Com. of Pa. v. Giles , 182 A.3d 460 ( 2018 )

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2018 PA Super 63COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MICHAEL WADE GILES, JR. :
: No. 1675 WDA 2016
Appellant
Appeal from the Judgment of Sentence September 23, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004601-2015
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.
OPINION BY LAZARUS, J.: FILED MARCH 20, 2018
Michael Wade Giles, Jr., appeals from the judgment of sentence, entered
in the Court of Common Pleas of Allegheny County, following his convictions
of rape of a child,1 aggravated indecent assault,2 unlawful contact with minor-
sexual offenses,3 indecent assault-person less than 13 years of age,4
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1 18 Pa.C.S. § 3121(c).
2 18 Pa.C.S. § 3125(a)(1).
3 18 Pa.C.S. § 6318(a)(1).
4 18 Pa.C.S. § 3126(a)(7).
____________________________________
* Former Justice specially assigned to the Superior Court.
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corruption of minors-defendant age 18 or above,5 endangering welfare of
children,6 and indecent exposure.7 After our review, we affirm.
The charges in this case stemmed from incidents occurring in the spring
and summer of 2013, when the female victim, Q.H., was ten years old. At
trial, Q.H. testified that on the first occasion, Giles touched her vagina while
they were in her mother’s bedroom. On the second occasion, again in her
mother’s bedroom, Giles made Q.H. touch his penis. On the third occasion,
Q.H. testified that Giles told her to go to the living room and take off her
clothes; he then had sexual intercourse with her and performed oral sex on
her. Q.H. disclosed these three incidents at the forensic interview and at the
preliminary hearing, but left out the oral sex that occurred during the third
incident, to which she testified at trial.
Following trial, the jury convicted Giles of the aforementioned offenses
and the court sentenced him to an aggregate term of imprisonment of 215 to
430 months, to be served consecutively to an existing federal sentence. 8
Giles filed post-sentence motions, which were denied, and this timely appeal
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5 18 Pa.C.S. § 6301(a)(1)(ii).
6 18 Pa.C.S. § 4304(a)(1).
7 18 Pa.C.S. § 3127(a).
8 The Commonwealth, at sentencing, withdrew a prior praecipe for a Sexually
Violent Predator (SVP) hearing. Giles was classified as a Tier III offender under
the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.
§§ 9799.10–9799.41, and, therefore, he was ordered to undergo lifetime
registration with the Pennsylvania State Police as a sexual offender. 42
Pa.C.S. § 9799.15(a)(3).
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followed. Both Giles and the trial court have complied with Pa.R.A.P. 1925.
Giles raises two issues for our review:
1. Whether the trial court erred as a matter of law and/or
abused its discretion by permitting the Commonwealth to
admit Q.H.’s forensic interview video as a prior consistent
statement?
2. Whether the trial court erred as a matter of law and/or
abused its discretion by permitting Q.H.’s grandmother’s
testimony about the contents of an interview that she
observed between Q.H. and a police officer as a prior
consistent statement?
Appellant’s Brief, at 7.
At trial, which was held June 29, 2016 to July 1, 2016, over defense
counsel’s hearsay objection, the court admitted into evidence the video of
Q.H.’s forensic interview. The forensic interview took place the previous year,
on March 11, 2015. The trial court ruled the interview video was admissible
as a prior consistent statement. See Pa.R.E. 613(c). See also
Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005) (prior
consistent statements of child victim of sexual assault, offered to corroborate
in-court testimony, are not hearsay).
In reviewing a trial court’s ruling on the admissibility of evidence, our
standard of review is one of deference. It is firmly established that
“[q]uestions concerning the admissibility of evidence lie within the sound
discretion of the trial court, and [a reviewing court] will not reverse the court’s
decision on such a question absent a clear abuse of discretion.”
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Commonwealth v. Chmiel, 738 A.2d 406, 414 (Pa. 1999). An abuse of
discretion requires:
not merely an error of judgment, but 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.
Chmiel, 738 A.2d at 510, citing Commonwealth v. Widmer, 744 A.2d 745,
753 (Pa. 2000) (citation omitted).
Pennsylvania Rule of Evidence 613(c) provides:
(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).
At trial, Q.H. testified that the first sexual assault occurred in April of
2014, sometime before Easter. N.T. Jury Trial, 7/1/16, at 151, 159-60.9 She
testified that the second assault occurred about a week later, id. at 160, and
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9 In 2014, Easter was celebrated on April 20.
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the third in July of 2014, the day before her birthday, which is July 29. Id. at
169.
On cross-examination, defense counsel challenged this testimony,
inferring either fabrication, or inaccurate or faulty recollection, by referring to
the March 11, 2015 forensic interview with Dr. Susan Nathan:
Q. Now, do you remember when you were interviewed by Dr.
Susan Nathan, you told her that the first incident occurred
in July?
A. No.
Q. You don't remember that?
A. (Witness shakes head indicating a negative response.)
N.T. Jury Trial, 7/1/16, at 182 (emphasis added). Defense counsel again
referred to this later in his cross-examination:
Q. And I would like to go through the specific details of those
incidents again, one at a time. Now, we talked a little bit about
when it occurred and where it occurred. Do you definitively -- Do
you recall today whether you are saying it is April or July for this
first incident?
A. April.
Q. So your prior statement to Dr. Nathan that occurred in
July, that's not right?
A. No.
Id. at 191-92 (emphasis added).
We point out that nowhere in the transcript of the forensic interview
does Q.H. ever mention that the first incident, or any of the incidents for that
matter, occurred in July. In fact, Dr. Nathan asked Q.H. how old she was
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when this occurred, to which Q.H. replied, “Ten.” Forensic Interview, 3/11/15,
at 9. With respect to pinpointing a time, Q.H. stated only that she was “in
fifth” grade. Id.The victim was subjected to extensive cross-examination in an attempt
to discredit her recollection of the incident in question. See N.T. Jury Trial,
7/1/16, at 180-244. Review of the record indicates the character of
impeachment “was such that the trial court could reasonably exercise its
discretion to permit admission of evidence of prior consistent statements to
corroborate the child victim’s impeached testimony.” Hunzer, supra at 513,
quoting Commonwealth v. Willis, 552 A.2d 682, 693 (Pa. Super. 1988).
See also Official Comment to Pa.R.E. 613 (“Pa.R.E. 613(c)(2) is arguably an
extension of Pennsylvania law, but is based on the premise that when an
attempt has been made to impeach a witness with an alleged prior
inconsistent statement, a statement consistent with the witness’s testimony
should be admissible to rehabilitate the witness if it supports the witness’s
denial or explanation of the alleged inconsistent statement.”) (emphasis
added). We conclude, therefore, that the trial court did not abuse its
discretion in admitting the forensic interview as a prior consistent statement
to rehabilitate the inference of faulty memory. See Pa.R.E. 613(c); Chmiel,
supra. See also Commonwealth v. Willis, supra (child’s prior consistent
statements may be admissible to rebut what jury may presume to be inherent
in any child’s account of such abuse, including decay of original memory).
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The court also admitted into evidence, as a prior consistent statement,
Q.H.’s grandmother’s testimony about the contents of an interview between
the victim and a police officer, at the hospital emergency room, which occurred
immediately after Q.H. disclosed the incidents to her mother. See N.T. Jury
Trial, 7/1/15, at 274-76. The trial court stated that this hearsay testimony
was admitted as a prior consistent statement for the same reasons and under
the same law as the forensic interview. See id. at 275; see also Trial Court
Opinion, 7/18/17, at 7 (“[Grandmother’s] statement also qualifies as a prior
consistent statement, admissible under Hunzer. Furthermore,
[Grandmother’s] statement was offered in response to [Giles’] allegations of
fabrication and improper motive.”).
Grandmother testified at trial, as follows:
Q: I would like to call your attention to the date on and around
[when Q.H.] first disclosed to anyone about what happened to her
and the defendant, Michael Giles.
A: Yes.
Q: Can you tell the jury, are you familiar with an issue that came
up relating to photographs that she sent to another boy in school?
A: Yes, I’m very familiar with it.
Q: And when you were made aware of it, without going into the
details of what happened with the photographs, how did you react
to that and what was your course of action?
A: I was in shock. And I was requested to actually appear with
the principal at the school to have a discussion with [Q.H.].
Q. Outside of what that discussion was, did you have any advice
or anything to tell [Q.H.’s] mother, about how to handle that
situation?
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A. Yes.
Q. Without going into the details of that, were you present when
[Q.H.], for the first time went into details about the things that
happened to her?
A. Yes.
Q. And who was doing that interview, do you recall, and where
was that taking place?
A. It was a Pittsburgh police officer that was present. Sorry, at
this point I can't remember her name.
Q. That’s fine.
A. And it was myself, and we were in the emergency room at
Mercy Hospital with [Q.H.].
Q. All right. And the limited question I want to ask you about, and
I don’t want you to go into everything [Q.H.] said.
A. Understood.
Q. But during that first initial interview in the emergency room, do
you recall [Q.H.] making a statement that Michael Giles had said
something to the effect of the first time this will hurt and then it
won't hurt after that?
A. I do.
Q. Do you also remember [Q.H.] stating, during that initial
interview, that Michael Giles had performed oral sex on
her, that is, he did put his mouth on her vagina?
A. I do.
See N.T. Jury Trial, 7/1/15, at 272-74 (emphasis added).
The court admitted this statement as a prior consistent statement to
Q.H.’s previous trial testimony, in which she stated that on the third incident,
after Giles had sexual intercourse with her, he “put his mouth” on her “girl
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parts.” Id. at 174. She further clarified that her “girl parts” was her vagina.
Id. Defense counsel cross-examined Q.H. as follows:
Q: When you testified on direct examination, in relation to the
third incident, one of the things that you mentioned was that
after the sperm was cleaned up by [the] boxer shorts or
shirt, whichever you choose, Michael Giles placed his lips on
your girl parts; do you recall testifying to that?
A: Yes.
Q: You will agree with me that you never mentioned that to Dr.
Susan Nathan in your interview?
A: I know.
Q: And you’ll agree with me that you never mentioned that
when you testified in front of the magistrate at the
preliminary hearing, correct?
A: (Witness nodded head indicating an affirmative answer).
N.T. Jury Trial, 7/1/16, at 247-48.
As the trial court properly noted, Grandmother’s testimony as to the
interview between Q.H. and the police officer was admissible as a prior
consistent statement in response to cross-examination, which inferred
fabrication and improper motive, i.e., to distract her mother when she
confronted Q.H. about sending pictures from her phone to a boy at school.
The trial court properly allowed the Commonwealth to rehabilitate the witness
by eliciting prior consistent statements that the victim had made. See Pa.R.E.
613(c). We find no abuse of discretion. Chmiel, supra.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2018
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