Com. v. Raboin, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THOMAS AUGUST RABOIN :
:
Appellant : No. 976 WDA 2018
Appeal from the Judgment of Sentence Entered June 11, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009844-2017
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 22, 2021
Thomas August Raboin appeals from the judgment of sentence imposed
following his conviction for involuntary deviate sexual intercourse with a child,
unlawful contact with a minor, indecent assault person less than 13 years of
age, endangering the welfare of a child, corruption of minors, and indecent
exposure.1 This Court initially affirmed Raboin’s judgment of sentence.
However, our Supreme Court reversed that ruling and remanded the matter
back to this Court for consideration of an evidentiary issue. Having considered
that issue, we vacate the judgment of sentence and remand for a new trial.
Our Supreme Court summarized the relevant factual and procedural
background of this matter as follows:
____________________________________________
1 See 18 Pa.C.S.A. §§ 3123(b), 6318(a)(1), 3126(a)(7), 4304(a)(1),
6301(a)(1), and 3127(a).
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In January 2011, [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.
[Raboin] 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 [Raboin] had sexually abused her while living in their home.
She explained that on several occasions, [Raboin] 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 [Raboin’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 [Raboin] was
“really mean.” Id. at 18. She also explained that [Raboin] 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. [Raboin] 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, [Raboin] proceeded to a jury trial. At
trial, the victim testified that [Raboin] 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 [Raboin] 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 [Raboin] might hurt her. Id. at 48. On cross-
examination, [Raboin’s] attorney attempted to draw
inconsistencies between the victim’s forensic interview and her
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trial testimony regarding when the abuse occurred and the time
period in which [Raboin] 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, [Raboin’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 [Raboin] 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.
[Raboin] testified in his own defense at trial, denying the
allegations. At the conclusion of [Raboin’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). [Raboin] 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.
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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 [Raboin] 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. [Raboin]
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, . . .
552 A.2d 682 (Pa. Super. 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 [Raboin] 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.
[Raboin] 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 [Raboin]
claimed were false. In support of this position, [Raboin] 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).
****
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In the instant matter, the Superior Court affirmed in a
unanimous, unpublished memorandum. Commonwealth v.
Raboin, 221 A.3d 328 . . . ([Pa. Super.] 2019) (unpublished
memorandum). The court recognized that in Bond the victim’s
forensic interview was deemed inadmissible as a prior consistent
statement because the child’s statements in the interview were
not made before the alleged fabrication. [Id.] at *3 (citing Bond,
190 A.3d at 670). It then explained that the Bond court
nonetheless concluded the victim’s forensic interview was
admissible as a remainder of a recorded statement pursuant to
Rule 106. Id. (citing Bond, 190 A.3d at 673) (“Given the extent
to which defense counsel relied on the [i]nterview [v]ideo during
her cross-examination of the victim, the prosecution was entitled
to introduce [the victim’s] entire account of the assault in order to
provide full context.”). [Id]. The court explained that similar to
Bond, present defense counsel thoroughly cross-examined both
the victim and the assigned detective regarding the contents of
the interview. Id. The Commonwealth was therefore permitted to
admit the victim’s “entire account of the assault in order to provide
full context.” Id. The Superior Court never addressed whether
the victim’s forensic interview was admissible as a prior consistent
statement, instead relying on the alternative holding in Bond
which found the victim’s forensic interview admissible under Rule
106. Id. (citing Commonwealth v. Fant, . . . 146 A.3d 1254,
1265 n.13 (explaining “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 of
record”) (citations omitted)). The Superior Court therefore
affirmed [Raboin’s] judgment of sentence.
Commonwealth v. Raboin, 258 A.3d 412, 415-17 (Pa. 2021).
Following this Court’s decision, Raboin filed a petition for allowance of
appeal in our Supreme Court. The High Court granted the appeal to consider
the following question:
Where the Commonwealth is permitted a near blanket
introduction of [the] videotaped forensic examination of a child
victim in a sexual assault case, during rebuttal, and thus not
contemporaneous with any limited reference to said forensic
examination by the defense, where numerous unfairly prejudicial
statements are contained in the forensic examination, is such
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appropriate under the rule of completeness set [forth] in Pa.R.E.
106?
Commonwealth v. Raboin, 233 A.3d 672 (Pa. 2020) (per curiam)
The High Court determined that defense counsel’s introduction of the
forensic interview through extensive questioning of the victim and the
detective on cross-examination created a misleading impression that the
victim’s trial testimony was at odds with or contained additional information
than that relayed in the forensic interview. The Court concluded that these
lines of questioning permitted the Commonwealth to seek admission of
additional portions of the forensic interview to provide the jury with a clear
picture of the victim’s statement. However, the Court ruled that, pursuant to
the temporal requirements of Rule 106, the additional portions the forensic
interview should have come in at or near the time of defense counsel’s
questioning of the victim or the detective, such as during defense counsel’s
cross-examination of the victim and the detective or on re-direct. The Court
ruled that Rule 106 does not authorize the admission of the forensic interview
on rebuttal, such as occurred in this case.
The High Court additionally ruled that the fairness requirement of Rule
106 merely allows introduction of that evidence necessary to correct the
misleading impression. The High Court determined that although the
admission of some of the forensic interview served to correct the misleading
impression created during defense counsel’s cross-examination of the victim
and detective, the vast majority of it did not. For these reasons, the Court
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concluded that the trial court erred in admitting nearly all of the victim’s
forensic interview pursuant to Rule 106.
Nevertheless, because Raboin had preserved his challenge to the trial
court’s alternate ruling that the forensic interview was admissible as a prior
consistent statement, the High Court remanded the matter for this Court to
address the admissibility of the forensic interview under Rule 613(c). 2 We
therefore re-examine this matter to determine whether the forensic interview
was admissible as a prior consistent statement under Rule 613(c).
Our standard of review concerning the admissibility of evidence is well-
settled:
The admission of evidence is solely within the discretion of
the trial court, and a trial court’s evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion. An
abuse of discretion will not be found based on a mere error of
judgment, but rather occurs where the court has reached a
conclusion that overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).
Rule 613(c) states, in pertinent part:
(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence
of a witness’s prior consistent statement is admissible to
____________________________________________
2 As explained above, this Court declined to address whether the victim’s
forensic interview was admissible as a prior consistent statement due to our
ruling that the victim’s forensic interview was admissible under Rule 106. See
Fant, 146 A.3d at 1265 n.13 (explaining that appellate courts may affirm for
any valid reason appearing of record). Thus, because this Court found a basis
to affirm the trial court’s ruling, it did not need to address the question of
whether the forensic interview was admissible on any other basis.
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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).
In the instant matter, the trial court ruled at trial that the forensic
interview was admissible as a prior consistent statement under Willis and
Hunzer.3 However, in its Pa.R.A.P. 1925(a) opinion, the trial court tacitly
acknowledged that it’s reliance on Willis and Hunzer was undermined by
____________________________________________
3 Willis and Hunzer endorsed the notion that fact-finders would see children
as inherent fabulists and prone to flights of fancy and exaggeration, thereby
permitting the introduction of prior consistent statements “to corroborate even
unimpeached testimony of child witnesses[.]” Willis, 552 A.2d at 692.
Hunzer approvingly quoted Willis in allowing similar evidence. See Raboin,
258 A.3d at 425 n.2. However, two days after Raboin’s sentencing, this Court
issued its decision in Bond, which limited Willis on the grounds the opinion
pre-dated the enactment of Rule 613. The Bond Court explained that
Hunzer’s reliance on Willis was dicta, as the prior statements were
admissible under the facts of Hunzer to rebut an allegation of recent
fabrication.
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Bond, but instead asserted that the error was harmless. See Trial Court
Opinion, 11/14/18, at 10-11.4 The trial court stated:
This Court permitted the playing of the video in rebuttal as
a prior consistent statement. As stated above, th[is] court relied
upon Willis and Hun[z]er. This court would again assert that the
harmless error doctrine applies. Admission of the video interview
of [the victim] does not prejudice [Raboin], inasmuch as counsel
for [Raboin] had reviewed the forensic interview during pretrial
discovery and had a full opportunity to cross-examine [the victim]
at trial regarding the reasons for her delay in reporting the sexual
assaults. In fact, counsel for [Raboin] cross-examined [the
victim] regarding the forensic interview. As the forensic interview
was cumulative, any error in admitting the interview was
harmless.
Id. (citations to the record and unnecessary capitalization omitted).
Based on our review, we conclude that some of defense counsel’s cross-
examination of the victim and the detective touched on an implicit or explicit
accusation of the grounds listed in Rule 613(c)(1) because counsel attempted
to establish that the victim omitted some details from her forensic statement
and/or changed her version of events in ways that suggested her testimony
____________________________________________
4The Commonwealth similarly acknowledges that Rule 613 does not apply
under governing Superior Court precedent:
[A]ny motive that [the victim] would have had to lie about the
actions that she attributed to Raboin would have existed at the
time that she submitted to the forensic interview. Therefore, it
would appear that [the trial court], as outlined in Bond, was not
justified in admitting the video as a prior consistent statement to
rehabilitate the victim.
Commonwealth’s Brief at 18 (footnote omitted).
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did not meet the beyond a reasonable doubt threshold needed to convict. See
Raboin, 258 A.3d at 429 (Donohue J., concurring and dissenting opinion).
Nevertheless, our Supreme Court ruled that “[a]lthough some of the interview
served to correct the misleading impression created during defense counsel’s
cross-examination of the victim and detective, the vast majority of it did not.”
Id. at 423-24. Although the majority reached this conclusion with respect to
its Rule 106 analysis, the same reasoning applies to a Rule 613(c) analysis.
See id. at 429 (Donohue J., concurring and dissenting opinion) (reasoning
that “[a]dmitting prior consistent statements that respond to an accusation of
fabrication would not justify permitting statements that had nothing to do with
that charge”). Thus, while some portions of the forensic interview may have
been admissible under Rule 613(c), most of the interview was not. Given this
determination, we need not identify each and every statement may have been
justifiably admitted as prior consistent statements and which were not. See
id. (Donohue J., concurring and dissenting opinion) (concluding that “we need
not parse out which statements may have been justifiably admitted as prior
consistent statements and which were not”). Instead, we conclude that the
trial court abused its discretion by admitting the portions of the forensic
interview which did not directly address the rationale for admitting the prior
consistent statement.
Having determined that the trial court’s discretion was abused, we must
determine whether such error was harmless. Our legal standards governing
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harmless error are well-settled. An error warrants relief only if the appellate
court is convinced beyond a reasonable doubt that the error is harmless.
Commonwealth v. Story, 383 A.2d 155, 162, 164 (Pa. 1978) (holding that
“an error cannot be held harmless unless the appellate court determines that
the error could not have contributed to the verdict”). In making such a
determination, we are guided by the following principles:
Harmless error exists where: (1) the error did not prejudice
the defendant or the prejudice was de minimis; (2) the
erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the
erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Smith, 861 A.2d 892, 897 (Pa. 2004). Whenever there
is a reasonable possibility that an error might have contributed to the
conviction, the error is not harmless. Story, 383 A.2d at 164. When
reviewing for harmless error, the appellate court considers only the
uncontradicted evidence and, having done so, proceeds to determine whether
that body of uncontradicted evidence was so overwhelming that the erroneous
admission of the evidence could not have impacted the verdict. See
Commonwealth v. Fitzpatrick, 255 A.3d 452, 470 (Pa. 2021). The
Commonwealth bears the burden of proving that the error was harmless
beyond a reasonable doubt. Story, 383 A.2d at 162 n.11.
In the instant matter, the evidence of abuse was disputed. Raboin took
the witness stand and denied all of the allegations levied against him. Several
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defense witnesses testified that Raboin was never alone in the house with the
victim, and that another adult resident or a babysitter was always present
when Raboin was home. Raboin himself similarly testified that there were
always multiple adults in the home when the victim was there. Thus, we
cannot conclude that there is any body of uncontradicted evidence which was
so overwhelming that the erroneous admission of the forensic interview could
not have impacted the verdict.
Nor can we conclude that the erroneously admitted portions of the
forensic interview were merely cumulative of other untainted evidence which
was substantially similar to the erroneously admitted evidence. Without
explanation, the trial court concluded that “the forensic interview was
cumulative” Trial Court Opinion, 11/14/18, at 11. The Commonwealth
contends that the forensic interview was cumulative of the victim’s trial
testimony that she was afraid Raboin might hurt her or her family if she
reported the abuse. Commonwealth’s Brief at 39. However, in the forensic
interview, the victim expressed more than just a general fear of Raboin.
Indeed, the victim stated in the interview that Raboin “was really mean,”
physically abused her mom, and would withhold food from her and her siblings
when he watched them. See Forensic Interview Transcript, 7/6/17, at 18;
see also id. at 31 (where the victim stated that “he wouldn't feed us”); id.
at 32 (where the victim stated “[h]e would always push my mom, and he
would hurt her, you know? He would slap her hands and push her to the
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ground.”). Thus, the forensic interview was not merely cumulative evidence,
and instead constituted supplemental evidence which expanded on the
victim’s trial testimony.
Finally, we cannot conclude that the erroneous admission of the forensic
interview did not prejudice Raboin or that any prejudice was de minimis. The
forensic interview (which consisted of forty-two pages) was not introduced
until the rebuttal phase of trial. Therefore, the interview video was the last
thing that the jury saw before it received instructions and debated whether
the Commonwealth met its burden. Moreover, because the rebuttal took place
three days after the victim’s testimony, whatever effect Raboin’s cross-
examination of the victim had would be diminished by viewing a testimonial
videotape that was not subject to rebuttal or cross-examination. See Raboin,
258 A.3d at 431-32 (Donohue, J., concurring and dissenting) (citing the
confrontation clause and observing that “Raboin could not cross-examine the
tape, and the myriad audio and visual clues that it contains were not subject
to any adversarial testing”). As Raboin was unable to rebut the interview
video, it may have bolstered the victim’s credibility in the minds of the jurors.
See id. at 424 (Wecht, J., concurring and dissenting). Based on these
considerations, it would be impossible for this Court to determine what effect
such supplementary material had on the jury's credibility assessments or
conclude beyond a reasonable doubt that the interview did not influence the
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jury’s verdict. See id. at 431 (Donohue, J., concurring and dissenting); see
also id. at 424 (Wecht, J. concurring and dissenting)
As this Court is not convinced beyond a reasonable doubt that the
admission of nearly all of the forensic video was harmless, we are compelled
to vacate Raboin’s judgment of sentence and remand for a new trial.
Judgment of sentence vacated. Case remanded for new trial.
Jurisdiction relinquished.
Judge Ott did not participate in the consideration or disposition of this
appeal.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2021
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