality of the circumstances surrounding the interview.

In the instant case, the Superior Court concluded that A.A.'s statement to Geist was nontestimonial under Davis because (a) Geist's intent during his interview with A.A. was not to obtain testimony for the purpose of a criminal proceeding, but to ensure the safety of J.A. and his siblings, and (b) the environment and circumstances surrounding A.A.'s statement were informal and not suggestive of an investigatory interview. Allshouse, 924 A.2d at 1223.

As discussed above, Geist interviewed A.A. only after Appellant suggested that A.A. was responsible for harming her younger brother, J.A., with whom she still resided. In arguing that Geist's primary purpose was to "solicit details about a past event," Appellant avers: "[Geist] asked [A.A.] if she harmed her brother. Upon hearing a negative response, Geist moved on and continued "to investigate and figure out what happened. The rest of his questions were geared to learning about who did it and how he did it." Appellant's Supplemental Brief at 54. However, Appellant's focus on the specific questions asked by Geist is inconsistent with the Bryant Court's reminder that "it is the statements, and not the questions, that must be evaluated under the Sixth Amendment." Bryant, 131 S.Ct. at 1161 n. 11.

Appellant further argues that Geist's actions after the interview, including relaying A.A.'s statement to his supervisor, suggest that Geist's primary purpose in conducting the interview was to establish past events for use in a subsequent criminal prosecution:

Appellant's Supplemental Brief at 54-55 (record citations omitted). With the exception of Geist relaying A.A.'s statement to his own supervisor, which, as the Superior Court noted, Geist was statutorily obliged to do,17 these actions were either performed by someone other than Geist, i.e., his supervisor or the district attorney, or were performed by Geist after the matter had been referred to the police. Thus, we conclude the actions have no bearing on determining Geist's primary purpose in conducting his interview with A.A. in the first instance, and find that the statements and actions of Geist support the Superior Court's determination that the primary purpose of his interview with A.A. was to allow Geist to assess and address what he believed to be an ongoing emergency, not to obtain testimony about a past event for use in a criminal proceeding.18

We also must consider the statements and actions of A.A. during her interview with Geist to determine whether her primary purpose in making the statements was to establish past events for use during a subsequent criminal prosecution. See Bryant, 131 S.Ct. at 1160 (the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation). The trial court opined that it was unlikely that A.A., who was only four years old at the time of the interview, would have contemplated that her statements might later be used against Appellant in a criminal prosecution. The trial court further noted that Geist never conveyed to A.A. the nature of his job, any suspicions he may have had, or the possibility that A.A. would have to be a witness against Appellant. Trial Court Opinion, 5/5/06, at 4.

Nevertheless, in support of his argument that the "words and actions of [A.A.] also demonstrate the primary purpose [of her interview with Geist] was to relay her knowledge about past events," Appellant's Supplemental Brief at 55, Appellant suggests that the mere fact that A.A. agreed to speak with Geist and answered his questions is indicative of her intent to "report facts about possible criminal conduct that occurred a week earlier." Id.19 We do not agree with Appellant's suggestion that A.A.'s mere acquiescence in speaking with Geist, without more, is evidence that the purpose of Geist's interview with A.A. was to have A.A. provide testimony regarding past events for use in a subsequent criminal proceeding, and Appellant provides no support for such a conclusion.

Appellant further argues the trial court erred in considering A.A.'s age in evaluating the primary purpose of her interview with Geist. Appellant avers "nothing in [Crawford's] framework turns on the age of the witness," and "[a] child's statements in an interview with a CYS investigator operate as a substitute for live testimony just as readily as an adult's statements in the same context would." Id. at 56-57. Initially, we note that neither of the lower courts held that A.A.'s statements were nontestimonial solely because of age. Rather, the trial court simply considered A.A.'s age as one factor in evaluating her statements and actions as part of its primary purpose determination.

Nevertheless, Appellant contends that any consideration of A.A.'s age was improper, citing State v. Siler, 116 Ohio St.3d 39, 876 N.E.2d 534 (2007), for the proposition that the age of the declarant (who in Siler was three years old), "is not relevant to a confrontation clause analysis." Appellant's Supplemental Reply Brief, at 4-5. However, the court in Siler did not hold that the declarant's age was not relevant; rather, it held that the declarant's age was not determinative, and that a child's statement should be evaluated under the primary purpose test. Siler, 876 N.E.2d at 544.

Moreover, we agree with the position taken by the Colorado Supreme Court in People v. Vigil:

127 P.3d 916, 925 (Colo.2006) (citing, inter alia, Lagunas v. State, 187 S.W.3d 503 (Tex.App.2005) (considering a declarant's age as a circumstance relevant to the inquiry of whether the child's statement constituted testimonial evidence)). Indeed, we conclude this approach is consistent with Bryant's requirement that a court consider all of the relevant circumstances when determining whether a declarant's statements are testimonial. Id. at 1162. Accordingly, we reject Appellant's contention that the statements and actions of A.A. suggest that the primary purpose of her interview with Geist was to have A.A. recount past events for later use in a criminal proceeding.

Finally, pursuant to Bryant, we consider the circumstances which surrounded Geist's interview with A.A. In Bryant, the Court considered the circumstances surrounding the interview of the victim, and concluded, based on, inter alia, the "fluidity" of the situation, that the "informality of the situation and interrogation" was more similar to the 911 call in Davis than the station-house interview conducted in Crawford. Bryant, 131 S.Ct. at 1166. The Bryant Court opined that such informality suggested "the interrogators' primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted [the victim] to ... the possible future prosecutorial use of his statements." Id.

Despite Appellant's assertion that, inter alia, Geist's act of introducing himself to A.A. and shaking her hand, along with the location of the interview created a sense of formality, Appellant's Supplemental Brief at 58-59, we find the circumstances surrounding Geist's interview with A.A. lacked formality. Geist was dressed in jeans; Geist and A.A. sat on the front porch of her grandmother's house;20 and Geist had no control over the environment, as his conversation with A.A. was cut short when Appellant's brother intervened.

For all of the foregoing reasons, under Crawford and its progeny, we hold that A.A.'s statement to Geist was nontestimonial, and its admission at trial did not violate Appellant's rights under the Confrontation Clause.

We now turn our attention to whether A.A.'s statement to Dr. Ryen was testimonial. We would have difficulty concluding that A.A.'s statement to Dr. Ryen was given during an ongoing emergency, as Dr. Ryen's interview with A.A. took place on June 8, 2004, nearly two weeks after Appellant suggested to Geist that A.A. may have been responsible for J.A.'s injuries. Nevertheless, we need not consider whether A.A.'s statement was testimonial under Crawford and its progeny. As the Superior Court opined, any error in admitting A.A.'s statement to Dr. Ryen was harmless because the statement was merely cumulative of A.A.'s statement to Geist, which we have concluded was properly admitted.

It is well settled that "an appellate court has the ability to affirm a valid judgment or verdict for any reason appearing as of record." Commonwealth v. Parker, 591 Pa. 526, 534-35, 919 A.2d 943, 948 (2007) (citing Commonwealth v. Katze, 540 Pa. 416, 658 A.2d 345 (1995) (Opinion in Support of Affirmance)). As we explained in Commonwealth v. Thornton,

494 Pa. 260, 266, 431 A.2d 248, 251 (1981). This Court may affirm a judgment based on harmless error even if such an argument is not raised by the parties.21

We agree with the Superior Court that any error in the admission of A.A.'s statement to Dr. Ryen was harmless error because the statement was merely cumulative of the statement A.A. made to Geist. Indeed, the substance of A.A.'s statements to Dr. Ryen and Geist was the same: A.A. indicated to both Geist and Dr. Ryen that Appellant had hurt J.A. by grabbing and pulling on J.A.'s arm. Accordingly, Appellant is not entitled to relief based on his claim that A.A.'s statement to Dr. Ryen was improperly admitted.

Having determined that A.A.'s statement to Geist was not testimonial under Crawford and its progeny, and thus not subject to the protections of the Confrontation Clause, we now address Appellant's argument that the trial court's admission of the statement as a hearsay exception under the current version of the TYHA constituted an ex post facto violation.22 The trial court found A.A.'s statements to Geist and Dr. Ryen admissible under the tender years hearsay exception. The current version of the TYHA, which became effective on July 15, 2004, provides:

42 Pa.C.S.A. § 5985.1(a) (amended 2004).

At the time J.A. was injured in May 2004, however, the prior version of the TYHA was still in effect, and provided:

42 Pa.C.S.A. § 5985.1(a) (2000) (emphasis added). Thus, the amended version eliminated the requirement that the offense be "performed with or on the child." Appellant contends that the trial court's admission at trial, under the amended version of the TYHA, of A.A.'s statements to Geist and Dr. Ryen, that did not describe abuse performed with or on A.A., constituted a violation of the prohibition against ex post facto laws contained in the United States and Pennsylvania Constitutions.23

Preliminarily, we note that the ex post facto clauses of the United States and Pennsylvania Constitutions are virtually identical in language, and the standards applied to determine ex post facto violations under both constitutions are comparable. Commonwealth v. Young, 536 Pa. 57, 65 n. 7, 637 A.2d 1313, 1317 n. 7 (1993) (holding that analysis of the appellant's federal ex post facto claim disposed of his state claim as well). The ex post facto clause of the United States Constitution provides: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts...." U.S. Const. art. 1, § 10. The ex post facto clause of the Pennsylvania Constitution provides: "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed." Pa. Const. art. 1, § 17.

A law violates the ex post facto clause of the United States Constitution if it (1) makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) aggravates a crime, or makes it greater than it was when committed; (3) changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; or (4) alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense in order to convict the offender. Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)); Young, 536 Pa. at 65-66, 637 A.2d at 1317 (assertion of an ex post facto violation based on the third prong of Calder).

Appellant maintains that the trial court's application of the amended version of the TYHA in his case violated the fourth Calder prong because "[t]he evidence received at trial was different than what would have been received back in May, 2004." Appellant's Brief at 71 (emphasis original). In denying Appellant relief on his ex post facto claim, the Superior Court reasoned:

Allshouse, 924 A.2d at 1226-27 (footnote omitted). We conclude Appellant is not entitled to relief on the basis of his ex post facto claim, albeit for different reasons than relied upon by the Superior Court.24

The United States Supreme Court addressed the issue of ex post facto laws regarding rules of evidence in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). In Hopt, the appellant committed a murder at a time when the law precluded a particular class of witnesses— namely, convicted felons—from testifying at trial. By the time of the appellant's trial, however, this law had been repealed, and the trial court allowed a witness who was incarcerated on murder charges to testify at the appellant's trial. In holding there was no violation of the prohibition against ex post facto laws, the Court stated:

Hopt, 110 U.S. at 589-90, 4 S.Ct. 202.

Similarly, in Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898), the appellant alleged an ex post facto violation when evidence consisting of a handwriting comparison, which was inadmissible at the time the crime was committed and at the appellant's first trial, was used in a second trial at which the appellant ultimately was convicted. The Supreme Court rejected the appellant's argument using language similar to that used in Hopt:

Thompson, 171 U.S. at 386-88, 18 S.Ct. 922.

Most recently, in Carmell, supra, the Supreme Court considered an ex post facto challenge to a Texas law, an amendment to which altered the rules of evidence for crimes committed prior to the amendment. The appellant in Carmell was convicted in 1996 on 15 counts of committing sexual offenses against his stepdaughter. The offenses were committed between 1991 and 1995, when the victim was between 12 and 16 years old. Prior to September 1, 1993, Art. 38.07 of the Texas Code of Criminal Procedure specified that a victim's testimony regarding a sexual offense could not support a conviction unless (1) corroborated by other evidence or (2) the victim informed another person of the offense within six months of its occurrence (an "outcry"). However, if the victim was under age 14 at the time of the offense, the victim's testimony alone could support a conviction. The original version of Article 38.07 read:

Carmell, 529 U.S. at 517, 120 S.Ct. 1620, quoting Tex.Code Crim. Proc. Ann., Art. 38.07 (1983). Subsequently, a 1993 amendment to the code of criminal procedure allowed a conviction based on the victim's testimony alone if the victim was under age 18.

Carmell appealed his convictions on four of the counts, arguing that the convictions could not stand under the pre-1993 version of the law in effect at the time the crimes were committed because the convictions were based solely on the testimony of the victim, who was not under 14 at the time of the offenses and had not made a timely outcry. The Texas Court of Appeals, citing Hopt, supra, held that applying the 1993 amendment retroactively did not violate the ex post facto clause of the United States Constitution because it did not increase the punishment or change the elements of the offense the state had to prove; rather, it merely removed certain restrictions on the competency of certain classes of persons as witnesses, and, thus, was simply a rule of procedure. Carmell, 529 U.S. at 520, 120 S.Ct. 1620. Recognizing a conflict in decisions regarding the retroactive application of a statute repealing a corroboration requirement, the United States Supreme Court granted review, and, in a 5-4 decision, reversed the Texas Court of Appeals.

The Court first emphasized that "Texas courts treat Article 38.07 as a sufficiency of the evidence rule, rather than as a rule concerning the competency or admissibility of evidence." Id. at 518 n. 2, 120 S.Ct. 1620. After acknowledging the four categories of ex post facto laws set forth in Calder and discussed above, the Court noted that a law that alters the legal rules of evidence, and allows for the receipt of less, or different testimony than the law required at the time of the commission of the offense in order to convict the offender, constitutes the fourth type of ex post facto law set forth in Calder. With respect to the merits of the case before it, the Court concluded:

Carmell, 529 U.S. at 530, 120 S.Ct. 1620 (emphasis omitted).

After careful review, we find Carmell distinguishable, and we conclude that the amended version of the TYHA at issue in the instant case is more akin to the laws challenged in Hopt and Thompson. Accordingly, we hold, as did the Supreme Court in those cases, that application of the amended version of the TYHA does not constitute a violation of the United States or Pennsylvania ex post facto clauses. The TYHA is not a sufficiency rule, as it does not address the type of evidence sufficient to support a conviction. Unlike the amendment to Art. 38.07 of the Texas Code of Criminal Procedure challenged in Carmell, which altered the specific requirement that the State produce evidence of both the victim's testimony and corroboration in order to convict a defendant, the amended version of the TYHA in the instant case did not alter the evidence the Commonwealth was required to prove in order to convict Appellant. A.A.'s testimony, though potentially helpful, was not an essential element of the Commonwealth's case against Appellant. Indeed, evidence consisting of the testimony of Mother and the emergency room physician, though circumstantial, arguably was sufficient to support Appellant's conviction. The amended version of the TYHA simply expanded the class of persons whose out-of-court statements are admissible in court, from a victim or witness, age 12 or younger, on or with whom an offense was performed by another, to a victim or witness, age 12 or younger. In eliminating the requirement that the offense had to be performed "with or on the child by another," the amended version of the TYHA "simply enlarge[d] the class of persons who may be competent to testify in criminal cases." Hopt, 110 U.S. at 589, 4 S.Ct. 202. Unlike in Carmell, the amendment did not allow Appellant to be convicted on less, or different evidence.25 Thus, we reject Appellant's argument that the trial court's admission at trial of A.A.'s statement to Geist violated the prohibition against ex post facto laws.

For all of the reasons set forth above, we affirm the order of the Superior Court.

Justices McCAFFERY and ORIE MELVIN did not participate in the consideration or decision of this case.

Chief Justice CASTILLE and Justices SAYLOR, EAKIN and BAER join the opinion.

Justice SAYLOR files a concurring opinion in which Chief Justice CASTILLE joins.

Justice SAYLOR, concurring.

I join the majority opinion, as I did the prior one in this case, while again crediting the majority author for doing the best job possible in light of the "many open questions in the wake of the immense shift in Confrontation Clause jurisprudence heralded by Crawford [,] leav[ing] lower-tier federal courts and state courts in a difficult position in terms of predicting the appropriate limits of this critical Sixth Amendment provision, as newly construed." Commonwealth v. Allshouse, 604 Pa. 61, 93, 985 A.2d 847, 866 (2009) (Saylor, J., concurring, joined by Castille, C.J.). To this, I would add that Bryant appears to work a new "immense shift" in the jurisprudence, as amply developed in the dissenting opinion by Crawford's author, Justice Scalia. See Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 1168-76, 179 L.Ed.2d 93 (2011) (Scalia, J., dissenting).

I would also highlight that, under the evolving primary purpose test, a finding of an ongoing emergency is not an essential predicate to a determination that a statement is non-testimonial. See Majority Opinion, at 173 (quoting Bryant, ___ U.S. at ___, 131 S.Ct. at 1155 ("[T]here may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.")). Accordingly, it is significant to me that, under the governing statutory scheme, investigative efforts undertaken by county agencies responsible for child protection services are:

23 Pa.C.S. § 6362 (emphasis added).

Given the county agency's additional duty to coordinate investigations with law enforcement officials,1 it would seem to me that child protection services investigations present classically mixed motive scenarios. Nevertheless, the circumstances before the Bryant Court are as readily viewed as involving deeply mixed motives; yet, against a staunch dissent amply developing such other motivations, the Bryant majority was able to accept the "ongoing emergency" overlay as predominant. See Bryant, ___ U.S. at ___, 131 S.Ct. at 1165-67.

As such, my best prediction of the High Court's response to Pennsylvania child protection services investigations by county agencies, in terms of the new Confrontation Clause regime, is that it will afford substantial weight to the legislative design defining the agencies' purposes in terms of the provision of the essential services. See 23 Pa.C.S. § 6362. Thus, in circumstances in which agency personnel are acting in conformity with their authority and mandates (and there are no circumstances suggesting some hidden motive on the part of the involved child or children), it would seem to me that responsive statements generally should be deemed non-testimonial, and thus, as outside the concern of the Sixth Amendment's Confrontation Clause.2

Again, my reasoning in this regard is pursuant to the newest construction of the United States Constitution as reflected in the Bryant decision, which we have been asked to apply here.

Chief Justice CASTILLE joins this concurring opinion.