Com. v. Emarievebe, C.

J-A21030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLIFFORD E. EMARIEVEBE :
:
Appellant : No. 361 EDA 2019
Appeal from the Judgment of Sentence Entered November 8, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003424-2017
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 28, 2019
Appellant, Clifford E. Emarievebe, appeals from the judgment of
sentence entered on November 8, 2018, as made final by the denial of a
post-sentence motion on December 28, 2018, following his jury trial
convictions of involuntary deviate sexual intercourse with a child, 1 indecent
assault,2 and endangering the welfare of children.3 We affirm.
The facts of this case are as follows. In April 2016, Appellant moved
from Nigeria to Chester, Pennsylvania, where he lived with his then wife, M.M.,
and her ten-year-old daughter, E.T. (“the Victim”). N.T. Trial, 6/27/18, at
94-95. The pair later separated in June. Id. at 171 and 173. Even though
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1 18 Pa.C.S.A. § 3123(b).
2 18 Pa.C.S.A. § 3126(a)(7).
3 18 Pa.C.S.A. § 4304(a)(1).
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Appellant moved out of the martial residence, he sometimes drove M.M. to
work and then returned to the Victim’s home. Id. at 173. It was during this
time that Appellant sexually abused the Victim. Id. at 55.
In March 2017, the Victim told school officials that Appellant sexually
abused her. Trial Court Opinion, 4/5/19, at 2. The school then called M.M.,
and after she inquired as to what occurred, the Victim “told her that
[Appellant] was touching her.” Id. On March 27, 2017, Officer Chris Senkow
came to talk to the Victim. Id. During this conversation, the Victim relayed
that Appellant had touched her “at least five times in the last month” and
“described the details of three of those incidents.” Id. Specifically, the Victim
reported that, “Appellant inserted his penis in her mouth[,] [Appellant] put his
hand down her pants and penetrated her vagina with his finger,” and lastly,
Appellant “put his penis in [the Victim’s] anus.” Id. at 5.
Appellant’s jury trial commenced June 27, 2018. The trial court
recounted the Victim’s trial testimony explaining the sexual abuse as follows.
[On June 27, 2018 the Victim] took the stand to testify.
Consistent with what had been relayed to Officer [] Senkow, as
well as [during her forensic interview with] Jodi Kaplan, [the
Victim] testified that [Appellant] [] usually “did stuff” to her when
her mother went to work. During one incident, [] Appellant told
[the Victim] that he wanted to touch her “right there.” [The
Victim] did not know the medical term for that part of her body,
but referred to it as her “swimsuit area.” She next described an
incident where Appellant drove her to and from her friend’s
birthday party in mid-February 2017. She stated that he touched
her thigh, asked “do you love me,” and kissed her on the lips. The
next episode she described was where [A]ppellant rubbed her
“swimsuit area” while she laid on a pull-out couch in the
basement. One of the more detailed scenarios [the Victim]
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described was where she was watching television in the living
room with Appellant and her brother. Appellant sent her brother
upstairs then put his hand on [the Victim’s] head and made her
“suck his private parts.” She said that experience “felt weird.” He
then bent her over the couch and put his “private parts” in her
“butt.” []
Id. at 4. Near the end of the Victim’s direct-examination, the Commonwealth
sought to admit into evidence an entry from the Victim’s journal. N.T. Trial,
6/27/18, at 80-88. Appellant’s trial counsel objected on the grounds of
hearsay. Id. at 82. After argument, the trial judge admitted only the second
paragraph of the journal entry where the Victim wrote that she “was assauted
[sic] by somebody.” Id. at 88-89; see Commonwealth’s Exhibit 2. The trial
court determined that the statement met the recorded recollection exception
to hearsay. Id.
On June 29, 2018, Appellant was found guilty of involuntary deviate
sexual intercourse with a child, indecent assault, and endangering the welfare
of children. Trial Court Opinion, 4/5/19, at 6. On November 8, 2018,
“Appellant was sentenced to an aggregate term of 96 months to 192 months
of incarceration and was required to register as a Tier 3 SORNA4 registrant.”
Id. On November 16, 2018, Appellant filed a pro se motion for reconsideration
of sentence. Appellant’s Pro Se Motion for Reconsideration of Sentence,
11/16/18, at 1-5. On November 20, 2018, the Commonwealth filed a motion
for reconsideration and modification of sentence. Commonwealth’s Motion for
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4Sexual Offender Registration and Notification Act, 42 Pa. C.S.A. § 9799.10.
et seq.
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Reconsideration and Modification of Sentence, 11/20/18, at 1-3. The trial
court denied both motions on December 28, 2018. Trial Court’s Order,
12/28/18, at 1; Trial Court’s Order 12/28/18, at 1. This timely appeal
followed.5
Appellant raises the following issue on appeal:
I. Whether the trial court committed reversible error when it
admitted evidence of the complainant’s journal entry []
[when it] did not qualify under the recorded recollection
hearsay exception?
Appellant’s Brief at 4.
We have explained:
Our standard of review over evidentiary rulings requires us to
determine whether the trial court abused its discretion. An abuse
of discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly erroneous.
Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super. 2007) (internal
citations omitted).
Appellant alleges that the trial court erred by admitting the Victim’s
journal entry because it is “unquestionably hearsay under Rule 801(c),” and
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5 Appellant filed a notice of appeal on December 6, 2018. On December 14,
2018, the trial court filed an order directing Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). After securing an extension from the trial court, Appellant timely
complied. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 5, 2019.
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“does not meet the requirements of Rule 803.1(3).” Appellant’s Brief at 12
and 14. We agree.
Hearsay “is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Pa.R.E. 801(c). The Victim’s journal entry constitutes
hearsay. The only portion admitted into evidence explicitly stated that the
Victim “was assauted [sic] by somebody.” N.T. Trial, 6/27/18, at 88-89; see
Commonwealth’s Exhibit 2. This is exactly what the Commonwealth sought
to prove. Because the statement made in the Victim’s journal was offered for
the truth of the matter asserted, it is inadmissible as hearsay unless it falls
within an exception “provided by other rules prescribed by the Pennsylvania
Supreme Court, or by statute.” Pa.R.E. 802.
The Pennsylvania Rules of Evidence outline various exceptions to the
prohibition against hearsay. Pursuant to Rule 803.1, certain hearsay
statements are admissible if the declarant also testifies at trial. See Pa.R.E.
803.1. In this case, the trial court admitted the journal entry under the
recorded recollection exception. See Pa.R.E. 803.1(3). In order for the
content of a writing to be admissible as a recorded recollection, “the proponent
must lay a foundation to show that four requirements are met: ‘1) the witness
must have had firsthand knowledge of the event; 2) the written statement
must be an original memorandum made at or near the time of the event and
while the witness had a clear and accurate memory of it; 3) the witness must
lack a present recollection of the event; and 4) the witness must vouch for
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the accuracy of the written memorandum.’” Commonwealth v. Cooley, 398
A.2d 637, 641 (Pa. 1979), quoting McCormick, Evidence § 299 (2d Ed. 1972).
In this case, the Commonwealth failed to lay the proper foundation for
the Victim’s journal entry’s admission as a recorded recollection. During trial,
the Victim testified for the Commonwealth, during which she provided “clear
and consistent testimony.” Trial Court Opinion, 4/5/19, at 11. Indeed, the
Victim never once stated that she lacked a present recollection of the incidents
with Appellant. Cooley, 398 A.2d at 641. Furthermore, the Victim did not
testify that the journal entry accurately reflected her knowledge at the time it
was made. See Pa.R.E. 803.1(3)(c). Accordingly, the trial court erred in
admitting the journal entry under this hearsay exception.
We now consider whether the journal entry could be properly admitted
pursuant to an alternate theory. The Commonwealth invokes the
“right-for-any-reason” doctrine, and argues that the journal entry was
admissible under Pa.R.E. 613(c). Commonwealth’s Brief at 13. “According to
the ‘right-for-any-reason’ doctrine, appellate courts are not limited by the
specific grounds raised by the parties or invoked by the court under review,
but may affirm for any valid reason appearing as of record.” Commonwealth
v. Fant, 146 A.3d 1254, 1265 n.13 (Pa. 2016).
Herein, even if this Court could invoke the “right-for-any-reason”
doctrine, Rule 613(c) is inapplicable in this instance. The rule states, in
relevant part, the following:
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(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).
The Commonwealth argues that the admission of the Victim’s journal “is
consistent with [Rule 613(c)].” Commonwealth’s Brief at 13. In support of
its argument, the Commonwealth asserts that Appellant’s trial counsel
“expressly charged the [V]ictim with fabrication” on cross-examination and
also, “insinuated that the [V]ictim had been improperly induced to fabricate
her testimony by her mother.” Id. at 13-14. This, per the Commonwealth,
renders the journal entry admissible “as a prior consistent statement to
rehabilitate [the Victim’s] testimony.” Id. We disagree.
Importantly, Rule 613(c) contains two specific timing requirements.
First, Rule 613(c) permits the introduction of a prior consistent statement only
after an express or implied impeachment. Id. Thus, a prior consistent
statement is generally only admissible after cross-examination.
Commonwealth v. Cook, 952 A.2d 594, 625 (Pa. 2008). “Occasionally,
however, [when] it is clear before cross-examination that the defense will
focus on impeachment of the witness” the trial court “is afforded discretion to
admit the prior consistent statement in anticipation of impeachment.” Id.
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Second, Rule 613(c) requires the prior consistent statement predate “the
alleged motive to lie.” Commonwealth v. Bond, 190 A.3d 664 (Pa. Super.
2018); see Pa.R.E. 613(c)(1). A prior consistent statement must meet both
timing requirements to be admissible.
Here, the Commonwealth introduced the journal entry during the
Victim’s direct examination, not during re-direct examination or rebuttal. N.T.
Trial, 6/27/18, at 80-88. Therefore, the statement was introduced in
anticipation of impeachment. Notably, in defense counsel’s opening
statement, he asserted that children say “things that [are] not true,” are
“easily influenced,” and “continue with a fabricated story.” N.T. Trial, 6/27/18,
at 41-42. Accordingly, before cross-examination, it was relatively clear that
defense counsel planned to “focus on the impeachment of the witness,” and
thus, the introduction of the journal entry on direct-examination met Rule
613(3)’s first timing requirement. Cook, 952 A.2d at 625.
Nonetheless, the creation of the Victim’s journal entry did not predate
the alleged motive to lie. At trial, defense counsel argued that, from the
outset, the Victim was operating under an improper influence. Specifically,
counsel alleged that the Victim’s mother encouraged her to accuse Appellant
of the sexual misconduct.6 N.T. Trial, 6/27/19, at 124. The statement offered
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6 During cross-examination of the Victim, the following exchange occurred:
Question: All right. Now, you love your mom. Correct?
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by the Commonwealth does not precede the asserted motive to fabricate.
Therefore, Rule 613(c) cannot save the trial court’s ruling.
Even though the trial court erred in admitting the journal entry, we must
determine whether the error was harmless beyond a reasonable doubt.
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.
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Answer: Yes.
Question: And you would do anything for her, wouldn’t you?
Answer: Yes.
Question: Yes?
Answer: Um-hum.
Question: You wouldn’t lie for her, would you?
Answer: Never.
Question: Okay. Did your mom tell you to lie?
Answer: No.
Question: Did she tell you to tell this story?
Answer: No.
Question: Tell the jury, ladies and gentlemen, did this whole thing
really happen young lady?
Answer: Yes.
N.T. Trial, 6/27/19, at 124.
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Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005), quoting
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)). Furthermore:
An error will be deemed harmless where the appellate court
concludes beyond a reasonable doubt that the error could not
have contributed to the verdict. If there is a reasonable possibility
that the error may have contributed to the verdict, it is not
harmless. The burden of establishing that the error was harmless
rests upon the Commonwealth.
Id. at 528–29 (citations omitted).
The Commonwealth argues that the prejudicial effect of the admission
of the Victim’s journal was de minimis “compared to the other evidence
introduced to establish [Appellant’s] guilt.” Commonwealth’s Brief at 17.
Additionally, it contends that the Victim’s journal entry was “merely
cumulative of all other testimony provided by the [V]ictim and other
witnesses.” Id. We agree.
In this case, the trial court only permitted one sentence of the Victim’s
journal to be admitted into evidence. The sentence merely stated: “I was
assauted [sic] by somebody.” Commonwealth’s Exhibit 2. Importantly, this
was admitted after the Victim provided detailed testimony regarding the
incidents with Appellant and did not introduce additional information that the
jury had not heard previously. It does not even identify Appellant as the
individual who assaulted the Victim. Therefore, the trial court’s admission of
the journal entry constituted harmless error.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/19
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