Commonwealth v. Raboin

258 A.3d 412

COMMONWEALTH of Pennsylvania, Appellee

v.Thomas August RABOIN, Appellant

No. 9 WAP 2020

Supreme Court of Pennsylvania.

Argued: December 2, 2020

Decided: September 7, 2021

Frank P. Cervone, Esq., for Support Center for Child Advocates, A Child's Place Child Advocacy Center, Aequitas, Center for Child Justice/Blair County Children's Advocacy Center, Center for Children's Justice, Johnston-Walsh, Lucille, The Children's House Child Advocacy Center, Child Advocacy Center of Clearfield County, Children's Resource Center, Family Support Line of Delaware County, Kay's Cottage HAVIN Inc., KidsVoice, Mercer County Behavioral Health Commission, Mission Kids Child Advocacy Center, Children's Advocacy Center of Monroe County, National Children's Advocacy Center, National Children's Alliance, Network of Victim Assistance, Over The Rainbow Children's Advocacy Center, Pennsylvania Chapter of Children's Advocacy Centers & Multidisciplinary Teams, Pennsylvania Children and Youth Administrators Association, Inc., Pennsylvania Coalition Against Rape, Philadelphia Children's Alliance, and Zero Abuse Project, Amici Curiae.

Michael F. J. Piecuch, Esq., Snyder County DA's Office, Sarah Ann Wilson, Esq., Pike County District Attorney's Office, for Pennsylvania District Attorneys Association, 2929 N Front St. Harrisburg PA 17110, Amicus Curiae.

Peter Rosalsky, Esq., for Defender Association of Philadelphia, Amicus Curiae.

Robert E. Mielnicki, Esq., for Appellant.

Francesco Lino Nepa, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE MUNDY

I. Introduction

In this appeal by allowance, we consider whether the Commonwealth was permitted to introduce nearly all of a child sexual assault victim's forensic interview in rebuttal pursuant to Pennsylvania Rule of Evidence 106. See Pa.R.E. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time."). We conclude that introduction of the interview on this basis was improper and remand for the Superior Court to consider, as the trial court initially concluded, whether the interview was nonetheless admissible as a prior consistent statement under Pa.R.A.P. 613(c).^{1 ,2} We therefore reverse and remand to the Superior Court for further consideration.

II. Facts and Procedural Background

In January 2011, Appellant Thomas August Raboin began dating K.B. He moved into K.B.’s home shortly thereafter, where she lived with her three minor daughters and multiple other individuals. At this time, K.B.’s eldest daughter ("the victim") was in kindergarten. Appellant moved out a few years later when the couple ended their relationship, at which point the victim was in second grade. During the victim's fourth-grade year, she disclosed to her mother that Appellant had sexually abused her while living in their home. She explained that on several occasions, Appellant summoned her into the shower and sexually assaulted her. K.B. immediately contacted the police, who arranged for a forensic interview.

The forensic interview was videotaped and observed by a detective behind a one-way mirror. During the interview, the victim recounted these instances of sexual abuse. She also explained several times that she complied with Appellant's requests because she was scared that he would hurt her, her sisters, or her mother. See Forensic Interview Transcript, 7/6/17, at 11, 32, 37-38. The victim also reported that Appellant was "really mean." Id. at 18. She also explained that Appellant would frequently "push [her] mom" and "slap her hands and push her to the ground. And I didn't tell anyone because I thought that if I did tell someone, he would try to hurt me or my mom again." Id. at 32.

Following this interview, the detective prepared a police report and an arrest warrant was issued. Appellant was subsequently arrested and charged with the following offenses: involuntary deviate sexual intercourse with a child, unlawful contact with a minor, indecent assault of a person less than thirteen years of age, endangering the welfare of a child, corruption of minors, and indecent exposure.

On March 9, 2018, Appellant proceeded to a jury trial. At trial, the victim testified that Appellant began sexually assaulting her in the shower sometime between kindergarten and second grade, but she could not recall the exact time period. She also stated that she got in the shower with Appellant out of fear "[b]ecause he was much taller and had once pushed [her] mother." N.T. Trial, 3/9-12/18, at 38. The victim also testified that she was afraid to tell anyone about the abuse because she believed Appellant might hurt her. Id. at 48. On cross-examination, Appellant's attorney attempted to draw inconsistencies between the victim's forensic interview and her trial testimony regarding when the abuse occurred and the time period in which Appellant lived in the family's home. Id. at 68-73, 79-80.

The Commonwealth also called as witnesses K.B. and the detective who observed the forensic interview. Both corroborated the victim's trial testimony to the extent she relayed the same information concerning the assault when questioned by them. During cross-examination of the detective, Appellant's attorney similarly attempted to draw inconsistencies between the victim's forensic interview and the detective's trial testimony. Id. at 159-63. He inquired whether the victim ever mentioned during the forensic interview that Appellant would call out to the victim from the shower and ask her to come in, to which the detective replied, "I don't think so." Id. at 160. The detective also recalled the victim stating that the abuse took place when she was in kindergarten. Defense counsel challenged this by asking the detective whether he was certain and proceeded to confront him with the police report prepared based on the victim's forensic interview. The report stated that "a former boyfriend was in the bathroom when [the victim] was eight years old and sexually assaulted her numerous times." Id. at 161. The detective responded by explaining he was unsure how old children are in kindergarten, which is why he also included in the report, "See DVD for full interview." Id.

Appellant testified in his own defense at trial, denying the allegations. At the conclusion of Appellant's presentation of evidence, the Commonwealth requested to play the victim's forensic interview in rebuttal on the basis that it was a prior consistent statement. See Pa.R.E 613(c)(1). Appellant objected to the admission of the interview in its entirety. Then, following a lengthy in-chambers discussion involving specific objections to portions of the forensic interview, the trial court largely permitted its introduction, aside from several pages that the court reasoned were hearsay. The trial court's rationale for allowing introduction of the forensic interview was that it constituted a prior consistent statement and rehabilitative evidence. At the conclusion of the video, the trial court instructed the jury that "the forensic interview ... offered by the Commonwealth [is] ... what is known as a prior consistent statement, and as such, it is to be used by you only for the purpose of helping you to determine the credibility of [the victim] as she testified here in court. It is not to be used by you for proof of the truth of any matter stated here in court. It is not to be used by you for proof of the truth of any matter stated in her forensic interview." N.T. Trial, 3/9-12/18, at 243.

The jury ultimately convicted Appellant of involuntary deviate sexual intercourse with a child, unlawful contact with a minor, indecent assault of a person less than thirteen years of age, endangering the welfare of a child, corruption of minors, and indecent exposure. He was sentenced to 168 to 416 months’ imprisonment to be followed by five years’ probation. Appellant filed post-sentence motions, which the trial court denied. He then filed a timely notice of appeal claiming, inter alia , that the trial court erred in admitting the victim's forensic interview as rebuttal evidence.

In its Pa.R.A.P 1925(a) opinion, the trial court explained that it deemed the forensic interview admissible as a prior consistent statement based on two cases, Commonwealth v. Willis , 380 Pa.Super. 555, 552 A.2d 682 (1988), and Commonwealth v. Hunzer , 868 A.2d 498 (Pa. Super. 2005), which had since been called into question by, inter alia , Commonwealth v. Bond , 190 A.3d 664 (Pa. Super. 2018). Trial Ct. Op., 11/14/18, at 10. It reasoned, however, that this decision was harmless. Id. The court explained that Appellant had an opportunity to review the interview during pretrial discovery and was also afforded an opportunity to, and did in fact, cross-examine the victim at trial concerning the reasons for her delay in reporting the assaults. Id. at 10-11. The court maintained that admission of the interview was cumulative and harmless as a result. Id. at 11.

Appellant appealed to the Superior Court, claiming the trial court erred in admitting the forensic interview during the Commonwealth's rebuttal. He specifically averred the interview was inadmissible as a prior consistent statement because it did not predate the victim's initial accusations, which Appellant claimed were false. In support of this position, Appellant relied on Bond , decided only two days following the trial court's imposition of sentence, to argue the forensic interview was inadmissible under Rule 613(c).

Bond was accused of sexually assaulting his girlfriend's daughter. Later that day, the child wrote a note detailing what had happened and gave it to her great aunt. The great aunt then informed the child's mother, who called the police. The child was later...