Commonwealth v. Raboin, T., Aplt. ( 2021 )

[J-104-2020] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 9 WAP 2020
:
Appellee : Appeal from the Order of the
: Superior Court entered August 29,
: 2019 at No. 976 WDA 2018
v. : affirming the Judgment of Sentence
: of the Court of Common Pleas of
: Allegheny County entered June 11,
THOMAS AUGUST RABOIN, : 2018 at No. CP-02-CR-0009844-
: 2017.
Appellant :
: ARGUED: December 2, 2020
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: SEPTEMBER 7, 2021
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 17 (“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
[J-104-2020] [MO: Mundy, J.] - 2
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
1 Pa.R.E. 106 (emphasis added).
2 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.”).
3 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, 210 P.3d 198, 206 (N.M. 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).
[J-104-2020] [MO: Mundy, J.] - 3
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?
[J-104-2020] [MO: Mundy, J.] - 4
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.
[J-104-2020] [MO: Mundy, J.] - 5
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
[J-104-2020] [MO: Mundy, J.] - 6
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, 738 A.2d 993, 1005 (Pa. 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
4 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.”).
[J-104-2020] [MO: Mundy, J.] - 7
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
5 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.”).
6 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.”).
[J-104-2020] [MO: Mundy, J.] - 8