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In Raboin, the Supreme Court held that nearly all of a child sexual assault victim's forensic interview was improperly admitted "in rebuttal pursuant to Pennsylvania Rule of Evidence 106."
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No. 9 WAP 2020
09-07-2021
COMMONWEALTH of Pennsylvania, Appellee v. Thomas August RABOIN, Appellant
Frank P. Cervone, Esq., for Support Center for Child Advocates, A Child's Place Child Advocacy Center, Aequitas, Center for Child Justice/Blair County Children's Advocacy Center, Center for Children's Justice, Johnston-Walsh, Lucille, The Children's House Child Advocacy Center, Child Advocacy Center of Clearfield County, Children's Resource Center, Family Support Line of Delaware County, Kay's Cottage HAVIN Inc., KidsVoice, Mercer County Behavioral Health Commission, Mission Kids Child Advocacy Center, Children's Advocacy Center of Monroe County, National Children's Advocacy Center, National Children's Alliance, Network of Victim Assistance, Over The Rainbow Children's Advocacy Center, Pennsylvania Chapter of Children's Advocacy Centers & Multidisciplinary Teams, Pennsylvania Children and Youth Administrators Association, Inc., Pennsylvania Coalition Against Rape, Philadelphia Children's Alliance, and Zero Abuse Project, Amici Curiae. Michael F. J. Piecuch, Esq., Snyder County DA's Office, Sarah Ann Wilson, Esq., Pike County District Attorney's Office, for Pennsylvania District Attorneys Association, 2929 N Front St. Harrisburg PA 17110, Amicus Curiae. Peter Rosalsky, Esq., for Defender Association of Philadelphia, Amicus Curiae. Robert E. Mielnicki, Esq., for Appellant. Francesco Lino Nepa, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.
Frank P. Cervone, Esq., for Support Center for Child Advocates, A Child's Place Child Advocacy Center, Aequitas, Center for Child Justice/Blair County Children's Advocacy Center, Center for Children's Justice, Johnston-Walsh, Lucille, The Children's House Child Advocacy Center, Child Advocacy Center of Clearfield County, Children's Resource Center, Family Support Line of Delaware County, Kay's Cottage HAVIN Inc., KidsVoice, Mercer County Behavioral Health Commission, Mission Kids Child Advocacy Center, Children's Advocacy Center of Monroe County, National Children's Advocacy Center, National Children's Alliance, Network of Victim Assistance, Over The Rainbow Children's Advocacy Center, Pennsylvania Chapter of Children's Advocacy Centers & Multidisciplinary Teams, Pennsylvania Children and Youth Administrators Association, Inc., Pennsylvania Coalition Against Rape, Philadelphia Children's Alliance, and Zero Abuse Project, Amici Curiae.
Michael F. J. Piecuch, Esq., Snyder County DA's Office, Sarah Ann Wilson, Esq., Pike County District Attorney's Office, for Pennsylvania District Attorneys Association, 2929 N Front St. Harrisburg PA 17110, Amicus Curiae.
Peter Rosalsky, Esq., for Defender Association of Philadelphia, Amicus Curiae.
Robert E. Mielnicki, Esq., for Appellant.
Francesco Lino Nepa, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE MUNDY I. Introduction
In this appeal by allowance, we consider whether the Commonwealth was permitted to introduce nearly all of a child sexual assault victim's forensic interview in rebuttal pursuant to Pennsylvania Rule of Evidence 106. See Pa.R.E. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time."). We conclude that introduction of the interview on this basis was improper and remand for the Superior Court to consider, as the trial court initially concluded, whether the interview was nonetheless admissible as a prior consistent statement under Pa.R.A.P. 613(c). , We therefore reverse and remand to the Superior Court for further consideration.
Pennsylvania Rule of Evidence 613(c) provides as follows:
(c) Witness's Prior Consistent Statement to Rehabilitate. Evidence of a witness's prior consistent statement is admissible to rehabilitate the witness's credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness's denial of explanation.
Pa.R.E. 613(c).
Following oral argument, Petitioner filed an Application for Post-Submission Filing Pursuant to Pa.R.A.P. 2501. We hearby grant this motion and note it was considered in reaching our decision in this matter.
II. Facts and Procedural Background
In January 2011, Appellant Thomas August Raboin began dating K.B. He moved into K.B.’s home shortly thereafter, where she lived with her three minor daughters and multiple other individuals. At this time, K.B.’s eldest daughter ("the victim") was in kindergarten. Appellant moved out a few years later when the couple ended their relationship, at which point the victim was in second grade. During the victim's fourth-grade year, she disclosed to her mother that Appellant had sexually abused her while living in their home. She explained that on several occasions, Appellant summoned her into the shower and sexually assaulted her. K.B. immediately contacted the police, who arranged for a forensic interview.
The forensic interview was videotaped and observed by a detective behind a one-way mirror. During the interview, the victim recounted these instances of sexual abuse. She also explained several times that she complied with Appellant's requests because she was scared that he would hurt her, her sisters, or her mother. See Forensic Interview Transcript, 7/6/17, at 11, 32, 37-38. The victim also reported that Appellant was "really mean." Id. at 18. She also explained that Appellant would frequently "push [her] mom" and "slap her hands and push her to the ground. And I didn't tell anyone because I thought that if I did tell someone, he would try to hurt me or my mom again." Id. at 32.
Following this interview, the detective prepared a police report and an arrest warrant was issued. Appellant was subsequently arrested and charged with the following offenses: involuntary deviate sexual intercourse with a child, unlawful contact with a minor, indecent assault of a person less than thirteen years of age, endangering the welfare of a child, corruption of minors, and indecent exposure.
On March 9, 2018, Appellant proceeded to a jury trial. At trial, the victim testified that Appellant began sexually assaulting her in the shower sometime between kindergarten and second grade, but she could not recall the exact time period. She also stated that she got in the shower with Appellant out of fear "[b]ecause he was much taller and had once pushed [her] mother." N.T. Trial, 3/9-12/18, at 38. The victim also testified that she was afraid to tell anyone about the abuse because she believed Appellant might hurt her. Id. at 48. On cross-examination, Appellant's attorney attempted to draw inconsistencies between the victim's forensic interview and her trial testimony regarding when the abuse occurred and the time period in which Appellant lived in the family's home. Id. at 68-73, 79-80.
The Commonwealth also called as witnesses K.B. and the detective who observed the forensic interview. Both corroborated the victim's trial testimony to the extent she relayed the same information concerning the assault when questioned by them. During cross-examination of the detective, Appellant's attorney similarly attempted to draw inconsistencies between the victim's forensic interview and the detective's trial testimony. Id. at 159-63. He inquired whether the victim ever mentioned during the forensic interview that Appellant would call out to the victim from the shower and ask her to come in, to which the detective replied, "I don't think so." Id. at 160. The detective also recalled the victim stating that the abuse took place when she was in kindergarten. Defense counsel challenged this by asking the detective whether he was certain and proceeded to confront him with the police report prepared based on the victim's forensic interview. The report stated that "a former boyfriend was in the bathroom when [the victim] was eight years old and sexually assaulted her numerous times." Id. at 161. The detective responded by explaining he was unsure how old children are in kindergarten, which is why he also included in the report, "See DVD for full interview." Id.
Appellant testified in his own defense at trial, denying the allegations. At the conclusion of Appellant's presentation of evidence, the Commonwealth requested to play the victim's forensic interview in rebuttal on the basis that it was a prior consistent statement. See Pa.R.E 613(c)(1). Appellant objected to the admission of the interview in its entirety. Then, following a lengthy in-chambers discussion involving specific objections to portions of the forensic interview, the trial court largely permitted its introduction, aside from several pages that the court reasoned were hearsay. The trial court's rationale for allowing introduction of the forensic interview was that it constituted a prior consistent statement and rehabilitative evidence. At the conclusion of the video, the trial court instructed the jury that "the forensic interview ... offered by the Commonwealth [is] ... what is known as a prior consistent statement, and as such, it is to be used by you only for the purpose of helping you to determine the credibility of [the victim] as she testified here in court. It is not to be used by you for proof of the truth of any matter stated here in court. It is not to be used by you for proof of the truth of any matter stated in her forensic interview." N.T. Trial, 3/9-12/18, at 243.
The jury ultimately convicted Appellant of involuntary deviate sexual intercourse with a child, unlawful contact with a minor, indecent assault of a person less than thirteen years of age, endangering the welfare of a child, corruption of minors, and indecent exposure. He was sentenced to 168 to 416 months’ imprisonment to be followed by five years’ probation. Appellant filed post-sentence motions, which the trial court denied. He then filed a timely notice of appeal claiming, inter alia , that the trial court erred in admitting the victim's forensic interview as rebuttal evidence.
In its Pa.R.A.P 1925(a) opinion, the trial court explained that it deemed the forensic interview admissible as a prior consistent statement based on two cases, Commonwealth v. Willis , 380 Pa.Super. 555, 552 A.2d 682 (1988), and Commonwealth v. Hunzer , 868 A.2d 498 (Pa. Super. 2005), which had since been called into question by, inter alia , Commonwealth v. Bond , 190 A.3d 664 (Pa. Super. 2018). Trial Ct. Op., 11/14/18, at 10. It reasoned, however, that this decision was harmless. Id. The court explained that Appellant had an opportunity to review the interview during pretrial discovery and was also afforded an opportunity to, and did in fact, cross-examine the victim at trial concerning the reasons for her delay in reporting the assaults. Id. at 10-11. The court maintained that admission of the interview was cumulative and harmless as a result. Id. at 11.
Appellant appealed to the Superior Court, claiming the trial court erred in admitting the forensic interview during the Commonwealth's rebuttal. He specifically averred the interview was inadmissible as a prior consistent statement because it did not predate the victim's initial accusations, which Appellant claimed were false. In support of this position, Appellant relied on Bond , decided only two days following the trial court's imposition of sentence, to argue the forensic interview was inadmissible under Rule 613(c).
Bond was accused of sexually assaulting his girlfriend's daughter. Later that day, the child wrote a note detailing what had happened and gave it to her great aunt. The great aunt then informed the child's mother, who called the police. The child was later interviewed by a forensic interview specialist. At trial, defense counsel extensively cross-examined the victim regarding the contents of the video by going through the transcription line by line. Id. at 674. This prompted the prosecutor to seek admission of a thirteen-minute portion of the interview in which the victim discussed the alleged assault on the basis that it was a prior consistent statement under Rule 613(c). Id. Before the Superior Court, Bond claimed that the trial court erred in permitting the jury to view a child sexual assault victim's forensic interview on the basis that its contents constituted a prior consistent statement. Id. at 667. Bond specifically argued the interview was not a prior consistent statement, claiming the child fabricated the sexual assault allegations from the beginning. He therefore claimed admission of the victim's forensic interview would not have served any rehabilitative purpose under Rule 613(c). Id. at 668-69.
The Bond court concluded that the trial court erred by admitting the interview as a prior consistent statement because that interview did not predate the initial, allegedly fabricated accusation. Id. at 670. The court nonetheless deemed this error harmless, reasoning that defense counsel chose to cross-examine the victim on all pertinent parts of the interview transcript prior to the Commonwealth moving for its admission, thus admission of the actual video was cumulative and harmless. Id. at 673. The Superior Court further concluded that the video was admissible under Rule 106. Id. It explained that "[g]iven the extent to which defense counsel relied on the [video] during her cross-examination of the victim, the prosecution was entitled to introduce [the victim's] entire account of the assault in order to provide full context." Id. at 674. In the instant matter, the Superior Court affirmed in a unanimous, unpublished memorandum. Commonwealth v. Raboin , 976 WDA 18, 2019 WL 4072306 (August 29, 2019) (unpublished memorandum). The court recognized that in Bond the victim's forensic interview was deemed inadmissible as a prior consistent statement because the child's statements in the interview were not made before the alleged fabrication. Id. at *3 (citing Bond , 190 A.3d at 670 ). It then explained that the Bond court nonetheless concluded the victim's forensic interview was admissible as a remainder of a recorded statement pursuant to Rule 106. Id. (citing Bond , 190 A.3d at 673 ) ("Given the extent to which defense counsel relied on the [i]nterview [v]ideo during her cross-examination of the victim, the prosecution was entitled to introduce [the victim's] entire account of the assault in order to provide full context."). Id. at *3. The court explained that similar to Bond , present defense counsel thoroughly cross-examined both the victim and the assigned detective regarding the contents of the interview. Id. The Commonwealth was therefore permitted to admit the victim's "entire account of the assault in order to provide full context." Id. The Superior Court never addressed whether the victim's forensic interview was admissible as a prior consistent statement, instead relying on the alternative holding in Bond which found the victim's forensic interview admissible under Rule 106. Id. (citing Commonwealth v. Fant , 637 Pa. 135, 146 A.3d 1254, 1265 n.13 (2016) (explaining "appellate courts are not limited by the specific grounds raised by the parties or invoked by the court under review, but may affirm for any valid reason appearing of record") (citations omitted)). The Superior Court therefore affirmed Appellant's judgment of sentence.
Appellant filed a petition for allowance of appeal, which we granted to consider the following question:
Where the Commonwealth is permitted a near blanket introduction of [the] videotaped forensic examination of a child victim in a sexual assault case, during rebuttal, and thus not contemporaneous with any limited reference to said forensic examination by the defense, where numerous unfairly prejudicial statements are contained in the forensic examination, is such appropriate under the rule of completeness set [forth] in Pa.R.E. 106 ?
Commonwealth v. Raboin, ––– Pa. ––––, 233 A.3d 672 (2020) (per curiam).
III. Parties’ Arguments
a. Admission of Forensic Interview under Rule 106
To begin, Appellant focuses on the language of Rule 106, explaining it contains three requirements. Appellant's Brief at 29. A party must first introduce a writing or recorded statement. Id. Additionally, the portion of the writing or recorded statement introduced must create a misleading impression due to it being taken out of context. Id. at 29-30. Finally, the opposing party may then correct that misleading impression by introducing all or part of the writing or recorded statement contemporaneously with the proffered part. Id. With these requirements in mind, Appellant maintains that the Superior Court improperly relied on Bond to conclude the interview was admissible under Rule 106. Id. at 31-32.
He first avers that there was no introduction of the interview during cross-examination that would have triggered Rule 106. Id. at 30. He explains that unlike Bond , present defense counsel did not question the victim with the interview transcript line by line for impeachment purposes, but merely asked questions concerning whether she remembered telling the forensic interviewer certain information. Id. at 31-32. Appellant also notes that in Bond , the Commonwealth moved to play the interview immediately following cross-examination. Id. Here, however, the Commonwealth waited until rebuttal and utilized the interview to supplement the victim's testimony. Id. Finally, Appellant notes that in Bond , the trial court permitted a limited portion of the victim's interview, as opposed to allowing nearly the entire interview in this case. Id.
Appellant next focuses on the contemporaneous requirement in greater detail. Id. at 33. He explains that Rule 106 requires a party to correct a misleading impression created by the introduction of a partial writing or recording "at the same time and not some later time" that portion is introduced. Id. at 33-34. This is because the entire purpose of the rule "is to correct instances of distortion caused by the introduction of a partial writing or recording that has been taken out of context." Id. at 34. Such can only be remedied by the timely introduction of all or part of the writing or recorded statement. Id.
Appellant provides support for this position by relying on Commonwealth v. Baumhammers , 599 Pa. 1, 960 A.2d 59 (2008). Appellant's Brief at 35. Baumhammers was capitally tried, convicted, and sentenced to death for the murder of five victims. Baumhammers , 960 A.2d at 67. At trial, the Commonwealth introduced into evidence during the rebuttal phase of the guilt phase of trial, a recording of a telephone conversation in which Baumhammers’ parents accused him of being a racist. Id. at 88. Later, during the penalty phase, Baumhammers sought to introduce a portion of the same telephone call where the parents expressed their opinion that Baumhammers’ killing spree was due to mental illness, which the trial court denied. Id. On appeal to this Court, Baumhammers asserted the trial court abused its discretion by precluding this evidence under Rule 106. Id. This court concluded that the trial court did not err in precluding this evidence, as Baumhammers moved for its admission well after its original publication. Id. at 89-90. Appellant argues that the Commonwealth's introduction of the interview during rebuttal was similarly too far removed from defense counsel's initial cross-examination of the victim. Appellant's Brief at 35-36.
Appellant next addresses the extent to which the interview was admitted on rebuttal. Id. at 36. He notes that in Commonwealth v. Passmore , 857 A.2d 697, 712 (Pa. Super. 2004), the court stated " Rule 106 does not mandate a blanket admission of all correspondence and related writings[,]" but rather its purpose is to correct a misleading impression" Appellant's Brief at 37. He claims that the trial court erred by permitting the Commonwealth to play nearly the entire interview, considering Rule 106 permits the adverse party to introduce only the portion of the writing or recording necessary to correct a misleading impression made by admission of another portion of the writing or recording. Id. at 38. Appellant maintains that none of the questions posed to the victim or the detective created a misperception requiring introduction of the interview in its near entirety. Id. He then underscores the fact that defense counsel's cross examination sought to resolve inconsistencies between the victim's trial testimony and answers given during the forensic interview and also attempted to clarify how old the victim was when she was assaulted. Id. at 40. Counsel thus referenced limited portions of the interview. Id. He further argues it was the Commonwealth's burden under Rule 106 to demonstrate any misleading impression created by this questioning required admission of other portions of the interview, which it did not. Id. at 41 (citing Commonwealth v. Bryant , 57 A.3d 191 (Pa. Super. 2012) ).
The Defender Association of Philadelphia ("Defender Association") filed an amicus brief in support of Appellant. In its view, the Commonwealth failed to establish its trial-level burden that the interview was admissible under Rule 106. The Commonwealth neither explained what misleading impression was to be remedied by the admission of the video, nor did it identify which portions of the interview were necessary to correct any misleading impression. The Defender Association further asserts that even if the interview had the effect of correcting any misleading impression, the Commonwealth should not have been permitted to admit nearly the entire interview. The Defender Association further maintains that the interview contained additional information that was not elicited until rebuttal, resulting in prejudice to Appellant.
The Commonwealth alternatively argues that the interview was indeed admissible under Rule 106. Commonwealth's Brief at 14. The Commonwealth focuses on the fact that defense counsel repeatedly questioned both the victim and the detective with regard to the contents of the forensic interview. Id. at 14-23. Based on this extensive questioning, the Commonwealth asserts that the Superior Court correctly concluded the interview was admissible to provide its full context under Rule 106. Id. at 23.
The Commonwealth first rejects Appellant's contention that there was no initial introduction of the transcript on cross-examination that would trigger Rule 106. It explains that whether defense counsel actually moved the transcript into evidence is immaterial. In support of this argument, the Commonwealth relies on Rainey v. Beech Aircraft Corp. , 784 F.2d 1523, 1529 n.11 (11th Cir. 1986), reinstated on reh'g en banc , 827 F.2d 1498 (11th Cir. 1987), rev'd on other grounds , 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). In Rainey , the spouses of a navy flight instructor and student who died in a plane crash brought wrongful death suits in district court. Rainey , 784 F.2d at 1525. The only issue disputed at trial was the cause of the crash. Id. One issue on appeal was whether the district court erred by restricting the testimony of John Rainey, husband of the deceased flight instructor. Id. at 1528. At trial, the aircraft manufacturer called Rainey as an adverse witness and questioned him concerning a letter written to a naval investigator which included statements indicating the crash was indeed due to pilot error. Id . During Rainey's cross-examination, however, Rainey's attorney was prohibited from asking questions referring to a different portion of the same letter in which Rainey expressed that the most probable primary cause of the crash was some kind of mechanical error. Id. at 1529. The Eleventh Circuit found the defendant's questions concerning Rainey's letter "tantamount to the introduction of the letter into evidence." Id. at 1529 n.11. It further held that the district court erred by prohibiting cross-examination about other portions of the letter which would have served to correct the misleading impression created by the aircraft manufacturer concerning Rainey's opinion as to the cause of the crash. Id. at 1529-30. Like Rainey , the Commonwealth contends that defense counsel's repeated references to the interview were tantamount to its introduction. Commonwealth's Brief at 27. Accordingly, Appellant "cannot credibly argue that he had not introduced the forensic interview such that Rule 106 was applicable, thereby allowing the [Commonwealth] to counter the misleading impression that he had created through cross-examination." Id.
The Commonwealth next focuses on Appellant's assertion that the interview was not introduced at the same time as defense counsel's cross-examination to meet the timing requirement of Rule 106. Id. The Commonwealth begins by noting Rule 106 read differently when Baumhammers was decided. Id. Accordingly, Baumhammers is no longer persuasive in discerning the parameters of Rule 106. Id. The Commonwealth alternatively asserts that Baumhammers is distinguishable because it involved essentially two different proceedings – the guilt phase and the penalty phase of a capital trial – whereas the interview in question was introduced during the same proceeding, but in rebuttal. Id. at 28-29.
The Commonwealth next addresses Appellant's argument that Rule 106 does not permit a blanket introduction of the writing or recording at issue and that the trial court abused its discretion by allowing the Commonwealth to play almost all of the interview for the jury. Id. at 31. It explains that all parties met in chambers to discuss which portions of the interview should be admitted and excluded. Id. A large section of the recording was excluded as a result. Id. at 31-32. Moreover, the Commonwealth disagrees with Appellant's reading of Passmore . Id. at 32. While Passmore explains that Rule 106 does not require the blanket admission of a writing or recording, it does not preclude it either. Id. at 34. The questions posed by defense counsel "clearly implied that there were things said in that interview that contradicted what had been said from the witness stand." Id. Thus, the Commonwealth was permitted to correct that misleading impression by playing the interview. Id.
The Commonwealth also challenges Appellant's assertion that no misleading impression was created by defense counsel's cross-examination of the victim and the detective. Indeed, Appellant acknowledges that one of the bases for cross-examining the victim was to clarify inconsistencies between her trial testimony and the interview. Even so, the Commonwealth avers that defense counsel's rationale for the questions asked is immaterial because they "could have no other effect but to suggest to the jurors that [the victim's] interview called into doubt her allegations of sexual abuse against the defendant." Id. at 35.
In addition to being admissible under Rule 106, the Commonwealth maintains that Appellant, through defense counsel's actions, opened the door to the introduction of the interview. Id. at 36. In support of this argument, the Commonwealth relies on Commonwealth v. Lettau , 604 Pa. 437, 986 A.2d 114 (2009). Id. Lettau was charged with theft-related offenses and testified in his defense at trial. Lettau , 986 A.2d at 115. He indicated that he provided Trooper Fagley, the investigating officer, with all known information and had been cooperative throughout the investigation. Id. at 116. The Commonwealth called Fagley again to rebut Lettau's testimony. Id. Fagley explained that Lettau was uncooperative, refused to provide certain banking information, and refused to provide a statement. Id. Defense counsel objected and moved for a mistrial, asserting that Fagley's testimony concerning Lettau's refusal to provide a statement was an improper use of his right to remain silent. Id. The Superior Court vacated Lettau's judgment of sentence after concluding the prosecution's use of Lettau's silence was improper. Id. at 117. This court reversed, explaining that this evidence "represented a fair response to a defense tactic of portraying [Lettau] as cooperative" and was admissible for impeachment purposes under the law. Id. at 121. Similarly, defense counsel's repeated questions concerning what she did or did not say in the forensic interview implied that she provided contrary accounts of the sexual assault in the forensic interview versus trial. Commonwealth's Brief at 37-38. The Commonwealth was therefore permitted to respond to such insinuations. Id. at 38.
The Pennsylvania District Attorneys Association ("PDAA") filed an amicus brief in support of the Commonwealth. It maintains that the forensic interview was admissible as a prior consistent statement under Rule 613(c) because defense counsel's cross-examination of the victim suggested she fabricated additional details of the sexual assault during trial that were not disclosed in the initial forensic interview. Thus, the instant case is distinguishable from Bond , where the victim was accused of fabricating sexual assault allegations in the forensic interview itself. The PDAA alternatively contends the interview was admissible under Rule 106 to combat defense counsel's implication that the victim's trial testimony was different from that contained in the forensic interview. The Support Center for Child Advocacy et al. also filed an amicus brief in support of the Commonwealth, agreeing that the victim's forensic interview was admissible under Rule 106. It additionally writes to stress the validity of such interviews, which are scientifically designed to elicit truthful and accurate accounts sexual assaults and protect victims from additional trauma.
b. Harmless Error
Appellant asserts the Commonwealth is unable to demonstrate that the near-blanket admission of the victim's forensic interview was harmless beyond a reasonable doubt under any of the categories identified by our case law. Appellant's Brief at 41 (citing Commonwealth v. Laich , 566 Pa. 19, 777 A.2d 1057, 1062-63 (2001) ). Appellant first asserts the introduction of the interview was extremely prejudicial because it painted him as a scary, mean, and physically abusive person, which likely impacted the jury's decision to convict. Id. at 42. He claims the prejudicial effect was overwhelming, considering this was the last evidence the jury heard before retiring to deliberations. Id. He next avers that the interview was not merely cumulative of other evidence introduced at trial, but included evidence introduced for the first time during rebuttal and afforded no opportunity for cross-examination. Id. at 43. Appellant explains that "[b]ecause these statements were heard for the first time when the video was played, they are, by definition, not cumulative and they were not supported by any facts established by existing evidence." Id. Lastly, Appellant maintains that admission of the video was not so insignificant compared to other properly admitted evidence that it could not have contributed to the verdict. Id. He argues that the evidence presented at trial never conclusively resolved whether Appellant was living at the victim's home when the sexual abuse occurred. Id. He also notes that several witnesses, as well as himself, testified he was never alone with the victim. Accordingly, the evidence did not overwhelmingly establish his guilt. Id.
The Commonwealth maintains that even if the trial court's admission of the interview was improper, this error was nonetheless harmless. Commonwealth's Brief at 38. It proceeds under the theory that the evidence admitted through the interview "was merely cumulative of other untainted evidence that was substantially similar to the erroneously admitted evidence." Id. at 39 (citing Commonwealth v. Burno , 638 Pa. 264, 154 A.3d 764, 787 (2017) ). The Commonwealth explains that the victim's testimony demonstrated Appellant was capable of having committed sexual abuse and that the victim was scared to report it out of fear of Appellant's actions. Id. at 39-40. Accordingly, the Commonwealth asserts that "any statements from the interview that suggested that he was a dangerous person to be feared really added nothing to what the jury had already heard." Id. IV. Analysis
a. Admission of Forensic Interview under Rule 106
We generally review a trial court's decisions regarding the admissibility of evidence for an abuse of discretion. Commonwealth v. Johnson , 615 Pa. 354, 42 A.3d 1017, 1027 (2012) ("An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such a lack of support so as to be clearly erroneous."). This case, however, requires us to examine the language of our rules of evidence, implicating a question of law for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Brown , 617 Pa. 107, 52 A.3d 1139, 1176 (2012).
Pennsylvania Rule of Evidence 106, commonly referred to as the "rule of completeness," and its Comment provide:
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.
Comment : The rule is identical to F.R.E. 106. A similar principle is expressed in Pa.R.C.P. No. 4020(a)(4), which states: "If only part of a deposition is offered in evidence by a party, any other party may require the offering party to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts."
The purpose of Pa.R.E. 106 is to give the adverse party an opportunity to correct a misleading impression that may be created by the use of a part of a writing or recorded statement that may be taken out of context. This rule gives the adverse party the opportunity to correct the misleading impression at the time that the evidence is introduced. The trial court has discretion to decide whether other parts, or other writings or recorded statements, ought in fairness to be considered contemporaneously with the proffered part.
Pa.R.E. 106, Comment. The adverse party carries the burden of demonstrating that the remaining portion of the writing or recording is relevant. Commonwealth v. Bryant , 57 A.3d 191 (Pa. Super. 2012).
While the burden of demonstrating admissibility under Rule 106 is generally on the adverse party, the Commonwealth did not seek to introduce the forensic interview on this basis at trial, but rather as a prior consistent statement under Rule 613(c). The Superior Court deemed the interview admissible under Rule 106 on appeal. Accordingly, the Commonwealth did not present an argument for admitting the interview under Rule 106 at trial.
Rule 106 first requires the introduction of a writing or recorded statement. We disagree with Appellant that Rule 106 is only triggered when the writing or recording is formally introduced as an exhibit. Introduction may occur, as it did in this case, through extensive references to a written or recorded statement during the examination of a witness or multiple witnesses. Next, Rule 106 provides that the writing or recorded statement must create a misleading impression, thereby permitting the adverse party to seek admission of all or part of that or another writing or recording in order to provide context. Defense counsel's introduction of the forensic interview through extensive questioning on cross-examination created a misleading impression. While cross-examining the victim, defense counsel inquired several times whether the victim relayed certain information to the forensic interviewer. The form of these questions created an impression that the victim's trial testimony was at odds with or contained additional information than that relayed in the forensic interview. See N.T. Trial, 3/9-12/18, at 68-73, 79-80. Defense counsel similarly questioned the detective about the contents of the victim's forensic interview insinuating the same. Id . at 159-163. These lines of questioning permitted the Commonwealth to seek admission of additional portions of the forensic interview to provide the jury with a clear picture of the victim's statement.
Although some courts in our sister states require the formal introduction of a writing or recording under the rule of completeness, others do not. See, e.g. , State v. Cabrera-Pena , 361 S.C. 372, 605 S.E.2d 522 (2004) (finding that where state elects to use a witness to elicit portions of a conversation made by a defendant, the rule of completeness requires the defendant be permitted to inquire into the full substance of that conversation); State v. Beynon , 484 N.W.2d 898 (S.D. 1992) (holding that where defendant, while cross-examining police officer, introduced portion of officer's written statement describing the incident for identification purposes constituted introduction under rule of completeness); State v. Corella, 79 Hawai'i 255, 900 P.2d 1322 (Haw. Ct. App. 1995) (finding no difference for purposes of the rule of completeness between a writing introduced as trial exhibit and writing read into the record by counsel for purpose of determining admissibility of material "which ought in fairness to be considered contemporaneously" with the original writing).
Rule 106 also includes temporal and fairness requirements in that the responsive evidence be introduced "at the same time" as the proffered evidence and also limited to that which should be considered in fairness. Instantly, Rule 106 does not appear to authorize the near-blanket admission of the forensic interview on rebuttal. With respect to timing, Rule 106 permits an adverse party to require the introduction of all or part of a writing or recorded statement at the time the opposing party introduces evidence. The commentary following the rule indicates the timing component is in place to "give the adverse party the opportunity to correct the misleading impression at the time that evidence is introduced." Pa.R.E. 106 Comment. By requiring that the misleading impression is corrected in a timely fashion, "the rule of completeness protects litigants from the twin pitfalls of creative excerpting and manipulative timing." 1 WHARTON'S CRIMINAL EVIDENCE § 4:10 (15th ed.). Although we do not read this to mean the simultaneous introduction of evidence, in order to have complied with Rule 106 the evidence in this case should have come in at or near the time of defense counsel's questioning of the victim or the detective. This could have occurred, for example, during defense counsel's cross-examination of the victim and detective or on re-direct.
We further recognize that Rule 106 neither precludes nor mandates the blanket introduction of all correspondence or related writings. See Pa.R.E. 106 Comment; Passmore , 857 A.2d at 712. "The word fairness in state and federal rules dealing with the introduction of evidence pursuant to the rule of completeness usually means relevant to the admitted portions or fragments of writings or recorded statements." 1 WHARTON'S CRIMINAL EVIDENCE § 4:10 (15th ed.). Rule 106 therefore merely allows introduction of that necessary to correct the misleading impression. Instantly, the trial court permitted the Commonwealth to present all but roughly two pages of the more than forty page forensic interview transcription, although this decision was based on the understanding that the interview was a prior consistent statement. Although some of the interview served to correct the misleading impression created during defense counsel's cross-examination of the victim and detective, the vast majority of it did not. For these reasons, we conclude that the trial court erred in admitting nearly all of the victim's forensic interview pursuant to Rule 106. Given these clear violations of Rule 106 and its purpose, we decline to find the trial court's error in this respect harmless.
We reject the Commonwealth's assertion that Appellant, through defense counsel's actions, opened the door for introduction of the forensic interview. Lettau stands for the proposition that the Fifth Amendment protection against self-incrimination does not prohibit the use of a defendant's silence from being used for impeachment purposes where the defendant chooses to testify at trial. Lettau , 986 A.2d at 117. That set of facts is not implicated in this case.
Finally, with regard to the parties’ focus on Bond , the Superior Court's decision in that case is not binding on this Court. The instant circumstances are also factually distinct from those present in Bond , particularly with respect to the temporal and fairness requirements of Rule 106. There, the Commonwealth moved for the introduction of the video following defense counsel's cross-examination of the victim, rather than waiting until a later point in the trial, such as rebuttal. Bond , 190 A.3d at 674. The Commonwealth also limited its request to play the interview to the thirteen minute portion during which the victim discussed the alleged assault, as opposed to a near-blanket admission. Id.
V. Admission of Forensic Interview under Rule 613(c)
As explained previously, the trial court permitted the Commonwealth to introduce the victim's forensic interview during rebuttal on the basis that it constituted a prior consistent statement under Rule 613(c). In its Rule 1925(a) opinion, the trial court later concluded that this was improper and instead found the statement admissible as a remainder of a writing or recording under Rule 106. Appellant preserved a challenge to the admissibility under Rule 613(c) in his appeal to the Superior Court. The Superior Court, however, declined to address the admissibility of the statement under Rule 613(c), and instead relied on Bond to conclude it was admissible under Rule 106 irrespective of whether it was a prior consistent statement. Although we have found the forensic interview to be inadmissible under Rule 106, the question of its admissibility under Rule 613(c) remains unanswered. Because of this, we find it appropriate in this instance to remand this matter to the Superior Court to address the admissibility of the forensic interview under Rule 613(c).
VI. Conclusion
In sum, we hold that the near-blanket admission of the forensic interview during rebuttal under Rule 106 was improper and remand this matter to the Superior Court to address its admissibility under Rule 613(c).
Chief Justice Baer and Justices Todd and Dougherty join the opinion.
Justice Donohue files a concurring and dissenting opinion in which Justices Saylor and Wecht join.
Justice Wecht files a concurring and dissenting opinion.
JUSTICE DONOHUE, concurring and dissenting
The trial court permitted the Commonwealth, in the rebuttal stage of trial, to play substantial portions of a videotaped interview between a forensic specialist and the child victim ("A.W."). I agree with the Majority that Pennsylvania Rule of Evidence 106, colloquially known as the rule of completeness, does not justify admission of this evidence but concur because in my view Raboin's cross-examination of his accuser did not create any misleading or otherwise prejudicial misimpression as required by the rule. I disagree with the Majority that the appropriate course is to remand to the Superior Court to determine whether this evidence was admissible as a prior consistent statement pursuant to Rule 613. In the appeal to the Superior Court, the Commonwealth declined to defend the admission of the evidence on that alternative ground despite the fact that the trial court initially relied on it. The Commonwealth argued, both in the Superior Court and in this Court, only that Rule 106 applies, and, in the alternative, that any error in introducing the evidence was harmless beyond a reasonable doubt. In my view, the trial court erred by permitting the Commonwealth to play the forensic interview of the child witness and that playing the interview in rebuttal, among other reasons, rendered the error not harmless beyond a reasonable doubt. I would thus grant a new trial.
I.
Rule 106 does not apply because counsel did not mislead the jury in the manner contemplated by the rule
The Commonwealth argues that Rule 106 would have independently justified the admission of the videotape due to counsel's cross-examination of A.W. and a detective, which if correct means that the evidence was not erroneously introduced. The rule of completeness ensures that a party does not convey a misleading impression. A common method of challenging a witness's testimony is by showing they previously said something different than their testimony. Jenkins v. Anderson , 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) ("Use of such impeachment on cross-examination ... test[s] the credibility of witnesses by asking them to explain prior inconsistent statements and acts."). Rule 106 ensures that impeachment does not omit crucial context. "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time." Pa.R.E. 106.
I agree with the Majority that Rule 106 does not justify introducing this evidence. However, the Majority suggests that playing the videotape, or at least the undefined portions which would have been relevant based on an actual Rule 106 claim, would have been proper "at or near the time of defense counsel's questioning of the victim or the detective." Majority Op. at 423. While I agree with the timing requirement, in my view, Rule 106 has no applicability under the circumstances presented.
As Raboin notes, the procedural posture of this case presents analytical difficulties because the party invoking Rule 106 bears the burden of showing how the material is relevant. See Commonwealth. v. Bryant , 57 A.3d 191, 196 (Pa. Super. 2012) (concluding that trial court did not err in excluding other pages of victim's diary; "The burden is on Appellant to specify what the relevancy of the rest of the diary would have been and how it would have aided the jury's understanding.").
Pa.R.E. 106 (emphasis added).
As the Majority explains, the trial judge did not cite Rule 106. Insofar as the rule is designed to ensure fairness, the Commonwealth's argument that the videotape was needed to combat a misleading impression obviously escaped the notice of its prosecutor, who perceived no such need. The Majority attempts to determine if the admission of evidence would have been justifiable for equitable reasons as opposed to legal reasons, something that the right-for-any-reason doctrine seems ill-equipped to do. See Commonwealth v. Bryant , 57 A.3d 191, 196 n.6 (Pa. Super. 2012) (acknowledging that completeness objections are "subject to the trial court's discretionary authority to determine the scope and limits of the right in the case at hand") (quotation marks and citation omitted). Because the prosecutor did not invoke the rule of completeness, it is difficult if not impossible to determine what "fairness" demanded. Nevertheless, I accept for purposes of disposition that the right-for-any-reason doctrine would allow a court to affirm.
"In admitting the statements, the Court relied upon Commonwealth v. Willis , 380 Pa.Super. 555, 552 A.2d 682, 691 (1988) [(en banc)] and Commonwealth v. Hunzer , 868 A.2d 498 (Pa. Super. 2005)." Trial Court Opinion, 11/14/2018, at 9. Broadly speaking, those cases endorsed the notion that fact-finders would see children as inherent fabulists and prone to flights of fancy and exaggeration, thereby permitting the introduction of prior consistent statements "to corroborate even unimpeached testimony of child witnesses[.]" Willis , 552 A.2d at 692. Hunzer approvingly quoted Willis in allowing similar evidence.
Two days after Raboin's sentencing, the Superior Court issued Commonwealth v. Bond , 190 A.3d 664 (Pa. Super. 2018), which limited Willis on the grounds the opinion pre-dated the enactment of Rule 613. The Bond Court explained that Hunzer ’s reliance on Willis was dicta as the prior statements were admissible under the facts of Hunzer to rebut an allegation of recent fabrication. The trial court concluded that the Bond decision established its evidentiary ruling was erroneous and "assert[s] that the harmless error doctrine applies." Trial Court Opinion, 11/14/2018, at 10.
See , e.g ., Rials v. Duckworth , 822 So. 2d 283, 287 (Miss. 2002) ("Rule 106 does not permit the introduction of an entire document when a witness was, as here, only cross-examined by reading from a writing and no part of that document was introduced into evidence."); State v. Bauer , 598 N.W.2d 352, 368 (Minn. 1999) ("Minn. R. Evid. 106 is not applicable unless portions of the actual recording have been introduced into evidence.").
However, I conclude that Rule 106 does not apply, because counsel's cross-examination did not create the conditions contemplated by the rule. By way of comparison, the United States Supreme Court's decision in Beech Aircraft Corp. v. Rainey , 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), offers an example of why Rule 106 exists. That suit involved an airplane crash, where "the only seriously disputed question was whether pilot error or equipment malfunction had caused the crash." Id . at 157, 109 S.Ct. 439. The defense called an individual as an adverse witness, who admitted that he had authored a letter agreeing with certain facts pointing to pilot error. On cross-examination, plaintiff's counsel attempted to ask about other portions of the letter establishing that the witness nonetheless believed an equipment malfunction was to blame. The trial court sustained an objection by defense counsel that the question improperly called for an opinion.
The high Court observed that "the concerns underlying Rule 106 are relevant here, but, as the general rules of relevancy permit a ready resolution to this litigation, we need go no further in exploring the scope and meaning of Rule 106." Id . at 172, 109 S.Ct. 439. The Court said, "We have no doubt that the jury was given a distorted and prejudicial impression of [the] letter. The theory ... was that the accident was the result of a power failure, and, read in its entirety, his letter ... was fully consistent with that theory." Id . at 170, 109 S.Ct. 439. The Court further explained that the misleading cross-examination plausibly conveyed to the jury that the witness "did not believe in his theory of [malfunction] and had developed it only later for purposes of litigation." Id . at 171, 109 S.Ct. 439.
Pennsylvania's Rule 106 is "identical to F.R.E. 106." Pa.R.E. 106 cmt.
See Pa.R.E. 106, cmt. ("The purpose of Pa.R.E. 106 is to give the adverse party an opportunity to correct a misleading impression that may be created by the use of a part of a writing or recorded statement that may be taken out of context."); cf. State v. Barr , 146 N.M. 301, 210 P.3d 198, 206 (2009) (noting that the primary purpose of the rule of completeness "is to eliminate misleading or deceptive impressions created by creative excerpting"), overruled on other grounds by State v. Tollardo , 275 P.3d 110 (N.M. 2012).
There was no comparably discernable misleading impression of the forensic interview that the Commonwealth needed to address. According to the Commonwealth, the jury might have been left with the impression that A.W. was not telling the truth. See Commonwealth's Brief at 11 ("Regardless, given that the prosecution was attempting to counter the insinuations made by defense counsel ... that the victim's accusations against Raboin were untrue ... ."); id . at 27 (arguing that defense counsel "created in the minds of the jurors the suggestion that there was something about that interview that called into doubt the allegations that the victim had made from the witness stand."). At the risk of stating the obvious, the entire point of this criminal trial was to determine if the victim's accusations were true. This case presented the jury with a straightforward task of determining whether A.W., the only fact witness with any direct knowledge of these crimes, credibly testified that Raboin sexually assaulted her. Any cross-examination of A.W. is by definition insinuating that the victim's accusations are untrue. That is defense counsel's constitutional duty. The Commonwealth's position, taken to its logical end, means that the rule of completeness permits the introduction of any kind of prior statement that corroborates, in any sense, the "accusations" against a defendant.
As Raboin observed at oral argument, Rule 106 is rarely invoked in criminal cases. This may be because, as Raboin briefly references, a defendant has the right to confront his accuser. See , e.g. , Crawford v. Washington , 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ("Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability’ "); In re N.C. , 629 Pa. 475, 105 A.3d 1199, 1214 (2014) ("It is undisputed that A.D.'s video-taped, forensic interview conducted at Western Pennsylvania Cares was testimonial under Crawford and its progeny[.]").
See Forensic Interview Transcript, 7/6/2017, at 18; id. at 31 ("[H]e wouldn't feed us."); id. at 32 ("He would always push my mom, and he would hurt her, you know? He would slap her hands and push her to the ground.").
Significantly, the Commonwealth fails to specify how the jury was misled by the questioning beyond suggesting that Raboin was not guilty, let alone how the videotape cured those prejudicial misimpressions. The Beech Aircraft Court pointed to a quite specific kind of misimpression: the jury would come away thinking that the witness had previously adopted a completely different opinion than the one he testified to, and that he later came up with an alternative theory solely for purposes of litigation. To put this case in Beech Aircraft terms, the cross-examination would need to convey that A.W. told the forensic interviewer that she was never sexually abused by Raboin and only later leveled the accusations for some other reason. The Commonwealth does not claim that is the case. Nor could it. Certainly, if Raboin had asked a clearly misleading question the Commonwealth would cite that. The exceedingly generic description of "misleading" cited by the Commonwealth and accepted by the Majority is simply incompatible with the purpose of Rule 106. As a result, I concur only in the disposition.
For example, in Commonwealth v. Giles , 182 A.3d 460 (Pa. Super. 2018), the victim was cross-examined regarding her forensic statement. Defense counsel asked, "Now, do you remember when you were interviewed by Dr. Susan Nathan, you told her that the first incident occurred in July?" Id . at 462. The victim said, "No," followed by counsel stating, "You don't remember that?" That cross-examination was clearly misleading. "We point out that nowhere in the transcript of the forensic interview does [the victim] ever mention that the first incident, or any of the incidents for that matter, occurred in July." Id . And while the issue in that case was whether the forensic interview was admissible as a prior consistent statement, it is telling that the Commonwealth fails to cite a comparable example of cross-examination that blatantly misrepresented what the witness actually said.
See N.T. at 243 ("[T]he forensic interview ... offered by the Commonwealth [is] ... what is known as a prior consistent statement, and as such, it is to be used by you only for the purpose of helping you to determine the credibility of [A.W.] as she testified here in court.").
II.
Rule 613 does not justify admission of the entire videotape
The Majority agrees that the trial court erred in admitting the evidence and further determines that introducing the evidence was not harmless beyond a reasonable doubt. Majority Op. at 424 ("Given these clear violations of Rule 106 and its purpose, we decline to find the trial court's error in this respect harmless."). That statement does not explain why the Majority is unconvinced that the error was not harmless, because the purpose of a rule is not a factor in a harmless error analysis. See Commonwealth v. Story , 476 Pa. 391, 383 A.2d 155, 164 (1978) ("We adopt the standard that an error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict."). The Majority therefore envisions a scenario in which this evidence, while deemed erroneously admitted under Rule 106 and not harmless beyond a reasonable doubt under that rule, may simultaneously be admissible under Rule 613 (and therefore not introduced erroneously at all).
In this respect the Majority appears to direct the Superior Court to determine if the "right-for-any-reason" doctrine applies. See , e.g ., Justice Thomas G. Saylor, Right for Any Reason: An Unsettled Doctrine at the Supreme Court Level and an Anecdotal Experience with Former Chief Justice Cappy , 47 Duq. L. Rev. 489, 491–92 (2009) (explaining, as a hypothetical example, that the doctrine may be employed to affirm a trial court's hearsay ruling by substituting the correct hearsay exception on appeal).
Unlike the Majority, I see little value in remanding this appeal to the Superior Court to consider whether A.W.’s interview was admissible as a prior consistent statement. The Commonwealth has not asked us for such a remedy, which is unsurprising given that it all but conceded that the interview was not admissible under Rule 613(c) the first time this case was before the Superior Court. See Commonwealth's Superior Court Brief at 18 ("[I]t would appear that Judge Rangos, as outlined in Bond , was not justified in admitting the video as a prior consistent statement to rehabilitate the victim."); id. at 10 ("The Commonwealth respectfully submits that the video was properly admitted by the trial court, if not necessarily for the specific reason offered.").
Instead of remanding, I would simply address the Rule 613 question. The Superior Court is in no better position to address its applicability, and the Commonwealth declined to address Rule 613 before this Court. Additionally, in its Superior Court brief the Commonwealth agreed that Rule 613 does not apply under governing Superior Court precedent:
[A]ny motive that A.W. would have had to lie about the actions that she attributed to Raboin would have existed at the time that she submitted to the forensic interview. Therefore, it would appear that Judge Rangos, as outlined in Bond , was not justified in admitting the video as a prior consistent statement to rehabilitate the victim.
Commonwealth's Brief, 976 WDA 2018, at 18 (footnote omitted).
I see no reason to further delay disposition of this case. Indeed, the Superior Court will be bound to follow its Bond precedent, and I would explicitly endorse the Bond Court's prior consistent statements analysis. See Bond , 190 A.3d at 667-70. Finally, both parties have already briefed whether the error is harmless beyond a reasonable doubt. We should thus decide that issue based upon the traditional harmless error analysis articulated in Story .
In my view, the evidence was not admissible as a prior consistent statement. While the trial court ruled that the evidence was admissible on this ground, see supra note 2, it later conceded that it erred in admitting this evidence and determined that its error was harmless beyond a reasonable doubt. Because the ultimate question is whether the trial court's judgment will be affirmed, I briefly address that issue.
The Rule states, in pertinent part:
(c) Witness's Prior Consistent Statement to Rehabilitate. Evidence of a witness's prior consistent statement is admissible to rehabilitate the witness's credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness's denial or explanation.
Pa.R.E. 613.
Arguably, some of the cross-examination touched on an implicit or explicit accusation of the grounds listed in Rule 613(c)(1) as counsel attempted to establish that A.W. omitted some details from her forensic statement and/or changed her version of events in ways that suggested her testimony did not meet the beyond a reasonable doubt threshold needed to convict. For instance, trial counsel asked A.W., "Did you tell the forensic examiner that he would call you in from the bedroom? Did you tell him that?" Her response "I think I did" treads closely to a charge that A.W. does not actually remember what she said at the forensic interview. Of course, as a strictly technical matter counsel was not accusing A.W. of not remembering what she said at the forensic interview but rather asking what she did say, with her response indicating uncertainty. Certainly, the Commonwealth could have objected to these questions and/or presented A.W. with the specific prior consistent statements on redirect.
But we need not parse out which statements may have been justifiably admitted as prior consistent statements and which were not. It suffices to say that the trial court erred because a court abuses its discretion when it admits statements that do not directly address the rationale for admitting the prior consistent statement. Admitting prior consistent statements that respond to an accusation of fabrication would not justify permitting statements that had nothing to do with that charge. Compare Commonwealthv. Fisher , 447 Pa. 405, 290 A.2d 262, 268 (1972) ("The rule of permissible rehabilitation is not so broad as to permit the use of hearsay on one subject to support the impeached testimony on another subject."). The Majority recognizes this same point with respect to its Rule 106 analysis. Majority Op. at 423-24 ("Although some of the interview served to correct the misleading impression created during defense counsel's cross-examination of the victim and detective, the vast majority of it did not.").
The McCormick on Evidence treatise offers the following commentary on this point:
The two most common rehabilitative methods are: (1) introduction of supportive evidence of good character of the witness attacked, and (2) proof of the witness's consistent statements. The basic question is whether these two types of rehabilitation evidence represent a proper response to the specific methods of impeachment that have been used. The general test of admissibility is whether evidence of the witness's good character or consistent statements is logically relevant to explain the impeaching fact. The rehabilitating facts must meet the impeachment with relative directness. The wall, attacked at one point, may not be fortified at another, distinct point.
Kenneth S. Broun, et al., 1 McCormick on Evidence § 47 (8th ed.).
Here, it cannot be the case that every hearsay statement on the tape qualified as a prior consistent statement with respect to a point raised on cross-examination or through other evidence. Accordingly, Rule 613(c) cannot justify the trial court's ruling on this record. III.
More accurately, the trial court would have erred had it done so, because we know the trial court did not identify any charge of faulty memory. Trial Court Opinion, 11/14/2018, at 10 ("This Court permitted the playing of the video in rebuttal as a prior consistent statement. As stated above, the Court relied upon Willis and Hunzer . This Court would again assert that the harmless error doctrine applies.").
The error was not harmless beyond a reasonable doubt
Nor was the error harmless beyond a reasonable doubt. The harmless error analysis must be the same for an erroneous admission under Rule 106 as it is for an analysis under Rule 613. The introduction of statements that corroborate trial court testimony is generally deemed harmless because it is assumed a witness has always told a consistent story. "Ordinarily, that one has always said the same thing is subsumed in their testimony and need not be buttressed by evidence of prior consistency, unless that consistency, by allegation of recent fabrication is challenged." Commonwealth v. Hutchinson , 521 Pa. 482, 556 A.2d 370, 372 (1989). Thus, in line with the trial court's opinion, appellate courts often agree that any such evidence erroneously introduced is cumulative of what was presented at trial. The Commonwealth likewise argues that the evidence was cumulative. Commonwealth's Brief at 12 (arguing that the error was harmless beyond a reasonable doubt "because the accusations included in the interview about which Raboin now complains—that the victim considered him to be a violent, abusive man of whom she was fearful—were merely cumulative of the sentiments that she conveyed during her trial testimony"); id . at 39 (arguing that the statements were "substantially similar to the erroneously admitted evidence.").
Recently, in Commonwealth v. Hamlett, ––– Pa. ––––, 234 A.3d 486 (2020), this Court confronted a case that largely mirrors the present controversy; indeed, it involved the same trial judge permitting the Commonwealth to play a videotaped recording of a forensic interview as a prior consistent statement pursuant to Willis and Hunzer . However, in Hamlett , unlike the present case, Bond was not decided until after the parties submitted their briefs. As a result, the Commonwealth did not claim that the error was harmless beyond a reasonable doubt. The Superior Court panel held that the trial judge erred by admitting the evidence, but sua sponte concluded that the error was harmless beyond a reasonable doubt. The panel did not address Rule 106.
We accepted appeal in Hamlett to determine whether an appellate court can raise harmless error sua sponte and affirmed. Notably, our grant was limited to the Superior Court's ability to do so and we did not address whether it correctly resolved that point. Id . at 489 n.2 (stating that the question presented did not "encompass the narrower question of whether the Superior Court may have erred in the substantive aspects of its harmless-error review"). In the present circumstances, where the substantive question of whether the error was harmless beyond a reasonable doubt is before us, I conclude it is not. I am persuaded by the salient aspects of Justice Wecht's dissenting opinion in Hamlett challenging the notion that an error can be dismissed as merely cumulative, and thus harmless, when its cumulative nature was the very reason that it was error. Under this circumstance, an appellate court may not conclude, beyond a reasonable doubt, that the erroneously admitted video corroboration of critical testimony did not influence the jury's assessment of the credibility of competing evidence. Id . at 519-21 (Wecht, J., dissenting).
As this case involves virtually identical factual circumstances, the problems identified by Justice Wecht appear here, too. The point that an error cannot be dismissed as cumulative and thus harmless when the cumulative nature was the very reason it was error is starker here than in Hamlett , because here the Commonwealth argues that the admission of the videotape was needed pursuant to the rule of completeness based on Raboin's cross-examination. Thus, in the Commonwealth's telling, the impeachment was so misleading that the jury came away confused as to what A.W. may have said in the forensic interview, thereby obligating the trial court to permit the Commonwealth to play the tape for the jury. But if that is true, then the tape cannot possibly be cumulative of her trial testimony. Under the Commonwealth's theory, the tape supplies context that, when taken together with the direct and cross examinations, presents a cohesive picture of A.W.’s testimony. In this sense the forensic interview is supplementary, not cumulative. And I fail to see how an appellate court can figure out what effect such supplementary material had on the jury's credibility assessments. The Commonwealth's harmless error argument asks us to ignore the tape because it was simply cumulative, i.e., unnecessary. But if the statements were unnecessary then the Commonwealth's claim that the videotape was needed under Rule 106 cannot be correct.
Second, and related to the foregoing, I agree with Justice Wecht that, at a minimum, in a he-said/she-said conflict such as this one, the harmless error beyond a reasonable doubt standard simply cannot apply when the accuser's credibility is bolstered by the playing of a videotape that corroborates the trial testimony. Id . at 501 (Wecht, J., dissenting) (observing that "harmless error necessitates that the evidence be uncontradicted —a requirement that prevents the reviewing court from making questionable assessments of the credibility of competing evidence from its inherently limited appellate perspective"). There is no evidence to convict other than A.W.’s testimony. We cannot cite overwhelming evidence of guilt as a basis to affirm the conviction where the only direct evidence against Raboin is the word of his accuser.
Critically, I am highly persuaded by Raboin's argument that the point at which the tape was admitted and played severely undermines the Commonwealth's argument that the error was harmless. The Commonwealth was permitted to play the evidence in rebuttal. It was the last thing that the jury saw before it received instructions and debated whether the Commonwealth met its burden. Whatever effect Raboin's cross-examination had would be diminished by viewing a testimonial videotape that was not subject to cross-examination. In fact, the rebuttal took place three days after A.W.’s testimony, long after Raboin confronted his accuser.
Furthermore, as discussed earlier in this opinion, the Confrontation Clause demands that the defendant be given an opportunity to confront his accuser. See supra note 4. The trial court's decision to let the jury see and hear an accuser for a second time without any subsequent cross-examination flouts that guarantee. It is little comfort to a defendant that he previously was able to cross-examine the victim when the trial court permits the jury, right before deliberation, to see the victim's interview under circumstances which are designed to be non-adversarial. I find showing the jury a version of the events that was not subject to adversarial testing highly problematic. Coy v. Iowa , 487 U.S. 1012, 1020, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) ("That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs."). Thus, the trial court's conclusion that this error was harmless beyond a reasonable doubt because Raboin previously cross-examined A.W. is unpersuasive. Raboin could not cross-examine the tape, and the myriad audio and visual clues that it contains were not subject to any adversarial testing. I find that there is an obvious risk that the jury was swayed by the presentation of the video interview immediately before its deliberations.
Third, the Commonwealth's substantive argument in support of finding no harmless error cites, in support, the Superior Court's decision in Commonwealth v. Lively , 231 A.3d 1003, 1009 (Pa. Super. 2020), which, in turn, cited and discussed the Bond Court's harmless error analysis. The Bond Court's erroneous analysis of harmless error states:
Next, we consider the Commonwealth's argument that the trial court's error was harmless.
The 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.
Commonwealth v. Allshouse , 614 Pa. 229, 36 A.3d 163, 182 (2012) (quoting Commonwealth v. Thornton , 494 Pa. 260, 431 A.2d 248, 251 (1981) ).
On this point, we turn for guidance to [ Commonwealth v. ] Busanet [, 618 Pa. 1, 54 A.3d 35, 66 (2012) ]. There, the defendant alleged his appellate counsel was ineffective for failing to challenge the trial court's admission of a witness's prior consistent statement. Busanet , 54 A.3d at 65. The witness was the Commonwealth's "key witness," and he testified that he was with the defendant when the defendant fired a gun at the victim in retribution for a robbery. Id. Defense counsel examined the witness on his motive to obtain favorable treatment from the Commonwealth in his own case. Id. The Commonwealth introduced a prior consistent statement—the witness's written statement that he gave to police 15 days after the crime occurred. Id. Trial counsel objected because the witness already had a motive to lie at that point, but the trial court overruled the objection. Id. at 66. Appellate counsel did not pursue the issue on direct appeal.
The Supreme Court found no ineffective assistance of counsel because the defendant failed to establish prejudice: "Nevertheless, even assuming for purposes of argument that the trial court erred by admitting [the witness's] prior statement under Pa.R.E. 613(e) [sic], we agree with the PCRA court that such a claim would not have entitled Appellant to relief on appeal[.]" Id. at 67. Trial counsel "meticulously cross examined [the witness] with evidence of his motive to testify favorably for the Commonwealth[.]" Id. "Further, on re-cross examination of [the witness], trial counsel painstakingly pointed out to the jury that when [the witness] made the prior statement, he was concerned about being charged in connection with the shooting." Id. The Supreme Court also noted other "overwhelming" evidence of the defendant's guilt, including other witnesses, ballistics evidence, and the defendant's own statements. Id. Thus, any error on the part of the trial court or counsel did not prejudice the defendant in Busanet .
We find Busanet instructive. ...
Bond , 190 A.3d at 670-71.
In addition to the previous observations challenging this type of harmless error analysis, Busanet involved a different legal standard. The Busanet decision involved a claim of ineffective assistance of counsel. To prevail on that type of claim, a petitioner must establish that the error was prejudicial, defined as a reasonable probability that the outcome of the proceeding would have been different but for the error. Putting aside the fact that the Commonwealth bears the burden of showing that the error was not harmless beyond a reasonable doubt, the legal standard for harmless error is more favorable to the defendant. In other words, a defendant can prevail on direct appeal for a preserved error, i.e., he or she receives a new trial because the Commonwealth could not establish that the error was harmless beyond a reasonable doubt, yet not receive a new trial for the exact same unpreserved error during collateral proceedings. As we explained in Commonwealth v. Spotz , 624 Pa. 4, 84 A.3d 294, 315 (2014) :
We agree with the Commonwealth that the Superior Court did not utilize the correct standard in concluding Appellee was prejudiced by trial counsel's failure to object to the prosecutor's references to Appellee's post-arrest silence during the cross-examination of Appellee. The panel applied the "harmless error" standard in determining whether the Strickland / Pierce "prejudice" prong was met. However, as this Court suggested in Spotz I, "the test for prejudice in the ineffectiveness context is more exacting than the test for harmless error, and the burden of proof is on the defendant, not the Commonwealth." Spotz I, 582 Pa. at 227, 870 A.2d at 834 (citations omitted). As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.
Id .
The Bond Court's analysis treated harmless error and prejudice as the same. It determined that a trial counsel's objection to this type of evidence presents the same considerations in terms of whether a new trial is warranted as in a case where a petitioner is required to establish prejudice in a collateral proceeding. That is manifestly incorrect.
The Bond Court's harmless error analysis was an alternative to its holding that the evidence was actually properly admitted. Bond , 190 A.3d at 673-74 (concluding that the videotape was admissible under Rule 106 because counsel "cross-examined [the victim] extensively about the interview"; approvingly quoting prosecutor's trial argument that counsel "went line by line towards what she's transcribed"). Having concluded that the evidence was properly admitted, there was no need to discuss harmless error.
For the foregoing reasons, in my view the trial court erred in allowing the Commonwealth to play the child victim's forensic interview in rebuttal and the error was not harmless beyond a reasonable doubt. I would grant a new trial.
Justices Saylor and Wecht join this concurring and dissenting opinion.
JUSTICE WECHT, concurring and dissenting
I agree with the Majority that the trial court erred in admitting A.W.’s forensic interview under Rule 106. I write separately to offer an additional reason that Rule 106 does not apply here: Raboin did not "introduce" the forensic interview for purposes of the Rule.
Rule 106, the so-called rule of completeness, provides that: "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time." Pa.R.E. 106. The Rule's clear language suggests that it is triggered only when a party "introduces all or part of a writing or recorded statement." The Majority concludes nevertheless that the Rule applies regardless of whether the party has formally introduced the statement as an exhibit. See Majority Opinion at 422 ("We disagree with Appellant that Rule 106 is only triggered when the writing or recording is formally introduced as an exhibit."). According to the Majority, one "introduces" a statement for purposes of Rule 106 whenever he or she makes "extensive references to a written or recorded statement during the examination of a witness or multiple witnesses." Id. The Majority offers no legal analysis whatsoever for this holding, nor does it bother to describe how and when Raboin extensively referenced A.W.’s interview transcript.
The Majority's liberal interpretation of Rule 106 stems from Commonwealth v. Bond , 190 A.3d 664 (Pa. Super. 2018), a case which the Majority distinguishes elsewhere in the opinion. In Bond , the Superior Court held that, while a victim's forensic interview was inadmissible as a prior consistent statement, the interview video nevertheless was admissible under Rule 106. Id. at 674. The Bond court underscored that, during cross-examination, defense counsel "went line by line" through the transcript of the forensic interview. Id . Given defense counsel's extensive reliance upon the interview transcript, the Bond court concluded that the prosecution was entitled to introduce the victim's entire account of the assault in order to provide the full context of the victim's statements. Bond , 190 A.3d at 674 ("Given the extent to which defense counsel relied on the Interview Video during her cross-examination of the victim, the prosecution was entitled to introduce Child's entire account of the assault in order to provide full context.").
Analogizing this case to Bond , the panel below found that Raboin's attorney thoroughly cross-examined A.W. regarding the forensic interview generally, and even asked about specific statements that A.W. made during the interview. Defense counsel also cross-examined Detective Canofari regarding his recollection of specific statements that A.W. made in the forensic interview. Counsel further questioned Detective Canofari regarding his police report, which included details from A.W.’s forensic interview. Given that defense counsel questioned A.W. and Detective Canofari regarding the forensic interview and attempted to create inconsistencies between A.W.’s trial testimony and her statements in the forensic interview, the Superior Court concluded that "the Commonwealth was entitled to introduce A.W.’s entire account of the assault in order to provide full context." Commonwealth v. Raboin , 2019 WL 4072306, at *3 (Pa. Super. 2019).
The Superior Court's holding in Bond arguably departs from the text of Rule 106, which applies only when "a party introduces all or part of a writing or recorded statement,"1 not simply whenever counsel proceeds "line by line" to quote a transcript of the statement. Indeed, courts in some of our sister states have held that the rule of completeness applies only when a writing or recording formally has been introduced as substantive evidence.2 Nevertheless, there is some appeal to Bond ’s rationale. To hold otherwise effectively would allow litigants to read into the record a misleadingly excerpted portion of a statement, thus giving jurors the mistaken impression that the excerpt actually represents the entire writing or recording. Because this is the very situation that Rule 106 was intended to prevent,3 the Bond Court's interpretation likely was correct.
But even if one agrees with Bond's liberal interpretation of the word "introduces," this case is nothing like Bond. Raboin's attorney did not proceed "line by line" through the interview transcript, nor did he cross-examine A.W. "on all of the pertinent portions" of that transcript. Bond , 190 A.3d at 673-74. Raboin's attorney instead explored only a few key areas while cross-examining A.W. His primary questions concerned A.W.’s age at the time of the abuse and the rooms of the family's home in which the abuse occurred. While the Majority does not explain which of counsel's questions constitute "extensive references" to the interview transcript, the Commonwealth contends that the following exchange sufficed to invoke Rule 106 :
Q: You mentioned that you remember going to A Child's Place for, I think they call it, a forensic interview?
A: Yes.
Q: Okay. Your mom took you there?
A: Yes.
Q: Ben was there?
A: Yes.
Q: All right. The detective was there?
A: Yes.
Q: And you indicate that, in response to [the interviewer's] questions, everything you said was the truth?
A: Yes.
Q: Okay. Did you tell them - and let me ask you this: As I understand, this can be uncomfortable for you. Was that a more comfortable setting than this?
A: Yes.
Q: They take you in a private room. Correct?
A: There were people watching through a window.
Q: But it's you and the interviewer are in a room, you're on a comfortable chair, that kind of thing?
A: Yes.
Q: Did you feel more comfortable then?
A: Yes.
Q: All right. That's fine. You told - do you remember the interviewer's name?
A: No.
Q: Did you tell him this all happened when you were eight?
A: I told him kindergarten through second grade.
Q: There's no doubt in your mind?
A: Yes. No, there isn't.
Q: There's no doubt - I'm asking bad questions. There's no doubt in your mind that's what you told him?
A: No.
Q: When you were in kindergarten, you were six?
A: Yes.
Q: Do you know how big or tall you were when you were six?
A: No.
* * * *
Q: Okay. And you spoke to the forensic interviewer. Did you tell him that they [(meaning the incidents of abuse)] happened each and every time because you had to go in there to go to the bathroom?
A: Yes.
Q: Okay. But earlier you testified that [Raboin] would call you in from the bedroom. Which is it?
A: It's both.
Q: Okay. So sometimes he would call you in from the bedroom, sometimes you had to go in to go to the bathroom?
A: Most of the time he would call me from the bedroom. Other times he would tell my sisters to go to the bathroom and make me stay in the bedroom.
Q: But sometimes you would find yourself in the shower because you had to go to the bathroom?
A: Yes.
Q: And you would sometimes go in there to go to the bathroom after he had done this to you a few times?
A: Yes.
Q: Did you tell the forensic interviewer that he would call you in from the bedroom? Did you tell him that?
A: I think I did.
Notes of Testimony ("N.T."), 3/9/2018, at 67-71.
At the end of his cross-examination of A.W., defense counsel brought up the forensic interview one last time, asking: "Did you tell the forensic examiner -- I know I touched on that -- that what happened here was that [Raboin] would be in the shower, you would go in, he would say, ‘Why don't you get in with me,’ and that's how it would happen?" Id. at 79. A.W. replied, "Yes, about half the time ... I went in because I couldn't hold it. I had to go to the bathroom." Id. at 80.
The Commonwealth contends that the above questions "created in the minds of the jurors the suggestion that there was something about that interview that called into doubt the allegations that the victim had made from the witness stand." Brief for Commonwealth at 27. Thus, the Commonwealth argues, "the questioning related to the interview's content was tantamount to the introduction of the interview itself, and for that reason, Raboin cannot credibly argue that he had not introduced the forensic interview such that Rule 106 was applicable, thereby allowing the prosecution to counter the misleading impression that he had created through his cross-examination." Id.
Unlike in Bond , defense counsel's surface-level questions here did not "introduce" A.W.’s recorded statement for purposes of Rule 106. If the Majority is correct that counsel's references to the recording or transcript—neither of which he mentioned directly—were "extensive," then virtually every forensic interview will be admissible under the rule of completeness. This would mean that defendants would be forced either to sacrifice their right to confront adverse witnesses; or, should they choose to engage in cross-examination, accept that a highly prejudicial recorded hearsay statement will be played for the jury. Nothing in the text of Rule 106 (or in the Rule's commentary) suggests that it was intended to impose such a dilemma upon defendants. Rather, "[t]he purpose of Pa.R.E. 106 is to give the adverse party an opportunity to correct a misleading impression that may be created by the use of a part of a writing or recorded statement that may be taken out of context," Pa.R.E. 106, cmt , and that plainly did not happen here.
I would also conclude that the trial court's admission of A.W.’s forensic interview was not harmless beyond a reasonable doubt. Harmless error exists when: (1) the error did not prejudice the defendant or the prejudice was de minimis , (2) the erroneously admitted evidence was cumulative of other untainted evidence, or (3) the error could not have contributed to the guilty verdict because the admissible and uncontradicted evidence of guilt was so overwhelming that the prejudicial effect of the error was insignificant by comparison. Commonwealth v. Petroll , 558 Pa. 565, 738 A.2d 993, 1005 (1999). Here, the Commonwealth contends that A.W.’s interview was merely cumulative of her trial testimony, in which she explained that she was afraid Raboin might hurt her or her family if she reported the abuse. Brief for Commonwealth at 39.
I am unpersuaded by the Commonwealth's argument for three reasons. First, A.W. expressed more than just a general fear of Raboin in her forensic interview. She stated that Raboin "was really mean," physically abused her mom, and would withhold food from her and her siblings when he watched them.4 Second, the Commonwealth introduced the lengthy interview (the transcript of which is forty-two pages) on rebuttal. This means that the interview was the final evidence the jury heard before beginning deliberations, and Raboin never got a chance to rebut it. Lastly, and perhaps most importantly, the evidence of abuse in this case was not undisputed. Several defense witnesses testified that Raboin was never alone in the house with A.W., and that another adult resident or a babysitter was always present when Raboin was home. Raboin himself similarly testified that there were always multiple adults in the home when A.W. was there.
Given these facts, the forensic interview was not merely cumulative evidence. It was, instead, a highly prejudicial recording that expanded upon A.W.’s trial testimony and served to bolster her credibility in the minds of the jurors. Indeed, the trial court specifically instructed the jury to use the interview for the purpose of assessing A.W.’s credibility.5 And, in a he-said she-said case like this, credibility is key. Put simply, it would be impossible for an appellate court reviewing this record to conclude beyond a reasonable doubt that the interview did not influence the jury's verdict. Thus, I would vacate Raboin's judgment of sentence and remand to the trial court for further proceedings.6