J -S17007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CRAIG GARDNER,
Appellant No. 3662 EDA 2015
Appeal from the Judgment of Sentence of November 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014238-2013
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 05, 2017
Appellant, Craig Gardner, appeals from the judgment of sentence
entered on November 25, 2015 in the Court of Common Pleas of Philadelphia
County. We affirm.
The trial court summarized the facts and procedural history in this
matter as follows.
On September 29, 2013, the complainant received a [telephone]
call from [Appellant] who asked to meet her at 53rd Street and
Race Street in the City and County of Philadelphia, Pennsylvania
to retrieve some of his belongings. The complainant was in a
relationship with [Appellant, which produced a child]. When the
complainant arrived, [Appellant] began to bang on her
driver -side car window. When she rolled down the window,
[Appellant] punched her on the left side of her face and pulled
her out of the car. [Appellant] dragged her into his mother's
house and continued to hit the complainant. [Appellant] then
dragged her to the back upstairs bedroom. [Appellant] pushed
the complainant down onto the sofa. [Appellant] forced the
complainant to have sexual intercourse. He penetrated her
vagina with his penis and ejaculated. After the rape[, Appellant]
J -S17007-17
asked her where her [tele]phone was and punched her in the
stomach. After the complainant put her clothes on, [Appellant]
slammed her onto the floor. [Appellant] walked the complainant
to her car where she refused to kiss [Appellant]. He then
smacked and choked her through the car window. The
complainant was eventually able to drive away. She pulled to
the side of the road and hit the On Star button in her car to
[summon] the police. Police Officer Terrell Greene arrived at the
scene and the complainant reported what happened to the
officer.
The complainant was taken to the Special Victims Unit where she
gave a statement to Detective Mark Webb and was examined by
Geneka Miles, a [s]exual [a]ssault [n]urse [e]xaminer. Ms. Miles
took a report from the complainant and performed a physical
examination. The nurse testified that there was tenderness of
the cervical spine of [complainant's] neck. Also, there was
tenderness of the labia majora and minora, and perineum.
Trial Court Opinion, 5/23/16, at 2-3 (record citations omitted).
Based on the foregoing events, the Commonwealth filed a criminal
information charging Appellant with rape and related offenses on November
20, 2013. A non -jury trial commenced on June 29, 2015. On July 8, 2015,
the trial court found Appellant guilty of rape by forcible compulsion, sexual
assault, indecent assault, simple assault, recklessly endangering another
person (REAP), and false imprisonment.' Prior to sentencing, Appellant
moved for extraordinary relief, which the court denied on November 25,
2015. That same day, the court ordered Appellant to serve ten to 20 years'
imprisonment for rape and merged convictions for sexual assault, indecent
' 18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3126(a)(1), 2701(a)(1), 2705, and
2903(a).
-2
J -S17007-17
assault, and REAP for sentencing purposes. No further penalty was imposed
for false imprisonment and simple assault.
Appellant filed a timely notice of appeal on November 30, 2015.
Pursuant to Pa.R.A.P. 1925(b), the court, on December 2, 2015, directed
Appellant to file a concise statement of errors complained of on appeal
within 21 days. Appellant filed a timely, original concise statement on
December 23, 2015. Additionally, Appellant filed a supplemental concise
statement on May 25, 2016, which the trial court accepted as timely filed
nunc pro tunc. Although the court issued its opinion on May 23, 2016, two
days before Appellant filed his supplemental concise statement, the court's
opinion addressed the claims raised by Appellant in his supplemental
submission.
Appellant raises the following issue for our consideration in this
appeal:
[Whether] the trial court err[ed] when it permitted the
Commonwealth to introduce the complainant's out-of -court
hearsay statements as prior consistent statements [since] the[]
statements served only to bolster the Commonwealth's version
of events and should not have been admitted under
Pennsylvania Rule of Evidence 613[?]
Appellant's Brief at 3.
Appellant argues on appeal that the court, at various stages of trial,
erroneously admitted prior consistent statements made by the complainant.
According to Appellant, the trial court improperly allowed the Commonwealth
-3
J -S17007-17
to bolster its case through substantive use of corroborating, prior consistent
statements in violation of our evidentiary rules. We disagree.
"The admission of evidence is committed to the sound discretion of the
trial court and an appellate court may reverse only upon a showing that the
trial court clearly abused its discretion." Commonwealth v. McFadden,
2017 WL 605067, *8 (Pa. Super. 2017). This standard of review is a narrow
one. Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013)
(citation omitted). Our case law holds that "[a]n abuse of discretion is not
merely an error of judgment, but is rather the overriding or misapplication of
the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill -will or partiality, as shown by the evidence of
record." Id.
At this non -jury trial for rape and related offenses, the Commonwealth
called as its first witness the sexual assault nurse who examined the
complainant shortly after the attack. During direct examination, the court
allowed the Commonwealth to introduce the statement in which the
complainant described the attack to the nurse examiner. The prosecutor
explained that the statements were offered as prior consistent statements in
anticipation of efforts to impeach the credibility of the complainant. N.T.,
6/29/15, at 12. Defense counsel objected, asserting that the introduction of
the statements was premature since she had not yet attacked the
complainant's credibility. Id. at 13. Appellant asserts that the trial court
-4
J -S17007-17
erred in overruling this objection since the Commonwealth introduced the
prior consistent statement through the nurse examiner when no effort had
been made to impeach the complainant's credibility.
Hearsay, defined as a declarant's out -of -court statement or assertion
offered into evidence to prove the truth of the matter asserted, is generally
inadmissible unless an exception applies. See Pa.R.E. 801(a) -(c) and 802.
Prior consistent statements admitted as corroborating evidence pursuant to
Rule 613(c)2 are, however, a different matter. Rule 613(c) governs
rehabilitation of a testifying witness. Statements introduced under that
provision are offered simply to show that the witness's testimony is
consistent; they are not offered to prove the truth of the matter asserted.
Commonwealth v. Curely, 910 A.2d 692, 699 (Pa. Super. 2006). Hence,
2
In relevant part, Pa.R.E. 613(c) provides as follows:
(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' denial or explanation.
Pa.R.E. 613(c).
-5
J -S17007-17
strictly speaking, statements admitted under Rule 613(c) do not fall within
the definition of hearsay. Id.
Because prior consistent statements are admissible only to rehabilitate
a witness, evidence of such statements is not ordinarily introduced until after
the witness's testimony has been attacked on cross-examination.
Commonwealth v. Cook, 952 A.2d 594, 625 (Pa. 2008). Nevertheless,
where it is clear before cross-examination that the defense will focus on
impeachment of the witness, a trial court enjoys the discretion to admit prior
consistent statements in anticipation of impeachment. Id.; see also
Commonwealth v. Wilson, 861 A.2d 919, 930 (Pa. 2004).
After careful review of the record, we are persuaded that the trial court
did not abuse its discretion in allowing the Commonwealth to introduce the
complainant's out -of -court statement to the nurse examiner before the
defense attacked her credibility on cross-examination. As of the time of
trial, there was every reason to believe that defense counsel would challenge
the complainant's credibility as to the nature of the attack and the extent to
which Appellant employed force in the perpetration of the assault. At the
preliminary hearing,3 the complainant's testimony on direct examination,
consistent with our factual recitation above, described a non-consensual
3 Since this was a non -jury trial, neither side gave opening statements. In
the absence of such a description of what Appellant's defense would entail,
we refer to the preliminary hearing to determine whether it was likely that
the defense strategy involved attacking the credibility of the complainant.
-6
J -S17007-17
sexual encounter that occurred after a violent confrontation with Appellant.
Thereafter, defense counsel cross-examined the complainant in an apparent
effort to demonstrate that the sexual episode at issue was consensual and to
challenge the extent to which Appellant employed force during the course of
the attack. See N.T., 9/14/13, at 21-31. Under these circumstances, the
trial court did not abuse its discretion in allowing the Commonwealth to use
the complainant's prior consistent statement to the nurse examiner as
rehabilitation in anticipation of impeachment on cross-examination.4
4 Although we affirm the trial court's ruling, we acknowledge a potential
infirmity in our decision. Our case law is clear that a court has the discretion
to admit, before cross examination, prior consistent statements as
rehabilitation in anticipation of an attack on a witness's credibility. See
Cook, 952 A.2d at 625. The admission of such rehabilitative evidence
usually occurs during the course of direct examination of the witness whose
testimony will be subjected to attack. What is unclear, however, is whether
the court's discretion allows it to permit the use of prior consistent
statements for anticipatory rehabilitative purposes with witnesses such as
the nurse examiner who appear before the witness whose credibility is
expected to be attacked. Neither party cited case law that discusses this
concern and our own efforts have not uncovered relevant analysis.
Nevertheless, even if the court's authority did not extend to the precise
circumstances before us, we would not be inclined to grant relief. First,
Appellant did not object on this basis at trial. There, defense counsel argued
only that that the complainant's prior consistent statement was not
admissible since counsel had not yet "attacked the credibility of the
complainant." N.T., 6/29/15, at 13. "Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal." Pa.R.A.P.
302(a). Similarly, Appellant's brief stresses only the fact that counsel had
not yet impeached the complainant; there is only passing reference to the
introduction of the challenged statement through the nurse examiner. See
Appellant's Brief at 14-15. Although Appellant notes that the
Commonwealth introduced the prior inconsistent statement through the
(Footnote Continued Next Page)
-7
J -S17007-17
We need not consider Appellant's remaining contention that the trial
court erred in allowing the Commonwealth to introduce the complainant's
statements to the police through Officer Greene as either prior inconsistent
statements, excited utterances, or prompt complaints. "This Court may
affirm a decision of the trial court if there is any basis on the record to
support the trial court's actions, even if we rely on a different basis."
Commonwealth v. Allshouse, 985 A.2d 847 (Pa. 2009). An error in the
admission of evidence is subject to reversal only if it contributed to the
verdict. See McFadden, 2017 WL 605067, *8. For the reasons that follow,
we conclude that the complainant's testimony, when confronted with her
multiple prior inconsistent statements, constituted such compelling,
substantive evidence of Appellant's guilt that any alleged errors in the
admission of out -of -court statements through Officer Greene could not have
contributed to the guilty verdicts rendered in this case.
(Footnote Continued)
nurse examiner before the complainant ever testified, the brief does not
explain whether or how this procedure conflicts with a proper construction of
Rule 613(c). Hence, the issue is waived as undeveloped. See Pa.R.A.P.
2101 and 2119(a). Lastly, as we shall explain above, the compelling nature
of the complainant's testimony, when confronted with her multiple prior
inconsistent statements in police reports, prison telephone calls with
Appellant, and her preliminary hearing testimony, make clear that any
potential error in the introduction of the complainant's prior consistent
statement through the nurse examiner did not contribute to the guilty
verdicts in this case. See McFadden, 2017 WL 605067, *8 (trial court will
be reversed only if an error in the admission of evidence contributed to the
verdict).
-8
J -S17007-17
Pennsylvania Rule of Evidence 803.1 provides that prior inconsistent
statements are not excluded by the rule against hearsay, and constitute
substantive evidence, if the declarant testifies and is subject to
cross-examination about the prior statement and the statement was given
under oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition or is a writing signed and adopted by the
declarant. See Pa.R.E. 803.1.5 As an exception to the hearsay rule where
the declarant testifies at trial, Pa.R.E. 803.1 is consistent with prior
Pennsylvania case law, including Commonwealth v. Lively, 610 A.2d 7
(Pa. 1992), where our Supreme Court held that prior inconsistent
statements made by Commonwealth witnesses at a preliminary hearing, and
in a signed writing given to police, were admissible as substantive evidence.
Almost immediately after taking the witness stand, the complainant
advised that she did not want to testify against Appellant and that she only
appeared in court to avoid enforcement of a bench warrant and to speak
one-on-one with the judge. The complainant explained that she forgave
Appellant, that she thought he was a "good person," that she wanted to drop
the charges, and that she wanted Appellant to return to her and the child
they shared together. Instead of a rape, the complainant described the
incident as a "domestic altercation" and said she summoned the police
5 Effective April 1, 2017, our Supreme Court amended Rule 803.1, but the
changes have no impact upon this case.
-9
J -S17007-17
because Appellant became too aggressive. However, after the
Commonwealth confronted the complainant with her prior inconsistent
statement to investigators, telephone conversations she had with Appellant
from prison, and with her prior testimony at Appellant's preliminary hearing,
the complainant admitted that she was "not denying that this happened" but
that she believed Appellant only needed counseling. N.T. 6/29/15, at 62.
Based on the substantive evidence set forth in the complainant's prior
inconsistent statements, which she did not deny, we conclude there was a
sufficient basis to support the verdicts entered in this case, despite the
complainant's change of heart toward Appellant. Because the complainant's
prior inconsistent statements constitute compelling, substantive evidence of
Appellant's guilt, any alleged errors in the admission of evidence in this case
did not contribute to Appellant's adverse verdicts.
Judgement of sentence affirmed.
Judgment Entered.
Jo'seph D. Seletyn, Es .
Prothonotary
Date: 5/5/2017
- 10 -