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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COURTLAND MITCHELL :
:
Appellant : No. 1205 WDA 2017
Appeal from the Judgment of Sentence June 22, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007794-2016
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 27, 2019
Courtland Mitchell appeals from the judgment of sentence of six to
twelve months of incarceration followed by five years of probation after a jury
convicted him of unlawful conduct with a minor, endangering the welfare of
children, and corruption of minors. Specifically, Appellant challenges
evidentiary rulings of the trial court that allowed admission as substantive
evidence out-of-court statements made by S.W., the minor victim. As we
conclude the testimony was improperly admitted, we vacate Appellant’s
judgment of sentence and remand for a new trial.
The trial court offered the following summary of the evidence offered at
Appellant’s trial.
S.W., the nine year old victim, testified fully regarding numerous
aspects of her daily life. However, when the Commonwealth
asked her specifics regarding Appellant, her step-grandfather,
S.W.’s demeanor would change and she would become
nonresponsive. Th[e trial c]ourt observed that the witness
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appeared to be “frozen” on the witness stand, looking downward
and failing to answer those questions asked. The most explicit
S.W. was in her testimony was when she stated that she told her
mother that “he like did bad things to like me and my body.”
After her testimony, the Commonwealth moved to admit
S.W.’s testimony from the preliminary hearing as a prior
inconsistent statement. After brief argument by opposing
counsel, th[e trial c]ourt granted the motion and admitted her
prior testimony from the preliminary hearing as both an
inconsistent and a consistent statement under Commonwealth
v. Brady[, 507 A.2d 66 (Pa. 1986),] and Commonwealth v.
Hunzer[, 868 A.2d 498 (Pa.Super. 2005)]. The preliminary
hearing transcript was read into the record.
....
Dr. Jennifer Wolford from the Children’s Hospital of
Pittsburgh Child Advocacy Center testified that she conducted a
physical exam on S.W. Despite a small amount of hymenal tissue
irritation, Dr. Wolford testified that the exam was “entirely
normal.” She stated that the lack of physical evidence does not
rule out that a child has been abused.
Jamie Mesar, also from the Children’s Hospital of Pittsburgh
Child Advocacy Center[,] testified that she conducted a forensic
interview of S.W. on March 23, 2016. Mesar testified that the
interview had been recorded. Over the objection of counsel for
Appellant, the forensic interview video was played in open court
for the jury.
....
S.W.’s mother, testified that she became aware of some
inappropriate kissing between her mother-in-law (Appellant’s
wife) and some of the grandsons. She asked her sons, S.W.’s
brothers, if their grandmother kissed them on the lips. One child
denied [it] and another said it happened “all the time.” [S.W.’s
mother] testified that after she asked the boys, S.W. came down
the stairs and [she] decided to ask S.W. about her grandmother.
[S.W.’s mother] then asked S.W. if her grandmother ever did
anything that made her feel uncomfortable. S.W. said that her
grandmother once rubbed Vaseline on her and that made her feel
uncomfortable. [S,W.’s mother] then asked if Pop-Pop (Appellant)
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had ever done anything that made her feel uncomfortable. S.W.
paused, started breathing heavily, and then responded with a few
“um”s before saying no. [S.W.’s mother] said that S.W. got off
her lap and pulled her off of the couch and led her upstairs, away
from her brothers, and into [her] bedroom. Once upstairs, [she]
asked S.W. again if “Pop-Pop” ever did anything that made her
feel uncomfortable. S.W. told her mother that Appellant kisses
her and “stick[s] his tongue in my mouth” and that it happens “a
lot.”
Detective Robert Synowiec testified that he interviewed
Appellant on April 6, 2016. Appellant denied the allegations and
denied that he was ever alone with S.W.
....
Clarnece Mitchell, Appellant’s wife of 35 years, testified that
she had never been accused of inappropriately kissing her
grandchildren. She testified that in February of 2016, prior to any
allegations of Appellant’s sexual misconduct with his
granddaughter, she and Appellant met with S.W.’s parents at a
local restaurant to resolve some differences. The family caused a
scene to the extent that she thought the police would be called.
She testified that she never observed anything in S.W.’s
demeanor or interaction with Appellant that gave her pause or
concern.
....
Appellant testified in his own defense, saying that he has
never been accused of a crime before and that he was a father
figure to his wife’s children. He spoke at length regarding the
family dynamics, specifically the tension which arose when certain
family members failed to call and check on him when his wife was
away. Appellant also discussed the failed attempt to work through
the family’s issues at the restaurant. He denied sexually touching
S.W. or putting his tongue in her ear. He admitted that he played
“dollies” with S.W. and pretended to go on dates with her,
pretended to go to the movies, swimming, and specifically
pretended to be her boyfriend. He denied asking S.W. if she
kissed on the first date.
Trial Court Opinion, 12/14/17, at 3-6 (citations omitted).
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Upon this evidence, a jury convicted Appellant of unlawful conduct with
a minor, endangering the welfare of children, and corruption of minors, and
acquitted him of involuntary deviate sexual intercourse with a child and
indecent assault of a person less than thirteen years of age. Appellant was
sentenced as indicated above on June 22, 2017. The trial court denied
Appellant’s timely-filed post-sentence motion, and Appellant filed a timely
notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P.
1925.1
Appellant presents the following question for our review: “Did the trial
court err when it permitted the Commonwealth to introduce, at Appellant’s
jury trial, three pretrial statements made by [S.W.] in this case—specifically,
[her] preliminary hearing testimony, her statements during a videotaped
forensic interview, and a statement made by her to her mother?” Appellant’s
brief at 3.
We consider Appellant’s issue mindful of the our standard of review:
The admissibility of evidence is a matter addressed solely to the
discretion of the trial court, and may be reversed only upon a
showing that the court abused its discretion. For there to be abuse
of discretion, the sentencing court must have ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
____________________________________________
1 This Court granted a motion to reinstate the appeal after Appellant’s brief
was filed late despite the grant of three extensions. Disposition of the appeal
was further delayed by the absence of the preliminary hearing transcript in
the certified record; the transcript was supplemented per this Court’s order
on December 14, 2018.
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Commonwealth v. Johnson, 179 A.3d 1105, 1119-20 (Pa.Super. 2018)
(internal citations and quotation marks omitted).
As Appellant’s issues relate to the trial court’s admission of out-of-court
statements as both inconsistent and consistent with the testimony that S.W.
gave at Appellant’s trial, we begin with a thorough examination of that
testimony. S.W. discussed Appellant’s conduct as follows, in relevant part.
Q. Was there ever a time that you were around [Appellant] and
he touched you in a way you did not like?
A. Yes.
Q. Do you remember any of that ever happening at your
house?
A. Uh-huh.
Q. Is that a yes?
A. Yes.
Q. Did anything like that ever happen in your living room?
A. Yeah.
Q. Do you remember one of the times that it happened?
A. Yes.
Q. Can you tell us about that?
A. I sat down. We were watching the movie Frozen, and then
I don’t really remember like everything that happened, but
all I remember is that he told me to sit on his lap and then
I don’t remember what happened next.
Q. Did you sit on his lap?
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A. Uh-huh.
....
Q. Were you facing him or facing away from him?
A. Away.
Q. Did he say anything when you sat on his lap?
A. I don’t know.
Q. Is there anything else about that you can remember?
A. I remember what I was wearing.
Q. What were you wearing?
A. I was wearing a blue sweat suit with a wolf on it like on the
shirt, and that’s what I was wearing.
Q. During that time when you were just sitting on his lap, did
anything else happen?
A. I don’t remember.
Q. So you said there was a time that he touched you in a way
you didn’t like?
A. Uh-huh.
Q. When was one of those times?
A. In my brother[’s] room.
....
Q. So this time that something happened in your brother’s
room, what happened?
A. We were playing a game, but I don’t remember what game.
Q. You and who were playing a game?
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A. Me and [Appellant].
Q When you were playing a game, was it a video game or
another kind of game?
A. It happened so long ago. I kind of don’t remember.
Q. Do you remember anything about it?
A. Huh-uh.
Q. Do you remember any occasion where he touched you in a
way you didn’t like?
A. I don’t really know.
Q. Is it hard to talk about stuff like this?
A. Yes.
Q. What is hard about it?
A. Just like talking about it.
Q. So we’re in a room with a lot of people. Do you know any
of these people?
A. No.
Q So have you ever talked about stuff like this with this many
people before?
A. Huh-uh.
Q. Have you ever talked about stuff like this with other people
in your family?
A. Uh-huh.
....
Q. Do you remember a time where your mom was talking to
your brothers about your Grandmommy?
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A. Uh-huh.
....
Q. Were you involved in that conversation?
....
A. I was upstairs playing with my toys.
....
Q. Did you . . . ever talk to your mom about anything like that?
A. Well, then I came downstairs and my mom wasn’t going to
ask me, because I think she thought I was too young, but
then I just came downstairs and my mom thought it was
just like the right time.
So she asked me about it and then I started feeling nervous
because I don’t know what [Appellant] would do to me, but
then I started thinking of the good things that like my
parents will protect me and -- yeah.
Q. So you were feeling nervous about talking to your mom.
What were you feeling nervous about?
A. Because I don’t know what they were going to do to me
because I didn’t know that it was not my fault.
Q. When you say “it was not your fault,” what are we talking
about?
A. That like what he did.
Q. Who is “he”?
A. [Appellant].
Q. Did he do something to another person?
A. Uh-huh.
Q. Who was that?
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A. Me.
Q. Do you remember one of those things that he did?
A. Like do you mean at a place or something?
Q. You said that you were nervous about telling your mom
about the things he did to you. We just want to know one
of those things.
You can start where ever you want. Whatever you
remember, and if nothing happened at all, you can tell us
that to.
A. Okay.
Q. Do you want to start with what you told your mom?
A. Yes.
Q. What did you tell her?
A. I told her like everything, because I was thinking about the
things that would happen, because if I -- if I told my mom
a lie, then it will just feel like that I am turning into a bad
person.
So I told her the truth, and so my hands were shaking,
because I didn’t know what would happen because nobody
can tell the future. So I was just shaking and like wondering
what would be happening. So I told her and --
Q. [S.W.], what did you tell her?
A. That -- I told her that [Appellant] -- well, like --
Q. Did you tell her about [Appellant] ever touching you?
A. Uh-huh, but I told her that like a couple of days after.
Q. What part of his body touched you?
A. Just his hands.
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Q. Did his lips ever touch you?
A. Uh-huh.
Q. Is that a yes or no?
A. Yes.
Q. What part of your body did his lips touch?
A. Like my arms, and I think like that.
Q. Did he ever touch any parts of your face with his lips?
A. Uh-huh.
Q. What part of your face did his lips touch?
A. Like my cheeks.
Q. Did he ever kiss you on the lips?
A. Uh-huh.
Q. Did he kiss you on the lips the same way that your parents
kiss you on the lips?
A. No.
Q. What was different about the way he kissed you?
A. It was like longer.
Q. Was his mouth opened or closed when he kissed you longer?
A. Closed.
Q. Did he ever touch any other parts of your body with his lips?
A. Huh-uh.
Q. Whenever he kissed you on the lips longer, was it in front of
other people?
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A. Huh-uh.
....
Q. So did you ever talk to your mom about anything
[Appellant] did that made you feel uncomfortable?
A. Uh-huh.
Q. Can you tell us about one of these?
A. I told her like everything that happened, and -- yeah. So
that’s what I did.
Q. So I want to know when you say “I told her everything that
happened,” can you tell me everything that happened and
tell these people?
A. Well, I told them when I was like eight, because the -- well,
I told her when I was eight. So whenever I told her, I told
her that he like did bad things to like me and my body.
After I told my mom, she was like sad and disappointed, but
I don’t know if she was disappointed that I didn’t tell her
earlier, but she said it’s not my fault, because I was being
- - it starts with an O, I think. I don’t really remember the
word. I know what the word means and it means to do what
an adult says, but I just forget the word.
Q. That’s all right. Now, you said he did things to your body
that were bad. That’s what I want to hear about. Can you
tell me about one of those times so I understand what
happened?
A. Well, if he would like touch me in a certain way, and so after
I told my mom, we started going to these different places.
I went to like a different place and I forget what it’s called,
but I talked to a lady. Her name was Jamie.
She was very, very nice, and I think I saw the Detective
there. I think I did and somebody else, but she was very
nice to me. So we were just talking about what happened
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and then I started going to these different places. Like I
started going here, but I was kind of sad.
Q. What did you feel sad about?
A. And disappointed because I didn’t see Jamie, because she
was like kind of the first friend that I talked to her about
this. That was just first knowing.
Q. You told her about [Appellant] touching you in a certain
way?
A. Uh-huh.
Q. What part of his body did he touch you with in that certain
way?
A. My face, my legs, and my arms. And that’s all I remember.
Q. When he touched you, did he touch you over your clothes?
Under your clothes? Something else?
A. It happened so long ago. I don’t really remember.
N.T. Trial, 3/1-7/17, at 49-53, 66-70, 74-76 (objections omitted).
During a recess called before Appellant was given the opportunity to
cross-examine S.W., the Commonwealth moved to admit S.W.’s testimony at
Appellant’s preliminary hearing as prior inconsistent statements, contending
that Appellant had “a fair and full opportunity to cross examine the witness”
at the preliminary hearing. Id. at 76. Appellant objected on the grounds that
the Commonwealth was either seeking to impeach its own witness or offer the
prior testimony as substantive evidence. Id. at 77. Appellant also contended
that the prior testimony was not admissible as a prior consistent statement,
as Appellant had not impeached S.W.’s credibility through cross-examination
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by implying that the testimony was fabricated. Id. Further, Appellant argued
that he did not have a full and fair opportunity to cross-examine S.W. at the
preliminary hearing. Id. at 81.
The trial court concluded that S.W.’s trial testimony was both consistent
and inconsistent with her preliminary hearing testimony, “because while she
states that she doesn’t recall when directly asked about many things, then in
other light, she does state about telling her mom about the bad things he did
to her.” Id. at 80. The court decided to allow the testimony to be read,
explaining: “This is a situation where I believe the interest of justice would be
served by the [j]ury hearing the full information possible.” Id. The trial court
advised Appellant that if he did not wish to cross-examine S.W. before the
testimony was read to the jury, he or the Commonwealth could recall her to
the stand afterwards. Id. at 83. The Commonwealth represented that it
would recall S.W. and offer her for cross. Id.
The trial court then advised the jury that a certified legal intern from the
District Attorney’s office was going to play the role of S.W. “at an earlier
proceeding that was under oath and subject to cross examination and is being
admitted for your consideration for the substantive truth of what was testified
to at that time.” Id. at 86.
S.W.’s preliminary hearing testimony was that Appellant touched her in
a way that made her uncomfortable. N.T. Preliminary Hearing, 7/1/16, at 13-
14. Specifically, S.W. indicated that, on the occasion that she sat on
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Appellant’s lap while watching Frozen, Appellant licked her ear and touched
her backside under her clothes. Id. at 16-17. S.W. also stated that Appellant
on more than one occasion put his tongue in her mouth when he kissed her.
Id. at 19. She said that when Appellant kissed her, he would use his hands
to touch her under her clothes on her vagina and her backside. Id. at 47-48.
S.W. also recounted a time when Appellant used his mouth to touch her on
her front side, under her clothes, on the part of the body used to pee. Id. at
20-21. Although Appellant cross-examined S.W. at the preliminary hearing,
he was prohibited from questioning her credibility or motivations to fabricate
the allegations, as the judge agreed with the Commonwealth’s contention that
“credibility is not at issue at a preliminary hearing.” Id. at 27.
After the preliminary hearing testimony was read to the jury, a lunch
recess was taken. S.W. was not recalled to the stand afterwards. N.T. Trial,
3/1-7/17, at 88. However, Appellant did not object to the Commonwealth’s
failure to recall her or request that he be given the opportunity to cross-
examine her about the preliminary hearing testimony.
Following the testimony of a medical expert, the Commonwealth next
called Jamie Mesar, who conducted the forensic interview of S.W. on March
23, 2016. The Commonwealth, through Ms. Mesar, offered as an exhibit a
video recording of the interview. Id. at 110. Appellant objected on the same
grounds raised to the preliminary hearing testimony. Id. at 107. The trial
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court admitted the evidence over Appellant’s objection, and the video was
played to the jury. Id. at 110-11.
In the interview, S.W. indicated that Appellant did a “bad thing” to her.
Forensic Interview, 3/23/16, at 8:32:45.2 She stated that he kissed her, and
when asked where he kissed her, S.W. pointed to her mouth, her cheek, and
the right side of her chest. Id. at 8:33:10. She acknowledged telling her
mother that Appellant “hurt” her, again designating the location of the hurt as
her mouth, cheek, and chest, as well as “both privates.” Id. at 8:37:05-
8:37:30. S.W. detailed Appellant’s putting his tongue in her mouth, on her
chest, on the outside of her buttocks, and both in and outside of her vagina.
Id. at 8:44:34-8:48:00. S.W. indicated that the abuse occurred in both
Appellant’s house and her own, in various rooms, began when she was in
kindergarten, and ended when she was aged seven or eight. Id. at 8:48:50-
8:52:10.
Appellant cross-examined Ms. Mesar following the jury’s viewing of the
interview. N.T. Trial, 3/1-7/17, at 111-18, 120-122. S.W. was not recalled
as a witness to allow Appellant to question her about the statements she made
to Ms. Mesar. Nor did Appellant object to his inability to conduct cross-
examination of S.W. following the playing of the forensic interview to the jury.
____________________________________________
2 A DVD recording of the interview is included in the certified record, but not
a transcript of its contents. Our citations to the video point to the approximate
time of the statements represented based upon the recording’s time-stamp.
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The Commonwealth’s next witness was S.W.’s mother. She described
the day when she had questioned S.W.’s brothers about inappropriate kissing
that led to S.W. revealing her allegations of Appellant’s abuse for the first
time. Id. at 124-28. Before S.W.’s mother began recounting S.W.’s
statements, Appellant objected to such evidence as hearsay. Id. at 128. The
Commonwealth again invoked the justification of prior inconsistent
statements, and the trial court again overruled Appellant’s objection. Id. at
129. S.W.’s mother testified that S.W. had told her that Appellant stuck his
tongue in S.W.’s mouth when they kissed, and that it happened “a lot.” Id.
at 130. The witness also indicated that S.W. described an incident in which
Appellant reached under a blanket in which S.W. had wrapped herself to touch
her thighs while he put his tongue in her mouth. Id. at 130.
Having examined the three groups of out-of-court statements Appellant
challenges in this appeal, we begin our review of the applicable law. The
general rule is that hearsay, an out-of-court statement offered for the truth of
the matter asserted, is not admissible. Pa.R.E. 802. As shown above, the
out-of-court statements contained in the preliminary hearing testimony, the
forensic interview, and the testimony of S.W.’s mother were admitted as
substantive evidence for their truth, and thus constituted hearsay.
However, there are many exceptions to the general rule against
hearsay. The trial court determined that these statements were both
inconsistent and consistent, and relied upon the decisions in Brady
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(inconsistent statements) and Hunzer (consistent statements) in ruling them
admissible. Upon examination of these decisions, and other decisions
regarding the relevant rules of evidence, we conclude that the trial court’s
reasoning does not support admission of any of the statements at issue.
In Brady, our Supreme Court overruled prior decisions that provided
that prior inconsistent statements of a non-party witness could not be used as
substantive evidence of the truth of the matters asserted, but only for
impeachment. Brady, supra at 67. Brady, which predated the adoption of
our rules of evidence, is consistent with Pa.R.E. 803.1(1), which now governs
the admissibility of prior inconsistent statements. Rule 803.1 provides, in
relevant part, as follows.
The following statements are not excluded by the rule against
hearsay if the declarant testifies and is subject to cross-
examination about the prior statement:
(1) Prior Inconsistent Statement of Declarant-Witness.
A prior statement by a declarant-witness that is inconsistent
with the declarant-witness’s testimony and:
(A) was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic recording of
an oral statement.
Pa.R.E. 803.1(1). A witness may be impeached with a prior inconsistent
statement without revealing the statement or its contents to the witness at
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the time. Pa.R.E. 613(a). However, more stringent requirements control
admission of extrinsic evidence of such statements:
(b) Extrinsic Evidence of a Witness’s Prior Inconsistent
Statement. Unless the interests of justice otherwise require,
extrinsic evidence of a witness’s prior inconsistent statement is
admissible only if, during the examination of the witness,
(1) the statement, if written, is shown to, or if not written, its
contents are disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the
making of the statement; and
(3) an adverse party is given an opportunity to question the
witness.
Pa.R.E. 613(b).
To the extent that S.W.’s statements to her mother are inconsistent with
her trial testimony,3 the requirements of neither Rule 803.1(1) nor Rule
613(b) were satisfied. The statements to her mother were not given under
oath, in a writing adopted by S.W., or in a contemporaneous recording.
Further, S.W. was not presented with the statements and given an opportunity
to explain or deny making it.4 As such, the Commonwealth’s extrinsic
____________________________________________
3For example, S.W. testified at trial that Appellant’s mouth was closed when
he kissed her, while she told her mother that Appellant put his tongue in her
mouth.
4 Although Appellant also contends that he did not have the opportunity to
cross-examine S.W. at trial about her out-of-court statements, as noted,
Appellant did not object to the Commonwealth’s failure to recall S.W. after
any of the statements were admitted or himself request that she take the
stand for such purposes. Therefore, we agree with the Commonwealth that
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evidence of S.W.’s statements to her mother was not properly admitted under
Rules 803.1(1) and 613(b). Cf. Commonwealth v. Charleston, 16 A.3d
505, 527 (Pa.Super. 2011), abrogated on other grounds, In re L.J., 79 A.3d
1073 (Pa. 2013) (holding extrinsic evidence of witness’s out-of-court
statements was properly admitted where the Commonwealth disclosed
contents of statement to witness during examination and asked witness about
making the statement, and the defense was given the opportunity to question
the witness about it).
Nor were the inconsistent statements in S.W.’s forensic interview or
preliminary hearing testimony properly admitted under these rules. The
Commonwealth did not offer the statements during its examination of S.W.,
but only after S.W. left the witness stand without having presented their
contents to her and giving her an opportunity to explain them. Cf. Brady,
supra at 70-71 (detailing the Commonwealth’s examination of the witness
with her prior inconsistent statement and the witness’s admission that she
made the statement before a video recording of the statement was admitted
as substantive evidence and played to the jury).
____________________________________________
Appellant did have the opportunity to cross-examine S.W. about the out-of-
court statements, but neglected to exercise it. See Commonwealth’s brief at
21 (“For whatever reason, [S.W.] was not recalled and defense counsel never
mentioned the matter again.”).
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To the extent that the trial court admitted the three instances of S.W.’s
out-of-court statements as prior consistent statements, Pa.R.E. 613(c)
applies. That rule 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’s denial or explanation.
Pa.R.E. 613(c). “A prior consistent statement is always received for
rehabilitation purposes only and not as substantive evidence.”
Commonwealth v. Busanet, 54 A.3d 35, 67 (Pa. 2012) (cleaned up).
The Commonwealth in its brief concedes that none of S.W.’s out-of-
court statements at issue was properly admitted under Rule 613(c): 5
Regardless of whether any of the victim’s statements could be
construed as “consistent” with her previous testimony and
interview statements, the record does not establish a charge of
recent fabrication such that prior consistent statements were
admissible. Nor did the victim make a prior “inconsistent”
statement that she denied or explained. . . .
____________________________________________
5 This Court applauds the Commonwealth’s observance, on this issue and
throughout its brief, of its duty under Rule 3.1 of the Rules of Professional
Conduct not to controvert issues when doing so lacks a non-frivolous basis in
law or fact.
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Furthermore, this Court recently determined that the
forensic interview of a victim may not be introduced as a prior
consistent statement where there is no allegation of “recent
fabrication” in Commonwealth v. Bond, [190 A.3d 664, 670
(Pa.Super. 2018), and] the victim’s motive to lie arose “before she
first complained of the assault.” . . . In the instant case, there is
no suggestion of falsification occurring after the forensic interview.
Consequently, they would not be admissible as rebuttal.
Commonwealth’s brief at 24.
We agree. For these reasons, the trial court’s reliance upon Hunzer to
support its decision to admit the statements as prior consistent statements is
misplaced. See Hunzer, supra at 513 (holding prior consistent statements
of child-victim were properly admitted under Rule 613(c) where “the
Commonwealth utilized the victim’s prior consistent statements to rebut an
inference of recent fabrication” and the defendant had impeached the witness
with prior inconsistent statements).
Our conclusion that the trial court’s stated bases for admitting S.W.’s
out-of-court statements were erroneous does not end our inquiry, as we may
affirm a trial court decision on any basis apparent from the record. See, e.g.,
Commonwealth v. Fant, 146 A.3d 1254, 1265 n.13 (Pa. 2016) (“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.”). Therefore, we
consider whether any other rules of evidence allow for the admission of S.W.’s
hearsay statements.
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Rule 803.1(3) provides an exception to the rule against hearsay, when
a witness testifies at trial and is subject to cross-examination, for the recorded
recollection of the witness. Specifically, a “memorandum or record made or
adopted by a declarant witness” is admissible when it
(A) is on a matter the declarant-witness once knew about but now
cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the
matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her
knowledge at the time when made.
Pa.R.E. 803.1(3). “If admitted, the memorandum or record may be read into
evidence and received as an exhibit, but may be shown to the jury only in
exceptional circumstances or when offered by an adverse party.” Id.
Both the preliminary hearing testimony and forensic interview arguably
qualify as a record of S.W.’s recollection.6 See, e.g., Commonwealth v.
Shelton, 170 A. 3d 549, 552 (Pa.Super. 2017) (holding video recording of a
forensic interview constituted a recorded recollection for purposes of Pa.R.E.
803.1(3)). S.W. acknowledged at trial that she had given other statements
about the incidents in question, testifying that she “started going to these
different places” after she told her mother about Appellant’s conduct and, at
one of these places, told the forensic interviewer that Appellant touched her
____________________________________________
6This exception obviously is inapplicable to support the testimony of S.W.’s
mother; it is not a memorandum or record.
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in a certain way on her face, legs, and arms. N.T. Trial, 3/1-7/17, at 75. This,
combined with S.W.’s indications at trial that she did not remember or did not
know the answers to the Commonwealth’s questions, suggest that S.W. once
knew about the matters in question but could no longer recall well enough to
testify about them. However, the record does not establish that the
statements recorded at the preliminary hearing and the forensic interview
were made at a time that the matter was fresh in S.W.’s memory. Nor did
S.W. testify at trial that the preliminary hearing transcript and the forensic
interview video accurately reflect her knowledge at the time they were made.
Without such a foundation, Rule 803.1(3) is not a valid basis upon which to
affirm the admission of the hearsay statements. Cf. Shelton, supra
(affirming admission of forensic interview where the victim testified at trial
that her memory was much better at the time the video was made).
Another hearsay exception potentially applicable to S.W.’s preliminary
hearing testimony is found at Pa.R.E. 804(b)(1). That rule provides:
The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding or a
different one; and
(B) is now offered against a party who had . . . an opportunity
and similar motive to develop it by direct, cross-, or redirect
examination.
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Pa.R.E. 804(b). The rule provides criteria for determining whether a declarant
is “unavailable,” including when the declarant “testifies to not remembering
the subject matter, except as provided in Rule 803.1(4)[.]”7 Pa.R.E. 804(a).
While the Commonwealth contends that S.W. could be considered to
have been unavailable at trial based upon her lack of memory, see
Commonwealth’s brief at 27, it concedes that the preliminary hearing
testimony was not admissible under Rule 804(b)(1) because of “the limited
scope of cross-examination” provided to Appellant at the preliminary hearing.
See id. at 28 n.3. We agree that Rule 804(b)(1) does not validate the
admission for that reason. See, e.g., N.T. Preliminary Hearing, 7/1/16, at 27
(sustaining Commonwealth’s objection to Appellant’s cross-examination of
S.W. because “credibility is not at issue at a preliminary hearing”).
Finally, we consider whether the hearsay evidence of S.W.’s statements
at the preliminary hearing, in the forensic interview, and to her mother were
properly admitted under the tender years hearsay exception codified at 42
Pa.C.S. § 5985.1. That statute provides as follows in relevant part.
____________________________________________
7 “The purpose of [Rule 803.1(4)’s] hearsay exception is to protect against
the ‘turncoat witness’ who once provided a statement, but now seeks to
deprive the use of this evidence at trial.” Pa.R.E. 803.1(4), Comment. It
applies “when the declarant-witness feigns memory loss about the subject
matter of the statement.” Id. If the claim of memory loss is credible, Rule
803.1(3) (recorded recollection, discussed supra) applies instead. Id. There
is no indication in the record that the trial court found that S.W. feigned her
lack of recollection about the events such that this rule was applicable to
protect against her being a turncoat witness. As such, Rule 803.1(4) does not
support the admission of S.W.’s out-of-court statements.
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(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing[, inter alia, the sexual
offenses for which Appellant was tried,] not otherwise admissible
by statute or rule of evidence, is admissible in evidence in any
criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence
is relevant and that the time, content and circumstances of the
statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
....
(b) Notice required.--A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of the
proponent’s intention to offer the statement and the particulars of
the statement sufficiently in advance of the proceeding at which
the proponent intends to offer the statement into evidence to
provide the adverse party with a fair opportunity to prepare to
meet the statement.
42 Pa.C.S. § 5985.1.
“Relative to the notice requirement under this hearsay exception, the
Commonwealth has the burden of providing actual notice of an intention to
offer the hearsay statement.” Commonwealth v. O’Drain, 829 A.2d 316,
320 (Pa.Super. 2003). However, “the notice need not contain an exact word-
for-word recitation of that out-of-court statement. . . . Rather, the Act merely
requires that the notice contain ‘the particulars of the statement.’” Hunzer,
supra at 511.
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The Commonwealth acknowledges that no in camera hearing was held
in which the trial court reviewed the proposed evidence and found it to have
sufficient indicia of reliability, but argues that such was evident from the on-
the-record discussion, and Appellant did not object to the lack of a hearing.
Commonwealth’s brief at 17. However, even assuming arguendo that
subsection (a) of the statute was satisfied, there is no indication in the record
that the Commonwealth gave Appellant notice of its intent to invoke the
tender years exception in advance of trial. On the contrary, Appellant
specifically objected at trial that “under Hunzer . . . it requires notice of the
tender years exception, which we did not receive until right now.” N.T. Trial,
3/1-7/17, at 81. The language of subsection (b) is clear: the statements “shall
not be received into evidence” unless the notice requirement is satisfied.
Accordingly, the tender years hearsay exception does not justify the trial
court’s decision to admit S.W.’s out-of-court statements for the truth of the
matters asserted therein.
Having determined that the multiple instances of hearsay were admitted
erroneously, we consider whether the trial court’s errors were harmless. See,
e.g., Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (“[T]he
doctrine of harmless error is a technique of appellate review designed to
advance judicial economy by obviating the necessity for a retrial where the
appellate court is convinced that a trial error was harmless beyond a
reasonable doubt.”).
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As our reproduction of S.W.’s trial testimony supra indicates, the only
properly-admitted inculpatory testimony offered by S.W. at trial was that
Appellant touched her in a way she did not like with his hands and his lips; he
asked her to sit on his lap; and he gave her long, closed-mouth kisses on the
lips and cheeks, but not on any other parts of her body. Given the elements
of the crimes of unlawful conduct with a minor,8 endangering the welfare of
children,9 and corruption of minors,10 we cannot conclude beyond a reasonable
doubt that the improperly-admitted hearsay evidence did not contribute to the
guilty verdicts.
Accordingly, it is clear that the trial court’s errors in admitting
preliminary hearing testimony, the forensic interview, and the hearsay
____________________________________________
8 See 18 Pa.C.S. § 6318(a)(1) (“A person commits an offense if he is
intentionally in contact with a minor, . . . for the purpose of engaging in an
activity prohibited under any of the following . . . : (1) Any of the offenses
enumerated in Chapter 31 (relating to sexual offenses).”).
9 See 18 Pa.C.S. § 4304(a)(1) (“A parent, guardian or other person
supervising the welfare of a child under 18 years of age, or a person that
employs or supervises such a person, commits an offense if he knowingly
endangers the welfare of the child by violating a duty of care, protection or
support.”).
10See 18 Pa.C.S. § 6301(a)(1)(ii) (“Whoever, being of the age of 18 years
and upwards, by any course of conduct in violation of Chapter 31 (relating to
sexual offenses) corrupts or tends to corrupt the morals of any minor less than
18 years of age, or who aids, abets, entices or encourages any such minor in
the commission of an offense under Chapter 31 commits a felony of the third
degree.”).
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testimony of S.W.’s mother were not harmless. See, e.g., Commonwealth
v. LaRosa, 626 A.2d 103, 108 (Pa. 1993) (“Whenever there is a reasonable
possibility that an error might have contributed to the conviction, the error is
not harmless.”) (cleaned up). Therefore, we must vacate Appellant’s
judgment of sentence and remand this case for a new trial. See id.
(remanding for a new trial where, preliminary hearing testimony was
erroneously admitted, where the Court could not conclude beyond a
reasonable doubt that the fact-finder would have reached the same result
absent the improperly-admitted evidence).
Judgment of sentence vacated. Case remanded for new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2019
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Com. v. Mitchell, C.
Combined Opinion