Commonwealth v. Wilson , 550 Pa. 518 ( 1998 )

OPINION

ZAPPALA, Justice.

On March 24, 1994, Belinda Wilson (Appellant) was convicted of two counts of aggravated assault, simple assault and endangering the welfare of children arising out of multiple incidents of physical abuse of her daughters, Natalie Wilson and Nicole Wilson. She was sentenced to an imprisonment term of six to twenty-three months, with a consecutive term of ten years of probation. Post-sentence motions were denied after an evidentiary hearing. The Superior Court affirmed the judgment of sentence in a memorandum opinion dated August 17,1995.

We granted allocatur limited to the issues of (1) whether prior inconsistent statements by the victims were admissible as substantive evidence under Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), and (2) whether trial counsel was ineffective for failing to object to hearsay testimony. For the following reasons, we find that the trial court erred in allowing the jury to consider prior inconsistent statements made by Natalie Wilson and Nicole Wilson as substantive evidence.¹

On March 10, 1993, the Department of Human Services received a report alleging that Natalie Wilson, age 13, had been seen with a bruise on her left shoulder. Bernice Ervin, the DHS social worker assigned to investigate the allegations, contacted Belinda Wilson and arranged to meet with her and Natalie at their home on March 26, 1993. Ervin examined Natalie and her sister, Nicole, in the presence of their mother. She observed marks of physical abuse on the children’s bodies. Ervin requested that the children be taken to the hospital for a physical examination. The next day the children were examined at the hospital by Dr. Sarah Badran, a pediatric resident. Dr. Badran observed numerous loop-shaped scars on their bodies.

On May 11, 1993, the children were interviewed separately at the Child Advocacy Center in Philadelphia by a police officer, Adoniram Ulloa. The children were accompanied by an attorney who was appointed by the court to act as a child advocate. The attorney was not with the children when they were interviewed. Officer Valerie Thorn was present during the interviews, but did not question the girls. In the course of the interviews, Officer Ulloa would leave the room so that Officer Thorn could examine the children’s scars. One week later, Belinda Wilson was arrested.

During the trial, the children appeared as Commonwealth witnesses. They denied that their mother had beaten them and denied having made statements to others, including Officer Ulloa, that implicated their mother. When Natalie Wilson testified, the prosecutor showed her a report prepared by Officer Ulloa to see if it would refresh her recollection as to what she had told him. Natalie reviewed the document, but continued to deny that she had told Officer Ulloa that her mother had beaten her with a rope and belt.

Nicole Wilson testified that she did not remember telling Officer Ulloa that her mother had spanked her and had hit her with a leather belt and a jump rope. She admitted that she told Officer Ulloa that her mother had hit her for disobedience. Nicole also admitted that there were rope marks on her back, but claimed that the marks resulted from fights with her sister.

Officer Ulloa testified that he had interviewed the children using two methods. He would listen to the child first to get an idea of what the child was telling him and then would write everything down. Then, he would ask questions consistent with the child’s previous statements and write down the answers.

When the prosecutor attempted to read Officer Ulloa’s written notes into the record, defense counsel objected. The trial judge reviewed the statement during a side bar conference. Based on her observation that a portion of the statement was Officer Ulloa’s summary of the interview rather than the words of the children, the trial judge ruled that the summary was inadmissible.

The portion of the notes that reflected questions and answers were ruled admissible as prior inconsistent statements of the witnesses that could be considered as substantive evidence by the jury. The questions and answers were then read into the record. Officer Ulloa’s notes indicated that he was told by both girls that their mother had beaten them.

Wilson asserts that the trial judge erred in admitting the children’s prior inconsistent statements as substantive evidence. The Commonwealth argues that the prior inconsistent statements were properly admitted as substantive evidence because they were a verbatim recording of what the children said during their interviews with the police officer.

In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), we reconsidered the longstanding rule that prior inconsistent statements of a non-party witness could only be used to impeach the credibility of the witness, not as substantive evidence to prove the truth of the matters asserted therein. We were persuaded to adopt the developing view that such statements may be used as substantive evidence where the declarant is a witness at trial and available for cross-examination.

In Brady, the defendant was convicted of second degree murder, burglary and criminal mischief for the stabbing death of a security guard. The defendant’s girlfriend, Tina Traxler, was interviewed by the police on the day of the murder. Traxler first told the police that she and the defendant were riding in a car that became stuck in a ditch near the manufacturing plant where the security guard was employed. When she accompanied the police to the area, however, Traxler admitted that they had entered the plant and that her boyfriend had stabbed the security guard.

Traxler agreed to make a tape-recorded statement when she returned to the police station. In her recorded statement, she identified her boyfriend as the perpetrator of the crimes. She stated that they had entered the plant and that her boyfriend had stabbed the security guard when he surprised them while they were attempting to pry open a dollar bill change machine.

Traxler recanted her tape-recorded statement when called as a witness by the Commonwealth at trial. She denied that she and her boyfriend had entered the plant. Traxler admitted that she had given the statement to the police, but explained the discrepancies by claiming that she was afraid of the police and had told them what they wanted to hear. The Commonwealth was permitted to introduce the tape-recorded statement as substantive evidence to prove the truth of the matters asserted and the jury was instructed that the statement could be considered for that purpose.

We held that the tape-recorded statement was properly admitted as substantive evidence because the statement was rendered under highly reliable circumstances assuring that it was voluntarily given. Furthermore, the witness was subject to cross-examination as to the validity of each statement. The jury had the opportunity to observe the demeanor of the witness and to assess her credibility.

We did not address in Brady under what circumstances a prior inconsistent statement would be considered highly reliable so as to render the statement admissible as substantive evidence. The issue was subsequently addressed in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). We held that a prior inconsistent statement by a non-party witness shall be used as substantive evidence only when it was given under oath at a formal legal proceeding, or the statement was reduced to a writing signed and adopted by the declarant, or the statement was recorded verbatim contemporaneously with the making of the statement.

In Lively, the defendant was convicted of first degree murder and possession of an instrument of crime. The Commonwealth introduced evidence that the victim had smashed the rear window of the defendant’s automobile. The defendant retrieved a gun from the trunk and fired shots that missed the victim. The defendant encountered the victim the next day and fatally shot him.

During the trial, the Commonwealth was permitted to introduce prior inconsistent statements of three witnesses who failed to implicate the defendant while testifying. The first witness denied having told a police officer that she had seen the defendant shoot the victim. The officer was then permitted to testify that the witness had identified the defendant as the perpetrator within a few hours after the shooting. The second witness denied having told an assistant district attorney and a detective that he had seen the defendant during the earlier shooting incident. The Commonwealth then cross-examined the witness as to his inconsistent statements contained in a memorandum prepared by the detective following an interview with the witness. The third witness was confronted with prior inconsistent statements he had made at a preliminary hearing and in a signed statement given to the police.

The prior inconsistent statements of each witness were admitted as substantive evidence over the objection of defense counsel. On appeal, the Superior Court rejected the defendant’s arguments that unrecorded non-verbatim statements should not have been considered for that purpose. The Superior Court reasoned that our decision in Brady did not require that a prior inconsistent statement be either recorded or verbatim.

We concluded that the prior inconsistent statements of two of the witnesses were improperly admitted as substantive evidence and remanded for a new trial. We clarified the holding in Brady by limiting the circumstances in which a prior inconsistent statement may be used as substantive evidence. By restricting such use of prior inconsistent statements to those given under oath at a formal proceeding, or reduced to a writing signed and adopted by the witness, or which are contemporaneous verbatim recordings of a witness’s statements, we intended “to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy [will be] considered as substantive evidence____” 530 Pa. at 471, 610 A.2d at 10. Under this standard, we determined that the police officer’s testimony relating to a statement given to him by a witness, and another witness’s statements included in the detective’s memorandum, were not properly admitted as substantive evidence. The signed written statement and preliminary hearing testimony of the third witness met the standard and were properly admitted.

In Commonwealth v. Halsted, 542 Pa. 318, 666 A.2d 655 (1995), the defendant was convicted of involuntary deviate sexual intercourse and indecent assault. An investigation into complaints of child abuse by the defendant led a Pennsylvania State Trooper to interview an eleven-year old child. The child told the trooper that the defendant performed oral sex on him in the presence of the defendant’s eight-year old grandson. The grandson told the trooper that the allegations were true and that the defendant had told him to stand guard so that they would not be discovered. The grandson stated also that the defendant had performed oral sex on him on two different occasions when he was younger. The trooper made notes during the interviews and later prepared a typewritten police report from his interview notes.

At trial the eleven-year old child testified regarding the incident of sexual abuse. The defendant’s grandson also testified; however, he claimed that he had not seen the defendant engage in oral sex with the other child, that he had not acted as a lookout, that he had not been sexually abused and could not recall telling the trooper that such abuse had occurred. The Commonwealth was unsuccessful in its attempt to refresh the child’s recollection by confronting him with the statements made to the trooper. The trooper was then permitted to read into the record the text of the grandson’s statement from his typewritten police report as substantive evidence of the offense.

We addressed the issue of whether the trooper’s typewritten report was admissible as substantive evidence of the crime charged against the defendant as a contemporaneous, verbatim recording. We concluded that the police report read into evidence by the trooper was not made contemporaneously with his interview with the child and was inadmissible under the guidelines established in Lively. We reversed and remanded for a new trial.

During the trial, the trooper had testified that he recorded the grandson’s statements verbatim on a notepad during the interview and that he later made a typewritten police report of those exact statements. Since the notepad was not produced at trial, no issue was raised as to the admissibility of the grandson’s allegedly verbatim statements contained therein. In dicta, however, the lead opinion stated “[t]he note pad, which was the contemporaneous verbatim recording, was not produced at trial, and [the trooper] was uncertain as to whether it still existed at the time of trial.” 542 Pa. at 323, 666 A.2d at 658.

The quoted language unfortunately suggested that statements of the witnesses referred to in the notepad would have been admissible as substantive evidence under the Lively standard if the notepad had been preserved for use at trial. A majority of four members of the Court issued a concurring opinion, however, which explicitly rejected the notion that a “recording” of a -witness's prior inconsistent statements that is neither an audiotaped or videotaped recording may be admissible as substantive evidence of the offenses charged.

The concurring opinion set forth the policy considerations that compelled a majority to reach that conclusion.

The limitations on the rule developed in Brady were intended to ensure that the prior inconsistent statement was in fact made by the witness. If the Commonwealth is to be allowed to introduce a prior inconsistent statement as substantive evidence to prove that the defendant committed the crime, there should be no dispute as to whether the statement was ever made. A statement given under oath at a formal legal proceeding and a written statement signed and adopted by a witness eliminate the possibility that a collateral issue will arise at trial as to whether the witness made the statement. The witness, of course, may offer an explanation as to why the prior inconsistent statement is untrue or inaccurate.

In order to ensure that the same degree of reliability has been established when the statement is a contemporaneous verbatim recording of the witness’s statement, the “recording” of a statement must be an audiotaped or videotaped recording. By suggesting that the Lively standard would be met by introducing an officer’s notepad which is claimed to include the verbatim statement of a witness, the majority has interjected a degree of unreliability into the use of a statement as substantive evidence of the crime. In that instance, a witness could challenge whether a statement attributed to him was actually made, or whether the statement was recorded verbatim. The possibility of these unnecessary collateral issues should be eliminated when the statements are to be used as substantive evidence.

542 Pa. at 329, 666 A.2d at 661.

We find that these policy considerations are equally compelling now that the issue is squarely before us. The problems that we anticipated and articulated in the concurring opinion in Halsted arose in this case. The Commonwealth’s use of the police officer’s written questions and answers generated collateral issues as to whether the notes were truly a verbatim account of the witnesses’ statements and as to the credibility of the police officer. In fact, the trial judge had rejected the police officer’s claim that the narrative contained in his report was a verbatim contemporaneous recording of his interviews with the Wilson children and excluded that portion of his report. This indicates that the police officer’s interpretation of what would be considered as a verbatim recording differed from that of the trial judge.

We hold, therefore, that under the Lively standard, when the prior inconsistent statement is a contemporaneous verbatim recording of a witness’s statement, the recording of the statement must be an electronic, audiotaped or videotaped recording in order to be considered as substantive evidence. This will ensure that the requisite degree of reliability demonstrated will be similar to instances in which the statement was given under oath at a formal legal proceeding or the statement is reduced to a writing signed and adopted by the declarant. Since the questions and answers contained in the police report introduced into evidence in this case were not recorded on audiotape or videotape, the evidence was improperly admitted.

Accordingly, the order of the Superior Court affirming the judgment of sentence of the Philadelphia County Court of Common Pleas is reversed and the case is remanded for a new trial.

NEWMAN, J., files a dissenting opinion.

1 . We need not address the remaining issue alleging ineffectiveness of trial counsel for failing to object to testimony of Dr. Sarah Badran, a physician who examined Wilson's daughters, and Patty Stewart, a Pennsylvania Department of Human Services social worker, regarding statements made to them by the daughters that their mother had caused the scars found on their arms, legs and backs. We note, however, that the trial court concluded that trial counsel was not ineffective for failing to object to Dr. Badran’s testimony because it fell within the medical treatment exception to the hearsay rule. Subsequent to the filing of the parties' briefs with this Court, we issued a decision in Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996) which held that the medical treatment exception does not extend to statements made by a child during a medical examination as to the identity of an alleged abuser.