J-S40035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EYADE KOMADEGA KOUBIDINA
Appellant No. 2273 MDA 2013
Appeal from the Judgment of Sentence July 15, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006183-2011
BEFORE: BENDER, P.J.E., BOWES, J. and PANELLA, J.
MEMORANDUM BY PANELLA, J.: FILED AUGUST 28, 2014
Appellant, Eyade Komadega Koubidina, appeals from the judgment of
sentence entered on July 15, 2013, in the Court of Common Pleas of York
County. After careful review, we affirm.
On July 10, 2011, at approximately 5:00 PM, the victim, eleven-year-
See N.T., Trial, 4/1/13, at
131-
answered. See id
permitted A.D. to wait for her friends in the living room. Id. A.D. occupied
the time by playing a video game while Koubidina was on the computer. See
id
ups Id., at 133-134.
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Id., at 135. A.D. recalled that she was wearing a strapless dress that
Id. A.D. laid back on the bed and Koubidina was
Id., at 136. A.D. testified that Koubidina pulled her
Id. According to
Id., at 137. A.D. stated
Id
Id
Id.
Id., at 139.
About an hour later, while walking to the grocery store with her
seventeen-year-old cousin, Jeremy McDonald and her younger brother, A.D.
See id., at 139-
mother. See id
Id., at
185. Koubidina denied any wrongdoing. See id
Id., at 186. In
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the emergency department at the hospital, Natalie Billings, the Sexual
Assault Forensic Examiner (SAFE) nurse practitioner examined A.D. See id.,
swab for DNA. See id., at 198-200. Officer Mike Mendez of the West York
Police Department was dispatched to York Hospital for a report of a sexual
assault victim. See id., at 215. Officer Mendez spoke with the SAFE nurse
and sent the rape kit to the Pennsylvania State Police Crime Lab for analysis.
See id dvocacy Center.
See id
Id., at
234- -
sample from [Koubidina] Id., at 236.
Koubidina was subsequently charged with one count of aggravated
indecent assault, involuntary deviate sexual intercourse (IDSI), indecent
assault, corruption of minors and unlawful contact with minor (sexual
offenses). Following a jury trial on April 1, 2013, Koubidina was found guilty
on all counts. Thereafter, on July 15, 2013, the trial court sentenced
Koubidina to the mandatory sentence of 10-
IDSI. Counts 1 and 3 merged with the IDSI for sentencing purposes.
probation on Count 4, corruption of minors. Post-sentence motions were
filed and subsequently denied. This timely appeal followed.
On appeal, Koubidina raises the following issue for our review:
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1. Whether the trial court abused its discretion in permitting
testimony of prior consistent statements by the victim for
purposes of rehabilitation pursuant to Pa.R.E. 613 when such
statements were not used to rebut a claim of recent
fabric
contradictory trial testimony?
-settled that
[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only where the court clearly abused
that discretion. Proper judicial discretion conforms to the law and
is based on facts and circumstances before the court. An abuse
of discretion is not a mere error of judgment but, rather,
involves partiality, prejudice, bias, ill-will, or manifest
unreasonableness.
Commonwealth v. Hardy, 918 A.2d 766, 776 (Pa. Super. 2007) (citations
omitted).
In pertinent part, Pa.R.E. 613 provides:
(c) Witness's Prior Consistent Statement to Rehabilitate.
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
Pa.R.E. 613(c)(1)-(2).
received for rehabilitation
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Pa.R.E. 613, Comment
specifically provides in subsection (c)(1) that the consistent statement must
have been made before Id. (emphasis supplied).
Because [prior consistent] statements are hearsay, their use as
testimony is severely limited; and such statements are
testimony is recently fabricated or a result of corrupt motives.
Furthermore, evidence of such statements is admissible only in
rebuttal and then only for the purpose of showing that that
which the witness now testifies to has not been recently
fabricated. As a further restriction upon admissibility the
statement must have been made at a time before its ultimate
effect on the question trying could have been foreseen. In more
recent times this court has interpreted this caveat to mean
before any corrupt motive has arisen.
If one testifies that they did a certain thing at a given time, they
may be challenged that they said something different before.
Such is impeachment by prior contradictory statement.
Ordinarily, that one has always said the same thing is subsumed
in their testimony and need not be buttressed by evidence of
prior consistency, unless that consistency, by allegation of recent
fabrication is challenged. When challenged, evidence of prior and
continued consistency may be offered. Evidence of prior
consistency, absent such challenge is not required and is
essentially cumulative and repetitious. To regularly allow
testimony of prior consistency may easily become a device to
merely augment the credibility of witnesses by others.
Commonwealth v. Hutchinson, 556 A.2d 370, 372 (Pa. 1980) (citations
and internal quotation marks omitted).
At the time of trial, at the conclusion of Commonwealth witness
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under Pa.R.E. 613 on the record. The following exchange took place at
sidebar:
ATTORNEY KOPE: I was just going to ask to approach. I am just
going to lodge an objection under Rule 613 of the Rules of
Evidence that is for prior consistent statements. I think this is
just getting to the point it is just bolstering.
THE COURT: If that is what the evidence is going to be, this is
the first evidence that would be - - well, this would be the
second evidence of it.
ATTORNEY KOPE: Okay. And then the other.
THE COURT: So why is it objectionable?
ATTORNEY KOPE: Under Rule 613 you are usually not allowed to
bring a prior
THE COURT: One moment. Okay, what is the problem?
unless, of course, we are charging her with fabrication?
THE COURT: That is
defense of fabrication.
ATTORNEY KOPE: We are conceding that.
THE COURT: What are you conceding? You have not conceding
[sic] anything.
ATTORNEY KOPE: We are attacking her fabrication.
THE COURT: You are claiming that she fabricated this story?
ATTORNEY KOPE: Yes.
THE COURT: So I would think that a prior consistent statement
corroborating her story would be particularly important and
relevant.
ATTORNEY KOPE: We agree it is just the number of them to a
point we think it becomes bolstering after putting on some.
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THE COURT: Do you have theory for opposition that more than
one corroboration of a prior
ATTORNEY KOPE: I have no legal authority.
THE COURT: Okay. Overruled.
N.T., Jury Trial, 4/1/13, at 180-181.
While Koubidina raised an objection under Pa.R.E. 613, Rule 613 is
inapplicable here. As noted, Rule 613 is used for rehabilitation purposes
only, not as substantive evidence. It is evident from the notes of testimony
that the Commonwealth was not seeking
prior consistent statements to rebut an express or implied charge of
fabrication in an effort to rehabilitate the credibility of A.D. after
impeachment.
Rather, it appears as if Koubidina is actually challenging the
presentation of cumulative evidence by the Commonwealth regarding
statements made by A.D. to her cousin, Jeremy McDonald and her mother,
Tammy Dunn. From the sidebar conference, it is clear that Koubidina is
seeking to preclude the Commonwealth witness testimony, which he claims
See id., at 181. This is plainly
not a Rule 613 issue, but an evidentiary challenge pursuant to Rule 403.1
____________________________________________
1
Rule 403. Excluding Relevant Evidence for Prejudice,
Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
(Footnote Continued Next Page)
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Koubinda, however, never objected on this basis. As our Supreme Court
explained in Commonwealth v. Baumhammers, 960 A.2d 59 (Pa. 2008):
[I]t is axiomatic that issues are preserved when objections are
made timely to the error or offense. See Commonwealth v.
May
contemporaneous objectio
waived); and Commonwealth v. Bruce, 916 A.2d 657, 671
(Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007)
Id., at 73. There is nothing in the record to indicate Koubidina asserted an
allegation of error under Pa.R.E. 403. As such, we are constrained to find
any issue related to the presentation of cumulative evidence waived.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
_______________________
(Footnote Continued)
delay, wasting time, or needlessly presenting cumulative
evidence.
Pa.R.E. 403.
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Com. v. Koubidina, E.
Combined Opinion