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
BEFORE: OTT, STABILE, and MUSMANNO, JJ.
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. We affirm.
trial court summarized the facts in its Pa.R.A.P. 1925(a)
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.
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.
review the trial court's evidentiary rulings for abuse of
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).
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
(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.
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.
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
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."
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.
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).
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 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.
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)).
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 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.
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. 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). Appellant relied on the inconsistencies in
Child's statements to support his claim that Child was
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
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.