J-S55004-17
2017 PA Super 289
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYLER PAUL SHELTON, :
:
Appellant : No. 122 MDA 2017
Appeal from the Judgment of Sentence September 15, 2016
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000856-2015
BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*
OPINION BY DUBOW, J.: FILED SEPTEMBER 07, 2017
Appellant, Tyler Paul Shelton, appeals from the Judgment of Sentence
of an aggregate term of 75 to 360 months’ incarceration imposed following
his conviction by a jury of 15 counts of Corruption of Minors. Appellant
challenges the court’s Order granting the Commonwealth’s Motion in Limine,
which permitted the Commonwealth to present to the jury portions of a
video recording of the victim’s forensic interview.1 After review, we affirm.
The Commonwealth charged Appellant with 100 counts each of Rape
of Child, Involuntary Deviate Sexual Intercourse with Child, Aggravated
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant’s victim is his daughter who was around age 12 at the time
Appellant committed the instant crimes in 2014 and 2015. In 2015, the
victim reported Appellant’s crimes to her mother, after which the victim
participated in a video-recorded forensic interview conducted by the
Children’s House Child Advocacy Center.
J-S55004-17
Indecent Assault of Child, Indecent Assault, and Corruption of Minors, 2 40
counts of Corruption of Minors,3 and 10 counts of Attempted Involuntary
Deviate Sexual Intercourse with Child.4
The trial court held a preliminary hearing on October 16, 2015. At
that hearing, the victim was unable to testify in sufficient detail to the events
giving rise to the charges. Accordingly, the court dismissed the charges
against Appellant.
The Commonwealth refiled the charges, and the court held a
preliminary hearing on November 10, 2015. At that time, the court
dismissed all of the charges save 40 counts each of Rape of Child,
Involuntary Deviate Sexual Intercourse with Child, Indecent Assault, and
Corruption of Minors.
On May 26, 2016, the Commonwealth filed a Motion in Limine in which
it requested permission to “use all prior recorded statements of the victim as
part of the testimony” pursuant to Pa.R.E. 803.1(3) (pertaining to recorded
recollections of a declarant witness), as a prior consistent statement. Mot.
in Limine, 5/26/16. The trial court did not rule on the Motion prior to trial.
____________________________________________
2
18 Pa.C.S. § 3121(c); 18 Pa.C.S. § 3123(b); 18 Pa.C.S. § 3125(b); 18
Pa.C.S. § 3126(a)(1); and 18 Pa.C.S. § 6301(a)(1)(ii), respectively.
3
18 Pa.C.S. § 6301(a)(1)(i).
4
18 Pa.C.S. 901(a).
-2-
J-S55004-17
Appellant’s one-day jury trial commenced on June 24, 2016. The
victim began testifying in the late morning. At the conclusion of the morning
session of the trial, the court heard argument on the Commonwealth’s
Motion in Limine. Following argument and a lunch recess, the
Commonwealth recalled the victim to the witness stand for additional direct
examination and cross-examination, after which the court heard additional
argument on the Commonwealth’s Motion. The Commonwealth argued that
the video recording represented a “prior recollection” that “would be more
accurate” than her current recollection, that the victim testified that she
“recalled it better then,” and that she had stated that if she did not currently
remember the answer to a question, she would respond to it by saying “no.”
N.T., 6/24/16 (PM Session), at 24. Appellant’s counsel objected to
admission of the video recording of the victim’s forensic interview, arguing
that Rule 803.1(3) did not contemplate this kind of admission, that the
contents of the recording are cumulative of the victim’s in-court testimony,
and that the victim had not testified that she lacked a present recollection of
the event, and, in fact, specifically testified to “numerous events.” Id. at
24-25. Ultimately, the court permitted the jury to see an approximately
fifteen minute portion of the video recording of the victim’s forensic
interview. Id. at 25-26.
That same day, the jury returned a verdict of guilty on 15 counts of
Corruption of Minors, and acquitted Appellant of all other charges. On
-3-
J-S55004-17
September 15, 2016, the court sentenced Appellant to the above term of
incarceration.
Appellant filed a timely Post-Sentence Motion in which he challenged,
inter alia, the Commonwealth’s use of the victim’s prior recorded statement
at trial. On December 18, 2016, the trial court denied Appellant’s Motion.
Appellant filed a timely appeal from his Judgment of Sentence on
January 16, 2017. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.5
Appellant raises one issue on appeal:
Did the trial court err in granting the Commonwealth’s Motion in
Limine wherein the court allowed the use of a forensic interview
over timely objection from the defense with regard to Pa.R.E[.]
803.1(3) as the recorded recollection of the declarant witness.
Appellant’s Brief at 7.6
In his only issue on appeal, Appellant challenges the admission of
parts of the video recording of the victim’s forensic interview. Id. at 12-13.
He argues that Pa.R.E. 803.1(3) does not contemplate the admission of
____________________________________________
5
On April 26, 2017, the trial court filed a “Statement In Lieu of Opinion[,]”
in which it indicated that it intended its March 6, 2017 Opinion addressing
the issues raised by Appellant in his Post-Sentence Motion to be its Rule
1925(a) Opinion.
6
We note with disapproval that counsel failed to provide the correct
standard of review in Appellant’s Brief and included at the end of the
argument section of the Brief errant sentences that do not pertain to the
argument presented.
-4-
J-S55004-17
recordings of this kind and that the Commonwealth failed to meet the “lack
of a present recollection prong” of Rule 803.1(3) because the victim “had
already testified[] to numerous events.” Id. at 13.
The “[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.
Super. 2015) (citation and quotation omitted). “Accordingly, a ruling
admitting evidence will not be disturbed on appeal unless that ruling reflects
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support to be clearly erroneous.” Commonwealth v. Huggins, 68
A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).
Pa.R.E. 803.1(3) permits the admission into evidence over a hearsay
objection a “[r]ecorded [r]ecollection[] of [a] [d]eclarant-[w]itness” provided
that the declarant testifies, is subject to cross-examination, and: (1) the
recording is on a matter the declarant-witness once knew about but now
cannot recall well enough to testify fully and accurately; (2) the recording
was made or adopted by the declarant-witness when the matter was fresh in
his or her memory; and (3) the declarant-witness’s testimony in the
recording accurately reflects his or her knowledge at the time when made.
The recorded recollection exception applies only when the witness lacks a
present recollection of the event. See Commonwealth v. Young, 748
A.2d 166, 177 (Pa. 1999). See also Daniel J. Anders, Ohlbaum on the
-5-
J-S55004-17
Pennsylvania Rules of Evidence § 803.1.20 et seq. (2017 ed. LexisNexis
Matthew Bender).
Appellant claims that the court should have denied the
Commonwealth’s Motion in Limine because the Commonwealth did not
satisfy the requirements of Rule 803.1(3) by demonstrating that the victim
lacked a present recollection of the events of the crimes and because the
information offered in the video recording is cumulative of the victim’s in-
court testimony. Appellant’s Brief at 12-13, 16. We disagree.
Our review of the victim’s direct and cross-examination testimony and
the transcribed portions of the forensic interview reveals that the trial court
did not abuse its discretion in admitting into evidence the video recording of
the victim’s forensic interview. The Commonwealth demonstrated that the
video recording represented the recorded recollection of the victim
concerning a matter about which the victim once knew “but now cannot
recall well enough to testify fully and accurately[.]” Pa.R.E. 803.1(3)(A)
(emphasis added). Moreover, the information provided in the video
recording was not merely cumulative of the victim’s testimony at trial.
Specifically, the victim testified that that the child advocate conducted
the forensic interview depicted in the video recording within one week of the
victim reporting the abuse to her mother. N.T., 6/24/16 (PM Session), at 3.
At trial, the victim acknowledged that her memory of events was “much
better then[.]” Id. Importantly, she informed the court that when the
Commonwealth asked her a question at trial to which she could not recall
-6-
J-S55004-17
the answer, she would say “no,” rather than admit that she did not recall.
Id. Although the victim was able to testify at trial about many details of
the abuse by her father, from our review of the transcribed portions of the
video recording we discern that the victim reported the events of abuse
more fully, with a greater level of detail, at her forensic interview. The
victim testified that there were times during her testimony when she did not
recall the answer to a question posed by the Commonwealth but instead of
admitting as such, she answered the question in the negative. Therefore,
we conclude that Appellant’s argument that the Commonwealth failed to
meet the “lack of a present recollection prong” of Rule 803.1(3) lacks merit
and that the trial court did not abuse its discretion in finding that that the
Commonwealth established the requisites for admission of the video
recording pursuant to Pa.R.E. 803.1(3).
We also conclude that the trial court did not abuse its discretion in
admitting the video recording as cumulative of the victim’s testimony. Our
review indicates that the victim’s statement in the video recording, rather
than being cumulative of her trial testimony, supplemented it by providing
additional details and elaborating on those to which she testified at trial.
Judgment of Sentence affirmed.
-7-
J-S55004-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
-8-