Com. v. Leone, P.

J-S26037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHIL LEONE, :
:
Appellant : No. 3307 EDA 2017
Appeal from the Judgment of Sentence June 5, 2017
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000626-2016
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
CONCURRING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 06, 2018
I agree that Appellant’s judgment of sentence should be affirmed in part
and reversed in part, but write separately to address issues two and five.
I. Issue #2 – Photograph of C.S.
Regarding the admission of a photograph depicting C.S. at the age of
five, the Majority states that we must examine whether the photographs are
inflammatory. I disagree. Commonwealth v. Vucich, --- A.3d ---, 2018 WL
4061576 (Pa.Super. August 27, 2018), recently addressed the same issue.
Therein, the Commonwealth introduced two photographs of the victim, who
was twenty at the time of trial, depicting his appearance when the sexual
abuse actually occurred. The trial court, like my colleagues today, filtered the
photograph through the inflammatory inquiry. Vucich determined that test
was inapplicable. We stated that, “The usual context for a challenge to a
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* Former Justice specially assigned to the Superior Court.
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photograph is . . . a gruesome photograph in which the relevance of the item
is obvious and undisputed.” Id. at *2. However, when a party challenges the
admission of a photograph on general irrelevance grounds, the inflammatory
inquiry is irrelevant. That bar is simply a specific prohibition on otherwise
admissible and relevant evidence.
Appellant, like Vucich, did not claim that the photographs were
inflammatory in that the photographs displayed carnage or some other subject
matter which tends to trigger visceral feelings. Instead, the argument was
that there was no need to establish what C.S. looked like at age five, as that
point was irrelevant. Vucich discussed cases holding that pictures of a
homicide victim as a life in being were generally irrelevant, and extended that
principle to this situation.
There are obvious parallels between the Commonwealth’s seeking
to establish through photographic proof what a homicide victim
looked like around the time of his or her death, and the facts sub
judice, in which the Commonwealth sought to show the victim’s
appearance near the time of the crimes. Just as such evidence is
generally irrelevant in a homicide prosecution—at least in cases
where the “life in being” element is not in question—so too were
C.D.’s childhood pictures irrelevant, as Appellant did not contest
that C.D. was actually a child at the times he testified that the
abuse occurred. There was thus no need to prove to the jury what
C.D. looked like as a child, rendering the evidence irrelevant.
We further disagree with the Commonwealth’s assertion that the
evidence was relevant because the photographs “were necessary
to visually depict his appearance at the time the crimes occurred.”
Commonwealth’s brief at 13. It is undeniable that, due to the
passage of time in this case, photographs or some other type of
demonstrative evidence were indeed necessary to establish C.D.’s
appearance at the time of the crimes. The Commonwealth’s
argument, however, begs the question by assuming that the
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victim’s visual appearance at the time of the crimes needed to be
established in the first place.
Id. at *4 (footnote omitted).
The Commonwealth herein asserts that the photographs were relevant
to establish that C.S. was less than thirteen at the time of the crimes, but that
fact was not in dispute and was testified to by the victim as well as her mother.
For the reasons discussed in Vucich, I conclude that the photographs were
irrelevant and therefore inadmissible. Nevertheless, I would conclude the
error was harmless.
Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minimis; (2) the erroneously
admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (quoting
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)).
Although the harmless error doctrine places the burden on the
Commonwealth to prove beyond a reasonable doubt that the error could not
have contributed to the verdict, the Commonwealth did not assert this
doctrine. However, our jurisprudence does not require the Commonwealth to
raise the matter in its brief. As our Supreme Court stated in Commonwealth
v. Moore, 937 A.2d 1062, 1073 (Pa. 2007):
We recognize that the Commonwealth has the burden of proving
beyond a reasonable doubt that the error could not have
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contributed to the verdict, and that it does not offer a harmless
error argument in its brief. Nonetheless, an appellate court may
affirm a valid judgment based on any reason appearing as of
record, regardless of whether it is raised by the appellee.
Id. at 1073 (citations omitted).
I would therefore find that the error was harmless beyond a reasonable
doubt on the grounds that any prejudice was de minimis, for substantially the
same reasons expressed in Vucich.
We find that any prejudice was de minimis and therefore the error
was harmless beyond a reasonable doubt. There is a natural
overlap between what the photographs show and how the
prosecution uses the photographs, and any resulting prejudice. In
[Commonwealth v. Story, 383 A.2d 155 (Pa. 1978)], our
Supreme Court noted that the photographs were introduced along
with testimony of the victim’s “family status” and “other events of
a personal nature.” Story, supra at 157. . . . This circumstance
is more akin to Commonwealth. v. Rivers, 644 A.2d 710, 713
(Pa. 1994), in which our Supreme Court concluded that
introducing the victim’s photograph was harmless beyond a
reasonable doubt:
In the instant case the photograph was identified by
the decedent’s daughter, who merely related when
and where the photograph was taken and verified that
it was an accurate depiction of her mother
immediately prior to her death. The testimony
surrounding the photograph in this case was limited.
Further, the actual polaroid snapshot of the victim
does not portray her as particularly old or frail, nor
does it reveal that she was an amputee seated in a
wheelchair, as in the photograph the victim is seated
behind a table. Although admission of the photograph
was clearly improper and irrelevant, in light of the
overwhelming circumstantial evidence of the
appellant’s guilt, we conclude that the error was
harmless.
Rivers, supra at 716.
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Therefore, while the photographs were irrelevant, their use was
limited, and, according to the parties’ descriptions of the items,
the exhibits simply depicted C.D.’s general appearance at the time
of these crimes. While improperly introduced, we conclude that
any prejudicial effect was de minimis.
Related to this point, there is one obvious distinction between the
scenarios in the examined homicide cases and these
circumstances. In a homicide prosecution, but for the introduction
of demonstrative evidence of the victim, the jury will have no
frame of reference for the victim’s appearance. In contrast, the
jury was obviously aware of the fact that C.D. was once a child,
and it takes no great leap of imagination to imagine what a witness
may have looked like as a child. This point further highlights the
de minimis prejudice.
Vucich, supra at *5.
As the Majority notes, the photograph at issue simply depicted C.S., and
I therefore find the error was harmless beyond a reasonable doubt.
II. Issue #5 – Prior consistent statement
Appellant asserted that the trial court improperly allowed three
witnesses to testify regarding out-of-court statements. The Majority holds
that all three statements were admissible pursuant to Pa.R.E. 613, which
states 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
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(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).
The Majority largely adopts the trial court’s approach, which opined that
the prior consistent statements were admissible to rebut an implied charge of
fabrication. Additionally, the Majority approvingly cites Commonwealth v.
Giles, 182 A.3d 460 (Pa.Super. 2018), which sanctions an approach to prior
consistent statements that was disavowed by the more recent case
Commonwealth v. Bond, --- A.3d ---, 2018 WL 2947871 (Pa.Super. June
13, 2018).
In the particular context of prior consistent statements by child victims,
our precedents have suggested that all such statements are per se admissible
due to the unique considerations inherent to child abuse cases. The rationale
was that these statements are admissible for purposes of corroboration, not
rehabilitation. This theory was prominently expressed in Commonwealth v.
Willis, 552 A.2d 682 (Pa.Super. 1988) (en banc).
The general rule precluding corroboration of unimpeached
testimony with prior consistent statements is subject to
exceptions when particular circumstances in individual cases tip
the relevance/prejudice balance in favor of admission. Among the
common examples of such exceptions are prior consistent
statements which constitute prompt complaints of sexual assault
and prior consistent statements which constitute prior statements
of identification. Evidence of a prompt complaint of sexual assault
is considered specially relevant because (rightly or not) a jury
might question an allegation that such an assault occurred in
absence of such evidence.
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Prior consistent statements may also 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. . . . jurors 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 691–92 (citations and footnotes omitted).
Notably, Willis analyzed the admissibility of prior consistent statements
under a hearsay framework. “To the extent that prior consistent statements
are offered to prove the truth of the matter asserted therein, they are plainly
inadmissible hearsay. However, when they are offered to corroborate in-court
testimony, prior consistent statements are not hearsay.” Id. at 691. As noted
in Bonds, Willis predates the enactment of the Rules of Evidence:
The trial court cited [Commonwealth v. Hunzer, 868 A.2d 498
(Pa.Super. 2005),] 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
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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, 380 Pa.Super.
555, 552 A.2d 682, 691–92 (1988), appeal denied, 522 Pa. 583,
559 A.2d 527 (1989)).
The 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.
Bond, supra at *3-4 (footnote omitted).
Giles, relied upon by the Majority herein, cites and discusses both
Hunzer and Willis. In Giles, the child victim, Q.H., testified that the sexual
abuse started in April of 2014. Q.H. gave details of the crimes in a forensic
interview conducted March 11, 2015. On cross-examination, defense counsel
twice impeached Q.H. with the contents of the prior consistent statement,
alleging that Q.H. told the interviewer that the first incident occurred in July
of 2014.
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The impeachment was misleading. Our opinion noted, “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.” Id. at 462
(emphasis in original). Quoting Hunzer/Willis, we held that admission of the
forensic interview was permitted for corroborative purposes.
I submit that, to the extent Giles relied upon the per se corroboration
rule in Hunzer and Willis, that reliance is misplaced and superseded by
Bond.1 Nevertheless, I agree that Giles reaches the correct result, because
Giles incorrectly suggested that Q.H.’s memory of the events was faulty by
posing a leading question that she previously stated the first sexual assault
occurred in July. Since the prior consistent statement objectively disproved
that point, the prior statement was admissible per Rule 613(c)(1), which
permits introduction of a prior consistent statement to counter a charge of
“faulty memory and the statement was made before that which has been
charged existed or arose[.]”
With these points in mind, an examination of the trial court opinion and
the record compels my conclusion that only one of the three prior consistent
statements at issue was properly introduced pursuant to Rule 613. However,
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1 Bond recognized in a footnote that Hunzer could not be overruled by a
three-judge panel, but determined that Hunzer is “in harmony with Rule 613.
Willis, however, is not. We conclude that the Hunzer Court’s reliance on
Willis is dicta, and that Rule 613 and the Tender Years Act have superseded
Willis.” Bond, supra at *4 n.4.
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I would find that the error in introducing the remaining two statements was
harmless beyond a reasonable doubt.
Delineating the relevant dates is necessary, and I begin there. C.S.,
born in 1999, testified that the abuse started when she was between five and
six years old, and continued through age eleven or twelve. Sometime in
middle school, C.S. confided to her friend, E.L., that Appellant inappropriately
touched her. C.S. did not “go into much detail with it.” N.T. Jury Trial,
2/28/17, at 184. C.S. did not want E.L. to report what she said to anyone
else, and E.L. did not do so. In 2014, C.S. revealed the abuse to her mother,
S.B., who contacted the police. During the ensuing investigation, C.S. spoke
to Detective Matthew Rush.
The three prior consistent statements at issue are: (1) the statements
to E.L.; (2) the statements to C.S.’s mother; (3) the statements to Detective
Rush. Preliminarily, I note that the trial court’s opinion differs from its ruling
at trial. While the trial court is not confined to the ruling given at trial, the
trial court explicitly permitted introduction of all prior consistent statements
on the basis of Willis and Hunzer. When the Commonwealth attempted to
introduce the first prior consistent statement, the trial court was at first
skeptical of the Commonwealth’s theory.
[COMMONWEALTH] . . . I have several cases that say when the
testimony of Complainant is at the center of the case, that any
prior consistent statements which she would have made to [E.L.]
would be admissible to rebut the implication that her testimony
was fabricated.
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....
[T]he [c]ourt has discretion to allow anticipatory prior inconsistent
statements when the defense centered on attacking a witness’
credibility in a way that would permit introduction –
THE COURT: But I understand that the defense, at least at this
time, is that none of this is true.
[COMMONWEALTH]: Because the mother fabricated this. This is
a statement that came before the fabrication –
THE COURT: Where is the evidence mother fabricated?
[COMMONWEALTH]: It’s being implied through every question
he’s asked.
Id. at 180-81.
The judge declared a brief recess to review the law. When proceedings
resumed, the Commonwealth cited Willis, and the court added a citation to
Hunzer, remarking: “[T]he prior consistent statement may even be admitted
to corroborate unimpeached testimony of a child witness at the trial court’s
discretion[.]” Id. at 182-83. Appellant later objected to the introduction of
the other two prior consistent statements, and each time the trial court stated
that the evidence was admissible under Willis and Hunzer.
As I have discussed, Bond discredits that approach. Thus, the proper
inquiry is whether the prior consistent statements antedate the alleged
fabrication. The trial court opinion discusses that aspect as follows.
[Appellant] contends now that C.S. fabricated her testimony as a
result of the influence of her mother, who harbored animosity
towards [Appellant] from at least the time when [Appellant] took
C.S. shopping for bras at Wal-Mart, when C.S. was 10[-]years
[-]old. While mother may have felt this way, as we noted during
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the trial there was not evidence presented that was sufficient to
effectively charge that she had expressed these feelings such that
C.S. had been influenced to fabricate allegations of sexual abuse.
....
While the mother testified that she had asked on an unknown
number of occasions prior to the disclosure, whether [Appellant]
had been inappropriate with her, there was no evidence that
mother had thereby influenced C.S. to make a false disclosure of
abuse. Moreover, the timing of those inquiries is unknown.
Accordingly, the point in time at which C.S. was effectively
charged with fabrication or being subjected to improper influence
was the period between the report to police and trial. Therefore,
the hearsay statements at issue were properly considered "prior
consistent statements" within the meaning of the Rule, and, all of
the other requirements for admission having been satisfied, were
properly admitted.
Trial Court Opinion, 10/5/17, at 10-11.
I agree with portions of this analysis. Most importantly, I agree that
Appellant implied that C.S. fabricated the allegations due to the influence of
C.S.’s mother, S.B. Appellant, who was the paramour of S.B., suggested
throughout that S.B. harbored animosity towards Appellant as a result of that
relationship. I agree that Appellant repeatedly implied that C.S. fabricated
the allegations at the behest of her mother.
That said, I disagree with the trial court’s emphasis on the fact that
“there was no evidence that C.S.’s mother had thereby influenced [C.S.] to
make a false disclosure of abuse.” Id. at 11. I interpret this comment to hold
that the party opposing the introduction of a prior consistent statement must
produce proof of the corrupting motive, and to suggest that the court would
have sustained Appellant’s objection if he could actually prove that C.S.’s
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mother influenced C.S. to falsely implicate Appellant. I fail to see the
significance of the lack of proof as it relates to the Rule.
The need to analyze the prior consistent statements in relation to
Appellant’s theory, as opposed to whether Appellant has some proof of that
theory, is illustrated by Commonwealth v. Baker, 963 A.2d 495 (Pa.Super.
2008). In Baker, the Commonwealth charged Baker for sexual crimes
occurring between May 1, 2004, and December 1, 2005. On cross-
examination of the victim, who was seven-years-old at the time or time of
trial, counsel suggested that the victim had been told what to say at trial by
her mother and the prosecutor. Baker therefore upheld the admission of the
victim’s recorded interview as a prior consistent statement, as “defense
counsel’s questions at the very least insinuated that [the child] had been
improperly induced to fabricate her testimony by the prosecution and her
mother[.]” Id. at 505.
The Court in Baker did not examine whether Baker had actual proof
that the victim had been told what to say by her mother and the prosecutor.
The fact that counsel insinuated that the victim was fabricating her testimony
as a result of that corruption—regardless of whether such corruption actually
occurred—was the relevant point. Since Baker claimed that the victim
fabricated her testimony at trial through improper coaching, the video
predated that alleged corrupting influence. Nowhere did we suggest that the
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Commonwealth was permitted to introduce the statement unless Baker could
prove that the mother or prosecution influenced the child’s testimony.2
Viewing this case in light of what Appellant insinuated, I find that only
the prior consistent statement to E.L. was admissible. For ease of discussion,
I again quote the Rule:
(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[.]
Pa.R.E. 613(c) (emphasis added).
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2 In Commonwealth v. Montalvo, 986 A.2d 84, 96 (Pa. 2009), witness
Esther Soto gave a tape-recorded statement to police. Montalvo wished to
call Charles Kleber, a private investigator, who would testify that Soto
informed him that the police threatened her. The trial court denied the request
and our Supreme Court affirmed, emphasizing the importance of timing under
Rule 613:
At sidebar, trial counsel failed to provide the timing of Soto’s
statement to Kleber, and additionally failed to provide any of the
circumstances surrounding Soto’s prior consistent statement.
Therefore, at the time of the trial court’s ruling, the only facts
available for consideration were that Soto told an investigator-
hired by Appellant’s trial counsel—that the police had threatened
her. Under these circumstances, we conclude that the trial court
did not abuse its discretion in excluding Kleber’s testimony.
Id. at 96. Therefore, the proponent of the statement, not the party opposing
its introduction, must establish the timing.
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The statements to S.B. and Detective Rush were not made before the
alleged improprieties existed. Appellant postulated that C.S. and her mother
were together falsely accusing him of these crimes. Thus, C.S.’s report to her
mother, in Appellant’s telling, is an integral part of that conspiracy. In turn,
the statements to Detective Rush, would likewise be part of their scheme.
Accordingly, the statements are inadmissible.
On the other hand, I find that C.S.’s statements to E.L. are admissible,
as those statements predate Appellant’s allegations. If C.S. and her mother
were acting in concert to implicate Appellant, then C.S.’s statement to her
classmate could not possibly be part of that conspiracy. Absent some
suggestion that C.S. and S.B. were so devious that they banked on E.L.
ignoring C.S.’s wishes by informing the authorities—which clearly did not
happen as C.S. suffered the abuse for a lengthy period of time after her
disclosure to E.L.—then the revelations to E.L. clearly precede the alleged
fabrication. Therefore, those disclosures were properly admitted.3
Although I have determined that only the prior statement to E.L. was
admissible, I would further hold that the introduction of the other two
statements was harmless error. As noted supra, harmless error exists where,
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3 The trial court’s analysis states that prior consistent statements occurring
after “the period between the report to police and trial” would be inadmissible.
For the foregoing reasons, I disagree. That analysis ignores Appellant’s theory
that the report to the police was simply the natural culmination of their alleged
conspiracy to falsely accuse him of these crimes.
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inter alia, the error did not prejudice the defendant or was de minimis. A
primary criticism against the introduction of prior consistent statements is that
such evidence is cumulative.
Though often stated as an axiom without rationale, the primary
reasons for exclusion of evidence of prior consistent statements
are the need to avoid unnecessary repetition of cumulative
evidence, and the need to prevent the fabrication of evidence.
....
The general rule of exclusion of prior consistent statements, then,
is based not upon hearsay grounds but upon a general consensus
that the relevance of such evidence to
corroborate unimpeached testimony is ordinarily outweighed by
the danger of fraudulent manufacture of evidence, confusion of
issues, undue delay, and needless repetition of cumulative
evidence.
Willis, supra at 691 (emphasis in original).
As the trial court stated, the “disclosures lacked most of the details
regarding [Appellant]’s specific conduct,” Trial Court Opinion, 10/5/17, at 8,
and C.S. supplied far more detail in her trial testimony. Compare
Commonwealth v. Smith, 586 A.2d 957, 964 (Pa.Super. 1991) (“The
officers’ testimony included detailed accounts of the incidents which were
never supplied by S.L. herself, thereby greatly augmenting S.L.’s testimony.
We hold that the out-of-court statements do not fall within the prior consistent
statements exception to the hearsay rule.”). Furthermore, the statements
were cumulative of the properly-admitted consistent statement. I would
therefore hold that the statements, while erroneously admitted, did not
prejudice Appellant.
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President Judge Emeritus Bender concurs in result.
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