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Commonwealth v. Bond

Superior Court of Pennsylvania

June 13, 2018

GEORGE G. BOND Appellant

          Appeal from the Judgment of Sentence imposed January 4, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0007801-2014



          STABILE, JUDGE

         Appellant, George G. Bond, appeals from the January 4, 2017 judgment of sentence imposing an aggregate 27½ to 55 years for involuntary deviate sexual intercourse ("IDSI"), unlawful contact with a minor, aggravated indecent assault, and indecent assault.[1] We affirm.

         The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion.

At trial it was established that on May 24, 2014, A.P. ["Child"], then age 10, her mother, S.P. ["Mother"] and [Mother's] boyfriend, the [Appellant] George Bond, lived on the first floor apartment of premises 1260 South 60th Street, Philadelphia. While [Mother] was at work, [Child] told [Appellant] that she was hungry. [Child] sat on [Mother's] bed. [Appellant] was lying on the same bed. While [Child] was searching for restaurants on her tablet, [Appellant] started to rub her and told her to pull down her pants. She did. [Appellant] inserted his finger into her vagina, performed oral sex on her and then exposed his penis.
Later that day, [Child] approached her great aunt, ["Great Aunt"], who lived in the upstairs apartment of the building. [Child] was too embarrassed to tell [Great Aunt] what happened. Instead, she wrote a note recounting the incident. She showed the note to [Great Aunt]. [Great Aunt] and [Child] informed [Mother] about the incident by telephone. [Mother] came home and summoned the police.
[Child] was interviewed by [Michelle Kline], a forensic interview specialist with the Philadelphia Children's Alliance. A video of the interview was played to the jury.

Trial Court Opinion, 5/12/17, at 2-3.

         On March 15, 2016, at the conclusion of trial, the jury found Appellant guilty of the aforementioned offenses. The trial court imposed sentence on January 4, 2017. On January 12, 2017, Appellant filed a motion for reconsideration of the sentence. The trial court denied that motion the same day. Appellant filed this timely appeal on January 19, 2017. His sole contention is that the trial court erred in permitting the jury to see a video of Child's forensic interview (the "Interview Video") with Philadelphia Children's Alliance ("PCA"). Appellant's Brief at 3.

         We review the trial court's evidentiary rulings for abuse of discretion.

The admission or exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. Thus our standard of review is very narrow. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012), appeal denied, 62 A.3d 379 (Pa. 2013). "Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Commonwealth v. Aikens, 990 A.2d 1181, 1184-85 (Pa. Super. 2010), appeal denied, 4 A.3d 157 (Pa. 2010).

         The trial court admitted the Interview Video as a prior consistent statement. It did so at the Commonwealth's request after defense counsel cross-examined Child extensively with regard to the substance of the interview depicted in the video. Rule 613(c) of the Pennsylvania Rules of Evidence governs this issue:

(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(c).

         This Court has addressed Rule 613 as follows:

[P]rior consistent statements may be admitted to corroborate or rehabilitate the testimony of a witness who has been impeached, expressly or impliedly, as having a faulty memory, or as having been induced to fabricate the testimony by improper motive or influence. Admission of prior consistent statements on such grounds is a matter left to the sound discretion of the trial court, to be decided in light of the character and degree of impeachment. It is not necessary that the impeachment be direct; it may be implied, inferred, or insinuated either by cross-examination, presentation of conflicting evidence, or a combination of the two.

Commonwealth v. Baker, 963 A.2d 495, 504 (Pa. Super. 2008), appeal denied, 992 A.2d 885 (Pa. 2010) (quoting Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005), appeal denied, 880 A.2d 1237 (Pa. 2005)). "[T]o be admissible to rebut a charge of improper motive, as is the case here, the prior consistent statement must have been made before the motive to lie existed." Commonwealth v. Busanet, 54 A.3d 35, 66 (Pa. 2012), cert. denied, 134 S.Ct. 178 (2013). A prior consistent statement, if admissible at all, is admissible only as rebuttal or rehabilitation but as not substantive evidence. Baker, 963 A.2d at 504.

         In Commonwealth v. Hutchinson, 556 A.2d 370, 371 (Pa. 1989), a jury found the defendant guilty of raping and robbing two women. Upon his arrest, the defendant told police he was on his way home from his grandmother's home and had committed no crime. Id. The defendant alleged counsel was ineffective for failing to offer the statement into evidence as a prior consistent statement after the prosecutor impeached the credibility of defendant and his grandmother. Id.

         The Hutchinson Court explained that prior consistent statements ordinarily are inadmissible hearsay, but in rare cases, they are admissible to rehabilitate a witness against a claim of recent fabrication or corrupt motives. Id. at 372. The Hutchinson Court stated:

If one testifies that they did a certain thing at a given time, they may be challenged that they said something different before. Such is impeachment by a prior contradictory statement. 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. When challenged, evidence of prior and continued consistency may be offered. Evidence of prior consistency, absent such challenge is not required and is essentially cumulative and repetitious. To regularly allow testimony of prior consistency may easily become a device to merely augment the credibility of witnesses by others.

Hutchinson, 556 A.2d at 372. By the foregoing standards, the Hutchinson Court held the defendant's statement inadmissible. The prosecution made no allegations of recent fabrication during trial, and "the statement in issue was made after [the defendant's] arrest: clearly not a time when the effect of the statement could not have been foreseen." Id.

         On the other hand, in Baker, this Court affirmed the admission of video of a child's forensic interview because the defense insinuated that the prosecution and/or the victim's mother induced the victim to fabricate the testimony. Baker, 963 A.2d at 505. The video predated the alleged inducement of fabricated testimony. Id.

         Appellant argues the trial court erred because this case involves no prior statements that predate Child's motive to fabricate. He claims Child fabricated her allegations from the beginning because she did not like living with Mother and Appellant and was upset about her separation from her natural father, who was incarcerated. Rule 613 permits prior consistent statements, Appellant argues, only when they predate the alleged "fabrication, bias, improper influence or motive, or faulty memory." Pa.R.E. 613(c)(1). He is correct in this regard. Busanet, 54 A.3d at 66; see also, Commonwealth v. Montalvo, 986 A.2d 84, 96 (Pa. 2009) (holding a prior statement inadmissible where the defendant failed to establish the timing of the statement).

         Child's accounts of the incident-in her note to Great Aunt, in her statement to a DHS caseworker, in the Interview Video, at the preliminary hearing, and at trial-varied slightly, with regard to whether Appellant penetrated[2] her as well as various other details. Appellant claimed that Child's allegations were fabricated from the beginning, and that the Interview Video therefore served no rehabilitative purpose. The Interview Video, Appellant argues, was just one of a series of inconsistent accounts of the assault.

         The trial court cited Hunzer in support of its decision. There, the victim testified that the defendant assaulted her by "sticking his tongue and his finger in my private area." Hunzer, 868 A.2d at 506. The Commonwealth, over the defendant's objection, elicited the victim's prior consistent statements through the testimony of a caseworker. Id. at 511-12. The Hunzer Court wrote:

Prior consistent statements may […] be considered specially relevant when the witness' status alone is such that his or her testimony may be called into question even in the absence of express impeachment. […] [J]urors are likely to suspect that unimpeached testimony of child witnesses in general, and child victims of sexual assaults in particular, may be distorted by fantasy, exaggeration, suggestion, or decay of the original memory of the event. Prior consistent statements may therefore be admitted to corroborate even unimpeached testimony of child witnesses, at the trial court's discretion, because such statements were made at a time when the memory was fresher and there was less opportunity for the child witness to be effected by the decaying impact of time and suggestion.

Id. at 512 (quoting Commonwealth v. Willis, 552 A.2d 682, 691-92 (Pa. Super. 1988), appeal denied, 559 A.2d 527 (Pa. 1989)).

         The quoted passage seems at odds with the express language of Rule 613, in that it is far more permissive of prior consistent statements, at least in the context of the sexual assault of a child. Willis, from which the Hunzer Court quoted, pre-dated the enactment of Rule 613 and the Tender Years Act, 42 Pa.C.S.A. § 5985.1[3] The Hunzer defendant therefore argued that the trial court erred in relying on Willis rather than Rule 613. The Hunzer Court concluded that the Commonwealth used prior consistent statements "to rebut an inference of recent fabrication arising during cross-examination." Id. at 513. Thus, the Hunzer Court tracked the language of Rule 613, but it did not engage in a detailed analysis of the timing of the prior consistent statement.

         Instantly, the trial court quoted the portion of Hunzer in which that Court quoted extensively from Willis. We conclude the trial court erred, because its holding contravenes the express language of Rule 613, our Supreme Court's analysis of Rule 613 in Hutchinson, and this Court's analysis of Rule 613 in Baker.[4] While the Interview Video antedated Child's cross-examination at trial, it did not antedate the alleged motive to lie, which Appellant claims arose before she first complained of the assault. Put simply, Child's statements in the Interview Video were not "made before" the alleged fabrication, as Rule 613(c)(1) expressly requires. Moreover, this case does not involve a lapse in memory, another basis for admitting a prior consistent statement under Rule 613(c)(1).[5] Appellant relied on the inconsistencies in Child's statements to support his claim that Child was lying.

         The Commonwealth argues that Appellant, in challenging Child's credibility based on her varying accounts of the assault, has accused Child of fabricating her accounts "on an ongoing basis, " and that therefore the Commonwealth was entitled to introduce the Interview Video, which was largely consistent with Child's most incriminating allegations. Given the governing precedents discussed above, we do not believe we can construe Rule 613(c)(1) so broadly. Under the Commonwealth's analysis, a prosecutor could, in any case where the defense probes a witness's inconsistent accounts of a crime, rely on Rule 613(c)(1) to trumpet the most incriminating version regardless of whether it antedates the alleged "fabrication, bias, improper influence or motive, or faulty memory." Rule 613(c)(1) does not authorize that approach.

         We also reject the Commonwealth's argument that the trial court's ruling is salvageable under Rule 613(c)(2), which permits admission of a prior consistent statement that supports the witness's denial of, or explanation for, having made a prior inconsistent statement. Pa.R.E. 613(c)(2). The Commonwealth fails to cite any place in the record where Child denied having made a prior inconsistent statement or explained the inconsistencies in her testimony. ...

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