Com. v. Seing, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUYNGOV SEING :
:
Appellant : No. 682 EDA 2019
Appeal from the Judgment of Sentence Entered February 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013693-2014
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 22, 2021
Suyngov Seing (Appellant) appeals from the judgment of sentence
imposed in the Philadelphia County Court of Common Pleas following his jury
conviction of rape of a child1 and related offenses for the repeated sexual
assault of his then-minor daughter, E.S. (Victim). Appellant’s issues on appeal
focus on the trial court’s ruling permitting the Commonwealth to play for the
jury a prior video interview with Victim. He asserts the interview was not
admissible as a prior consistent statement pursuant to Pennsylvania Rule of
Evidence 613(c) and included prejudicial hearsay statements, and that the
trial court erred by refusing to grant a mistrial. For the reasons below, we
affirm.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3121(c).
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The trial court summarized the facts presented during Appellant’s jury
trial as follows:
[Victim] is Appellant’s biological daughter. At trial, [Victim]
testified to a continual pattern of abuse by Appellant, which began
when [she] was three years old and ended when she was ten.
[Victim] testified that the first incident that she remembered was
when Appellant forced her to watch a pornographic movie, which
depicted a women giving men oral sex, and then told her to do
what she saw on the video. Appellant then forced [Victim] to
perform oral sex on him. [Victim] explained that forcing her to
perform oral sex was the “most common” way that Appellant
sexually abused her: it happened “whenever he got the chance”
in the bedrooms, bathrooms, living room, and basement. There
were also several incidents in which Appellant licked her breasts
and groped her over her clothes. When [Victim] was in
kindergarten, her father also began to frequently have vaginal sex
with her. [Victim] testified that Appellant would lay her on the
bed and vaginally penetrate her with his hands and penis.
Appellant never wore a condom and would ejaculate into a paper
towel. Appellant repeated this conduct “whenever he could,”
“hundreds of times” and at some points this was “around once a
week, if not more[.]”
At trial, [Victim] testified that she has difficulty putting
memories in a timeline. She testified that “a lot of [her] memories
are just chunks of memories.” She testified that she doesn’t
remember a lot of her childhood and that many of her memories
before ten years old are not entirely clear in her head. On cross-
examination, [Victim] was extensively questioned about having
problems with memories from ages ten to seventeen. The defense
drew attention to the fact that [Victim] suffered seven concussions
in seven years and that she “doesn’t remember a lot of [her]
childhood.” Defense counsel also asked her about inconsistencies
with what [she] reported during a [Philadelphia Children’s Alliance
(PCA)] interview, at a preliminary hearing, and during trial.
Following [Victim’s] cross[-]examination, the Commonwealth
moved to admit a video recording of [Victim’s] interview with
[PCA], pursuant to Pa.R.E. 613. Defense counsel objected,
arguing that the video was not an admissible prior consistent
statement and the proffered evidence was cumulative. The
Commonwealth countered:
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Your Honor, my response to that would be that during
Counsel’s cross[-]examination of the complainant, he asked
the complainant questions like have you ever said that
before. He was highlighting inconsistencies, perhaps, in her
testimony today versus when she spoke about this to law
enforcement. I think he specifically said, Did you ever tell
SVU or PCA about that. And her answer directly related to
telling SVU and PCA. Now, that has been called into
question. I think that the fact finder needs to be able to see
what she has said at prior – at her prior statement based on
Counsel’s questioning.
This court agreed with the Commonwealth and admitted the
video.
Two people testified to learning that [Victim] was abused
prior to her disclosure to authorities or prior to a head injury.[2]
Saovleak “Noury” Khim, a friend to [Victim] during middle school
and high school, testified that she learned of [Victim’s] abuse prior
to any head injury that [Victim] suffered. At thirteen years old,
while in the eighth grade, Saovleak told [Victim] about being
molested and [Victim] responded “that someone in her family
sexually abused her when she was younger.” [Victim] did not
provide details or tell her who abused her. The following year, in
the ninth grade, [Victim] told Khim that she kept having
flashbacks of her sexual abuse, that she could not forget about it,
did not know what to do about it, and that [Victim] would text her
at night that she was having trouble sleeping because of it.
Camile Coleman testified that she was [Victim’s] roommate
at Fairmount Behavioral Hospital in September of 2014. Following
[Victim’s] discovery of her impending discharge, [she] disclosed
to Camile that “she was repeated[ly] assaulted by someone within
her family.” Camile testified that [Victim] told her that she was
to watch a pornographic video and that she was raped and
molested.
Trial Ct. Op., 12/31/19, at 2-4 (record citations omitted).
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2 Contrary to the trial court’s finding, the record reveals that Victim told only
one witness about the abuse before she suffered a series of head injuries
beginning at age 14 — Savokeak “Noury” Khim. See N.T., 8/15/18, at 85
(Victim’s first concussion was at age 14).
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Victim did not report the abuse to police until she was 17 years old,
while she was hospitalized at Fairmount Behavioral Health following a suicide
attempt. On September 19, 2014, the Department of Human Services hotline
received an anonymous call reporting that Victim had been sexually abused
by her father. See Affidavit of Probable Cause, 10/30/14, at 2. The
Philadelphia Police met with Victim’s mother and Appellant on September 26,
2014. Id. Victim’s mother related that Victim first told her about the abuse
on September 20th. Id. On September 30, 2014, Victim submitted to a
forensic interview with PCA. Id. During that interview, Victim reported that
Appellant had sexually abused her from the ages of three to 10. Id. It was
this interview that was videotaped and played at trial over Appellant’s
objection.
Appellant was subsequently charged with numerous sexual offenses.
The case proceeded to a jury trial. On August 20, 2018, the jury found him
guilty of rape of a child, involuntary deviate sexual intercourse with a child,
indecent assault (less than 13 years of age), incest, endangering the welfare
of a minor, corruption of minors, and unlawful contact with a minor.3 On
February 8, 2019, Appellant was sentenced to an aggregate term of 25 to 50
____________________________________________
318 Pa.C.S. §§ 3123(b), 3126(a)(7), 4302(a), 4304(a)(1), 6301(a)(1)(ii),
6318(a)(1).
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years’ imprisonment, followed by 14 years’ probation.4 Appellant is also
required to register as a Tier III sexual offender for his lifetime. See 42
Pa.C.S. § 9799.14(d)(2) (Tier III sexual offenses), 9799.15(a)(3) (individual
convicted of a Tier III sexual offense shall register for life); N.T. 2/8/19, at
49. This timely appeal followed.5
Appellant presents three, related issues on appeal:
1. Did the lower court not err by allowing a video interview of
[Victim], produced by [PCA], to be played before the jury when
the interview was not admissible as a prior consistent statement?
2. Did the lower court not err by allowing a video interview of
[Victim], produced by [PCA], to be played before the jury when
the interview contained prejudicial hearsay statements, including,
but not limited to a statement by [Victim] that [she] had heard
from her mother that when her mother told [Appellant] of the
allegations against him [Appellant] said that he would kill himself?
3. Did the lower court not err by refusing to grant a mistrial after
the admission of a hearsay statement, made during the playing of
[Victim’s] video interview from [PCA], that [Victim] had heard
from her mother that when her mother told [Appellant] of the
allegations against him [Appellant] said that he would kill himself
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4 Specifically, the trial court imposed consecutive terms of 20 to 40 years’
imprisonment for rape of a child, 2½ to five years for incest, 2½ to five years
for corruption of minors, and two 7-year probationary terms for indecent
assault and endangering the welfare of minors. The trial court imposed the
concurrent sentences of 20 to 40 years for IDSI and 10 to 20 years for
unlawful contact with a minor.
5 On March 11, 2019, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal within 30 days. Appellant
complied with the court’s directive and filed a concise statement that was
date-stamped as received on April 10, 2019, although it was not docketed
until the following day. See Appellant’s Statement of Matters Complained of
Pursuant to Pa.R.A.P. 1925(b), 4/10/19.
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and a curative instruction was insufficient to undo the prejudice
endured by [Appellant] when the jury heard the statement?
Appellant’s Brief at 3.
In his first issue, Appellant contends the trial court erred when it
admitted, as a prior consistent statement, Victim’s video interview conducted
by PCA. Appellant’s Brief at 7. He agrees a witness’s prior consistent
statement is admissible to rebut a charge that, inter alia, the witness has a
faulty memory. See id. at 8, citing Pa.R.E. 613(c). However, Appellant
emphasizes that, under those circumstances, the prior statement is admissible
“only if [it] is made before the faulty memory existed.” Appellant’s Brief at
9. Here, Appellant concedes he “attack[ed] the memory of [Victim] based on
a series of concussions that she suffered between the age of ten, when the
alleged conduct was reported by her to have stopped, and the age of
seventeen, when she ma[d]e the video-taped statement at . . . PCA.” Id. at
8-9. Nevertheless, Appellant asserts the trial court “mistakenly concluded
that the incidents which led to [Victim’s] faulty memory[ — the series of
concussions —] occurred after the video-taped statement was taken.” Id. at
9. See also Trial Ct. Op. at 8. Accordingly, he concludes the trial court erred
in admitting the prior consistent statement under Rule 613(c). Furthermore,
Appellant insists the error was not harmless. Appellant’s Brief at 9.
Our review of a trial court’s evidentiary rulings is well-established:
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
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constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
Commonwealth v. Bond, 190 A.3d 664, 667 (Pa. Super. 2018) (citation
omitted). “Error is harmless where the appellate court concludes beyond a
reasonable doubt that the error could not have contributed to the verdict.”
Commonwealth v. Lively, 231 A.3d 1003, 1009 (Pa. Super. 2020) (citations
omitted). Moreover, we note an appellate court may affirm a trial court’s
ruling on any basis, and “may affirm a judgment based on harmless error even
if such an argument is not raised by the parties.” See Commonwealth v.
Allshouse, 36 A.3d 163, 182 (Pa. 2012); Commonwealth v. Wilcox, 174
A.3d 670, 674 n.4 (Pa. Super. 2017).
The admission of a witness’s prior consistent statement is governed by
Pennsylvania Rule of Evidence 613(c), which provides, in pertinent part:
(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)(1)-(2). Thus, pursuant to subsection (c)(1), the prior
statement must have been made before the alleged “fabrication, bias,
improper influence or motive, or faulty memory.” Pa.R.E. 613(c)(1). See
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Commonwealth v. Baker, 963 A.2d 495, 505 (Pa. Super. 2008) (concluding
video of child victim’s interview with forensic pediatrician was admissible as
prior consistent statement when defense “insinuated” that victim’s trial
testimony was “fabricated” by Commonwealth and victim’s mother).
In the present case, the trial court determined the PCA interview was
admissible under Rule 613(c)(1). See Trial Ct. Op. at 5-8. The court
emphasized defense counsel’s cross-examination of Victim, during which
counsel “strongly implied that [Victim] had a faulty memory.” Id. at 6.
Counsel questioned Victim about her history of concussions and continuous
medical care for them. See id. at 7. The trial court also noted defense
counsel’s questioning regarding the “inconsistencies” between Victim’s trial
testimony in August of 2018, and her testimony at the preliminary hearing
conducted in December of 2014. Id. at 7-8. The court concluded counsel’s
cross-examination “implied charges of fabrication and faulty memory” such
that the PCA interview was admissible as a prior consistent statement. Id. at
8. The court opined:
Under Rule 613, a prior consistent statement may be
admitted after a witness is expressly or impliedly accused of
fabrication or faulty memory, and the [prior consistent statement]
must be made before the charge of fabrication or faulty memory
existed. Here, [Victim] gave her PCA interview when she first
disclosed the abuse, sufficiently before trial, and sufficiently
before enduring countless attacks and before defense counsel
implied she had a poor memory.
The statements recorded . . . during the PCA interview were
made before [Victim’s] head injuries and were consistent with the
other testimony that she gave. This court admitted the video
because of the degree of impeachment and the extent and nature
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of cross-examination were determined to warrant the statement’s
admission. Thus, [Victim’s] PCA video [interview] was an
admissible prior consistent statement under Rule 613[.]
Id.
To the extent the trial court determined the PCA interview was
admissible because it occurred before Victim suffered a series of concussions,
we agree with Appellant that this finding is controverted by the record. Victim
testified Appellant began sexually abusing her when she was age “three or
four,” and “stopped around the age of ten.” See N.T., 8/15/18, at 39, 89.
However, Victim stated she did not receive her first concussion until she was
14 years old, and then had seven more concussions over the next seven
years.6 See id. at 85. Victim was interviewed by PCA on September 30,
2014, when she was 17 years old. See id. at 36, 144. Therefore, her PCA
interview occurred after she suffered a series of concussions. Accordingly,
because the prior consistent statement was not made before the incidents that
resulted in her faulty memory, we agree the statement was not admissible
under Rule 613(c)(1).
Nevertheless, the Commonwealth insists Victim’s prior consistent
statement was admissible under Rule 613(c)(2). See Commonwealth’s Brief
at 12. We agree. See Wilcox, 174 A.3d at 674 n.4 (“This Court is not bound
by rationale of a trial court and may affirm the trial court’s order on any
basis.”) (citation omitted).
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6 Victim did not identify the date of her last concussion, or whether she
suffered any after she provided the PCA interview.
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Subsection (c)(2) permits the introduction of a witness’s prior consistent
statement if: (1) “if the opposing party is given an opportunity to cross-
examine the witness about the statement[; (2)] the statement is offered to
rebut an express or implied charge of . . . having made a prior inconsistent
statement, which the witness has denied or explained[; and (3)] the
consistent statement supports the witness’s denial or explanation.” Pa.R.E.
613(c)(2). Here, Appellant does not dispute he had the opportunity to cross-
examine Victim regarding the statement. Furthermore, we agree with the trial
court that defense counsel’s cross-examination of Victim “implied charges of
fabrication and faulty memory.” See Trial Ct. Op., at 8; N.T., 8/15/18, at 83-
87, 89-93, 101-05. In particular, defense counsel emphasized that Victim
made several claims at trial that contradicted her statement to police and her
testimony at Appellant’s preliminary hearing four years earlier. See N.T.,
8/15/18, at 89-93 (Victim testified at trial that some of the abuse over the
years occurred at her cousin’s house, but at preliminary hearing testified that
only the first incident occurred there); 101-02 (Victim testified at trial that her
mother “walked in” during one assault, but Victim never reported this to
police); 104-05 (Victim testified at trial that her brother opened bedroom door
after an assault, but during the preliminary hearing stated her brother was
present during an assault).
Furthermore, at trial Victim attempted to explain each allegedly
inconsistent statement. See N.T., 8/15/18, at 83-84 (explaining her
memories of childhood are “very isolated” and “just chunks of memories”);
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92-93 (explaining “[a] lot more memories [had] come back to “ her over the
four years since she first reported the abuse); 101-02 (explaining the incident
her mother walked in on was “one of those memories that came back to” her);
104-05 (explaining she must have misheard question at preliminary hearing
because she never “recall[ed her brother] being in the room”). Therefore, the
prior consistent statement — her videotaped interview with PCA — was
admissible under Rule 613(c)(2) to support her explanations regarding her
prior inconsistent statements at the preliminary hearing and to police. See
Commonwealth v. Harris, 852 A.2d 1168, 1175-76 (Pa. 2004) (witness’s
prior consistent statement to police, identifying appellant as shooter, was
properly admitted pursuant to Rule 613(c)(2); although statement to police
postdated witness’s statement to 911 operator where witness did not identify
appellant as shooter, rehabilitation under subsection (c)(2) does not require
consistent statement be made before inconsistent statement). Accordingly,
we conclude the trial court did not err in admitting Victim’s PCA interview as
a prior consistent statement under Rule 613(c)(2).
Next, Appellant contends the trial court erred when it permitted the jury
to hear inadmissible hearsay statements contained in Victim’s PCA interview.
Appellant’s Brief at 9. Specifically, during the interview, Victim stated her
mother told her that, when Appellant was confronted with the allegations, he
said he would kill himself. See N.T., 8/15/18, at 146. Appellant asserts this
statement was offered to prove he “felt he was guilty” and “tip the scale in
favor of conviction.” Appellant’s Brief at 13. Moreover, Appellant argues
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admission of the statement violated his constitutional right to confront his
accusers pursuant to Crawford v. Washington, 541 U.S. 26 (2004). See
id. at 10.
Here, after Victim’s video interview was played for the jury, Appellant’s
counsel objected to hearsay statements that were made by Victim during the
interview. See N.T., 8/15/18, at 145-46. Specifically, counsel argued that
when Victim was asked whether her mother ever spoke to Appellant about the
allegations, Victim responded:
Yes, my mom went to see him . . . and spoke to him, and his
response was along the lines of, I just want to see her one more
time, and then I’ll kill myself.
Id. at 146. Counsel averred that Appellant’s statement to Victim’s mother “is
tantamount to an admission” and moved for a mistrial. Id. at 146. The
Commonwealth responded by offering to call Victim’s mother during the
Commonwealth’s case “to allow her to . . . confirm or deny the existence of
those conversations.”7 Id. at 147. The Commonwealth also agreed to a
curative jury charge, instructing the jury “not to consider anything that was
[stated] outside [Victim’s] presence.” Id. at 147. The trial court denied the
motion for a mistrial, and provided the following curative instruction, which
was agreed to by both parties:
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7 The Commonwealth did, indeed, call Victim’s mother as a witness during its
case-in-chief, and Appellant did not ask her about the alleged out-of-court
statement Victim referred to in her PCA interview. See N.T., 8/16/18, at 27-
39.
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Ladies and gentlemen of the jury, you heard in the PCA video . . .
that [Victim] discussed a conversation that occurred between her
mother and her brother, and between her mother and her father
outside of her presence. You are not to consider that as evidence
and not to consider that when you are evaluating the evidence in
this case.
See id. at 148, 150-51. Further, during its final charge to the jury, the court
reiterated:
You have heard evidence that [Victim] made a statement on
an earlier occasion that was consistent with her testimony. This
evidence may be consider[ed] by you for one purpose only, that
is, to help you judge the credibility and weight of the testimony
give my [Victim] as a witness in this trial.
You may not regard evidence of a prior consistent statement
as proof of the truth of any matter asserted in that statement.
N.T., 8/16/18, at 165.
With this background in mind, we note hearsay is a statement the
declarant makes out of court that is offered in evidence “to prove the truth of
the matter asserted in the statement.” Pa.R.E. 801(c)(1)-(2). Out of court
statements that are offered for another reason, however, are not hearsay.
Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999). Moreover, the
Pennsylvania Rules of Evidence list several exceptions to the hearsay rule,
including a statement by an opposing party. See Pa.R.E. 803(25). When a
trial court instructs a jury to disregard a statement, we presume the jury
heeded the court’s instruction. See Commonwealth v. Walter, 119 A.3d
255, 267 (Pa. 2015).
We conclude no relief is warranted. First, we note Appellant’s argument
regarding his confrontation rights fails. In Crawford, the United States
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Supreme Court held that “testimonial statements of a witness who did not
appear at trial” were inadmissible “unless [the witness] was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.”
Crawford, 541 U.S. at 53–54. Here, the layered hearsay statement
contained in Victim’s PCA interview was a statement by Victim’s mother to
Victim, relaying a statement made by Appellant to Victim’s mother. Because
Victim’s mother testified at trial, Appellant had the opportunity to cross-
examine her regarding the out of court statement. Thus, there was no
Crawford violation. See id. at 59 n.9 (“[W]hen the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at
all on the use of his prior testimonial statements.”).
Furthermore, as the trial court explains in its opinion, the statement by
Appellant to Victim’s mother is not excluded by the rule against hearsay
“because it is the statement of a party opponent.” See Trial Ct. Op. at 10.
Pursuant to the Pennsylvania Rules of Evidence, a statement “offered against
an opposing party” that was, inter alia, “made by the party in an individual
capacity,” is “not excluded by the rule against hearsay regardless of whether
the declarant is available as a witness.” Pa.R.E. 803(25)(A). Thus, even if
the trial court did not instruct the jury to disregard this statement — which it
did — Appellant’s hearsay argument has no merit.
Lastly, Appellant contends the trial court abused its discretion when it
failed to grant his request for a mistrial following the introduction of his
purported statement to Victim’s mother that he intended to kill himself.
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Appellant’s Brief at 14. He insists “[t]he only reasonable inference the jury
could draw from this statement is that the professor of it is guilty of the alleged
act” and “[n]o curative instruction . . . could ever un-ring that bell[.]” Id.
Our review of a trial court’s ruling denying a motion for mistrial is well-
settled:
We review the trial court’s decision to deny a mistrial for an
abuse of discretion. A mistrial is necessary only when “the
incident upon which the motion is based is of such a nature that
its unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.”
A mistrial is inappropriate where cautionary instructions are
sufficient to overcome any potential prejudice.
Commonwealth v. Bedford, 50 A.3d 707, 712–13 (Pa. Super. 2012).
In the present case, after Appellant objected to the hearsay statement
in the video, the trial court instructed the jury “not to consider” the statement
by Victim’s mother. See N.T., 8/15/18, at 151. Counsel for Appellant
“agreed” to the wording of the instruction, and made no further objection.
See id. at 150-51. We presume the jury followed the court’s instruction. See
Walter, 119 A.3d at 267. Moreover, the court later instructed that it should
consider the Victim’s PCA interview only to assess her credibility and it was
not to consider her prior statement “as proof of the truth of any matter
asserted in that statement.” N.T., 8/16/18, at 165. Appellant fails to explain
why these cautionary instructions were insufficient to overcome any prejudice
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resulting from purported hearsay statements in the PCA interview.8 Thus, no
relief is warranted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/21
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8 Appellant’s sole argument appears to be that the only inference the jury
could draw from Appellant’s alleged statement to Victim’s mother is that he
was guilty of the offense. See Appellant’s Brief at 14. However, it would also
be reasonable to assume Appellant threatened to kill himself because he
recognized the damage was already done, that is, even fabricated allegations
of sexual abuse would destroy his relationship with his daughter, as well as
his life.
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