Commonwealth v. Allshouse

*66 OPINION

Ricky Lee Allshouse, Jr. appeals the April 18, 2007 order of the Superior Court of Pennsylvania, which affirmed the judgment of sentence imposed by the Jefferson County Court of Common Pleas following his convictions of simple assault1 and endangering the welfare of a child.2 For the reasons set forth below, we affirm.

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 humerous 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.

*67On May 27, 2004, Appellant suggested to Geist that “possibly [A.A.] had caused injury to [J.A.].” N.T. Hearing, 9/16/05, at 9.3 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.4 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.5

*68On 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.6 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).

*69Analyzing 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:

I’m going to find it’s nontestimonial for these basis [sic]. I think we have to look at what an objective four-year-old of average intelligence would think. And Mr. Geist, as he appears today, he does not have on a uniform but carries a badge, but not a badge in the sense of police work.

Dr. Ryen has a psychological appointment in the office to believe that later these statements would be used in Court. I certainly do not think for this four-year-old that she could make the determination that it would be available for use later at trial.

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 assault and endangering the welfare of a child; 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 *70judgment 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 presently before this Court, the Superior Court agreed with the trial court that A.A.’s statements to Geist were 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 statements to Dr. Ryen were 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 statements to Dr. Ryen were testimonial because, even if they were, admission of the statements 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.

*71Thereafter, 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:

1. Does the Superior Court’s decision conflict with U.S. Supreme Court precedent on the confrontation clause thereby creating a direct conflict with another Superior Court decision?

2. Did the Superior Court disregard this Court’s harmless error precedent by allowing the Commonwealth to discharge its burden of proving harmless error through a two-sentence footnote?

3. Did the Superior Court decision misconstrue the reach of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and thereby insulate Pennsylvania’s Tender Years Hearsay Act from an ex post facto challenge?

Commonwealth v. Allshouse, 598 Pa. 600, 959 A.2d 903 (2008) (order). This Court heard oral argument in this matter on March 4, 2009.

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.8 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 exist when the testimony being considered either fits within a “firmly rooted hearsay exception,” or contains “particularized guarantees of trustworthiness.” Id.

*72More 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:

First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony. This often results in close constitutional scrutiny in cases that are far removed from the core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect against paradigmatic confrontation violations.

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,

[t]he Framers ... would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. By replacing-categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulate, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s-great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts ’ providing any meaningful protection in those circumstances.

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 reli*73able by the trial court, unless (1) the witness is unavailable, and (2) the defendant had a prior opportunity to cross-examine the witness:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Id. at 68, 124 S.Ct. 1354 (emphasis added).

The Craivford 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 appeal9 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,10 but the *74wife’s statement to the police officers testimonial, the Davis Court set forth the following inquiries for determining whether statements are testimonial or nontestimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822, 126 S.Ct. 2266. Thus, a statement is nontestimonial under the first Davis inquiry if it is made with the purpose of enabling police to meet an ongoing emergency. Conversely, a statement is testimonial under the second inquiry in Davis if: (1) it was made in absence of an ongoing emergency; and (2) the primary objective of the interrogation or questioning that resulted in the statement was to establish or prove past events. Collectively, these Davis inquiries are commonly referred to as the “primary purpose” test.

The Court acknowledged that the two inquiries described above were 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:

Our holding refers to interrogations because ... the statements in the cases presently before us are the products of interrogations — which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testi*75mony or answers to open-ended questions than they were to exempt answers to detailed interrogation.

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

After Crawford and Davis, however, courts have 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. Lastly, and 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:

Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.

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

These expressions notwithstanding, a number of courts, including the Third Circuit Court of Appeals, continue to apply the Roberts standard to determine the admissibility of nontestimonial hearsay statements. See, e.g., Albrecht v. Horn, 485 F.3d 103, 134 (3d Cir.2007) (admissibility of nontestimonial evidence governed by Roberts); State v. Camacho, 282 Conn. 328, 924 A.2d 99, 116 (2007) (stating that nontestimonial hearsay statements may still be admitted as evidence against *76an accused in a criminal trial if they satisfy both prongs of the Roberts test); U.S. v. Myton, 224 Fed.Appx. 125, 129 (2d Cir.2007) (holding that the admissibility of nontestimonial, out-of-court statements are evaluated under the “two-part test” of Roberts).

Nevertheless, in the instant case, Appellant concedes that the threshold question is whether the statements are testimonial, because, 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). Thus, we turn to the merits of the issues on which we granted review.

Appellant first contends that the trial court, in admitting at trial the statements of A.A., who had not testified and was not cross-examined, violated his Confrontation Clause rights under Crawford and Davis. The trial court, in determining that A.A.’s statements to Geist and Dr. Ryen were nontestimonial,

focused on the language quoted in Crawford that testimonial statements included those made under circumstances that would lead an objective witness reasonably to believe that his or her statement would be available for use at a later trial. The Court then concluded that an objective four-year-old of average intelligence and under the existing circumstances would not consider that her statements might later be used against [Appellant]. In fact, when he talked to [A.A.] on her own front porch, Geist was wearing blue jeans and never indicated to her his suspicions, the nature of his job, or her potential role as a witness against [Appellant]. Dr. Ryen also wore casual clothing and no badge of authority; he did not apprise [A.A.] of the purpose of their visit; and offered no indication that her statements could later be used in court. He then proceeded to engage [A.A.] in conversation and play that no typical four-year-old would interpret as being designed to elicit inculpatory information.

Trial Court Opinion, 5/5/06, at 4 (record citations omitted). We note that the trial court did not have the benefit of the *77United States Supreme Court’s decision in Davis at the time it authored its opinion, as Davis was decided on June 19, 2006.

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

implies that a number of factors must all be considered in determining whether a statement is testimonial; the use of the word “and” indicates that both prongs of the test must be satisfied before a statement can be considered testimonial. In satisfying the first half of the Davis test by determining whether the statement being examined was given during an ongoing emergency, only one factor needs to be examined — the temporal relation of the statement being-examined to the wrong the statement describes.

Satisfying the primary purpose prong of the Davis test, in contrast, encompasses examination of two factors. The first factor that must be considered is the objective intent of the declarant and the objective intent of the questioner in giving and eliciting the statement being considered. Furthermore, the environment in which the statement was given, including the attendant formalities, must also be considered.... In sum, the Court’s primary purpose test seems to be a variant of the totality of the circumstances test with parameters that are more specifically defined.

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

With regard to A.A.’s statements to Geist, the Superior Court then concluded:

Examining the facts and circumstances of this interview leads us to the conclusion that A.A.’s statements are admissible as non-testimonial under Crawford, should a hearsay exception prove applicable.[11] While we recognize Geist conducted the interview a full seven days after the assault, *78the intentions of Geist and A.A. as well as the attendant environmental factors indicate A.A.’s statements are, indeed, non-testimonial in nature.

Presently, appellant does not dispute Geist’s contention that he only wanted to interview A.A. after appellant accused the young girl of harming J.A., and it would be absurd to assume A.A. had intended to give statements for use in a legal proceeding. Geist’s failure to interview A.A. when he had her under his [exclusive supervision and control when he first transported A.A. and her siblings to their grandparents’ home] also indicates Geist’s contention is credible and, hence, there is little question Geist’s primary purpose in interviewing A.A. was not to establish past events which would be potentially relevant in a criminal trial, but to ensure both A.A. and her siblings’ welfare was secure while they remained in the custody of her grandparents. In addition thereto, Geist did not report A.A.’s statements to law enforcement but, rather, notified his CYS supervisor of them after the interview, even though he had the option of reporting the incident to the police.

Furthermore, the environment surrounding the interview does not indicate A.A.’s statements were testimonial. As noted above, Geist was dressed casually and the interview was conducted on neutral ground. Additionally, Geist had no control over the interviewing environment — as his inquires were cut short after appellant’s brother intervened. There was simply no semblance of formality during the interview.

In sum, we do not view the Supreme Court’s primary purpose test as being reliant solely on the temporal relationship between the statement and the wrong the statement describes and, instead, view the test as encompassing the broader range of factors applied in Davis. Inasmuch as this is the case, we conclude Geist’s testimony is nontestimonial.

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

Predictably, Appellant contends that A.A.’s statements to both Geist and Dr. Ryen were testimonial under Davis. Ap*79pellant first asserts there was no ongoing emergency, as any emergency that existed ended with J.A.’s removal from the family home on May 20, 2004. Appellant further maintains that the questions posed to A.A. by Geist on May 27, 2004 “were solely designed to have the child witness recreate past events,” and that the “purpose associated with Dr. Ryen’s interview was 100% investigative and 0% medicinal.” Appellant’s Brief at 41, 42. Finally, Appellant avers that, to the extent the formality associated with a statement should be considered, the circumstances surrounding A.A.’s statement to Geist — specifically, the fact that Geist introduced himself to A.A., asked her permission to speak with her, and shook her hand — support a conclusion that the purpose of the interview was investigative. Id. at 43.12

As noted above, in considering whether A.A.’s statement to Geist was testimonial under Davis, the Superior Court considered the first of the two Davis inquiries — whether the statement was given during an ongoing emergency — and stated that it “recognize[d] Geist conducted the interview a full seven days after the assault.” Allshouse, 924 A.2d at 1222. However, the court further noted that there was “some question as to whether A.A. was being abused in some way by her grandparents and other members of the family and, therefore, an argument could be made that an ongoing emergency was present.” Id. at n. 15 (emphasis omitted).

*80With regard to the second Davis inquiry, the Superior Court further concluded that A.A.’s statement to Geist was not testimonial 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. Appellant, however, alleges that the Superior Court’s application of the primary purpose test of Davis was flawed as a result of its “injection of the declarant’s intent” into the factors considered under that test. Appellant’s Brief at 54.

We conclude that A.A.’s statement to Geist was nontestimonial under Davis because it was given during an ongoing emergency. Specifically, we note that, although Appellant asserts that any ongoing emergency ended with J.A.’s removal from the family home on May 20, 2004, the validity of this assertion is premised on Appellant having caused J.A.’s injury. On May 27, 2004, however, 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.

We recognize that the first inquiry under Davis contemplates that nontestimonial statements are those made in order “to enable police assistance to meet an ongoing emergency,” and that Geist is not a police officer. As previously noted, however, the Davis Court construed the acts of 911 operators to be acts of the police on the basis that, even if 911 operators were not themselves law enforcement officers, they “may at least be agents of law enforcement when they conduct interrogations of 911 callers.” Davis, 547 U.S. at 823, 126 S.Ct. 2266. Similarly, we conclude that, in the instant case, Geist, who was contacted by hospital officials when J.A. was brought into the emergency room, and who was responsible *81for ensuring the safety of J.A. upon J.A.’s removal from the family home, should be construed to be an agent of law enforcement for purposes of a Davis analysis. Cf. Commonwealth v. Ramos, 367 Pa.Super. 84, 532 A.2d 465, 468 (1987) (per curiam) (in determining that a defendant should have been given Miranda warnings prior to questioning, while in police custody, by a CYS agent, the court noted that in fulfilling its purpose of providing protection for children from abuse, “CYS is not only a treatment agency, but is the investigating arm of the statewide system of Child Protective Services.”). Under these circumstances, we hold that A.A.’s statement to Geist was given in the context of an ongoing emergency, and thus, under Davis, was nontestimonial. In light of our conclusion that the Superior Court properly determined A.A.’s statement to Geist was given during an ongoing emergency, and, therefore, was nontestimonial under the first inquiry in Davis, we need not analyze A.A.’s statement under the second Davis inquiry, namely, whether the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution.

We next consider whether A.A.’s statement to Dr. Ryen was testimonial under Davis. Unlike A.A.’s statement to Geist, we cannot conclude 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. While we would thus need to address the second Davis inquiry with respect to A.A.’s statement to Dr. Ryen, we do not because we agree, as the Superior Court opined, that any possible 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. *82Katze, 540 Pa. 416, 658 A.2d 345 (1995) (Opinion in Support of Affirmance)). As we explained in Commonwealth v. Thornton,

[t]he doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-settled proposition that “[a] defendant is entitled to a fair trial but not a perfect one.”

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.13

*83We 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 nontestimonial under Davis, 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.14 Instantly, 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:

(a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of *84evidence, is admissible in evidence in any criminal or civil proceeding if:

(1) 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

(2) the child either:

(i) testifies at the proceeding; or

(ii) is unavailable as a witness.

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:

(a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in 18 Pa.C.S. Ch. 31 (relating to sexual offenses) performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal proceeding if:

(1) 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

(2) the child either:

(i) testifies at the proceeding; or

(ii) is unavailable as a witness.

42 Pa.C.S.A. § 5985.1(a) (2000) (emphasis added). The amended version thus eliminated the requirement that the offense be “performed with or on the child.” Appellant argues 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 *85laws contained in both the United States and Pennsylvania Constitutions.15

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 *86rules 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 Colder 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 application of the amended version of the TYHA in his case violated the fourth Colder 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:

The trial court, by applying the [TYHA] to the current controversy, was required to find A.A. was unavailable and was also required to find indicia of reliability. 42 Pa.C.S.A. § 5985.1. The record demonstrates the indicia of reliability ultimately found by the trial court was not the Tender Years Hearsay Act itself, in accordance with the aspect of the Roberts definition that allows reliability to be found in a “firmly rooted hearsay exception.”

[Rather], the trial court’s finding of reliability, which was not in the form of a “firmly rooted hearsay exception” and was premised on a finding of “particularized guarantees of trustworthiness,” satisfies Roberts, which was binding precedent when appellant was charged and remains binding precedent in analyzing the admission of non-testimonial hearsay today. Thus, even if we assume arguendo the trial court’s application of the Act constitutes an ex post facto violation, this application is inconsequential, as the trial court simply could have applied Roberts and reached the identical result. There is no reason to reverse and remand, as the trial court could simply reach the same result by stating that it is applying Roberts.

Commonwealth v. Allshouse, 924 A.2d at 1226-27 (footnote omitted). We hold that Appellant is not entitled to relief on *87the basis of his ex post facto claim, albeit for different reasons than relied upon by the Superior Court.16

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:

Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefore than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed. The crime for which the present defendant was indicted, the punishment prescribed therefore, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would *88authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but-leaving untouched the nature of the crime and the amount or degree of proof essential to conviction-only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged.

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:

[W]e adjudge that the statute of Missouri relating to the comparison of writings is not ex post facto when applied to prosecutions for crimes committed prior to its passage. If persons excluded upon grounds of public policy at the time of the commission of the offense, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri *89statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offense. Nor can the new rule introduced by [it] be characterized as unreasonable; certainly not so unreasonable as materially to affect the substantial rights of one put on trial for crime. The statute did not require “less proof, in amount or degree,” than was required at the time of the commission of the crime charged upon him. It left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state, as a condition of its right to take the life of an accused, must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt.... The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused.... We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute, nor that the rule established by that statute entrenched upon any of the essential rights belonging to one put on trial for a public offense.

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 *90unless (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:

A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The requirement that the victim inform another person of an alleged offense does not apply if the victim was younger than 14 years of age at the time of the alleged offense.

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 pre1993 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 Iiopt, 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.

*91The 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 Colder 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 Colder. With respect to the merits of the case before it, the Court concluded:

Article 38.07 is unquestionably a law “that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Under the law in effect at the time the acts were committed, the prosecution’s case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim’s testimony and corroborative evidence. The amended law, however, changed the quantum of evidence necessary to sustain a conviction; under the new law, petitioner could be (and was) convicted on the victim’s testimony alone, without any corroborating evidence. Under any commonsense understanding of Calder’s fourth category, Article 38.07 plainly fits. Requiring only the victim’s testimony to convict, rather than the victim’s testimony plus other corroborating evidence is surely “less testimony required to convict” in any straightforward sense of those words.

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

After careful consideration, 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, and we conclude, 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 *92not a sufficiency rule, as it does not address the type of evidence sufficient to support a conviction. Unlike the amendment to Art. 88.07 of the Texas Code of Criminal Procedure challenged in Cannell, 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 Cannell, the amendment did not allow Appellant to be convicted on less, or different evidence.17 *93Thus, 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.