J-S11026-18

                                  2018 PA Super 163



    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    GEORGE G. BOND

                             Appellant                  No. 374 EDA 2017


        Appeal from the Judgment of Sentence imposed January 4, 2017
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0007801-2014


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                                  FILED JUNE 13, 2018

        Appellant, George G. Bond, appeals from the January 4, 2017 judgment

of sentence imposing an aggregate 27½ to 55 years for involuntary deviate

sexual intercourse (“IDSI”), unlawful contact with a minor, aggravated

indecent assault, and indecent assault.1 We affirm.

        The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion.

              At trial it was established that on May 24, 2014, A.P.
        [“Child”], then age 10, her mother, S.P. [“Mother”] and [Mother’s]
        boyfriend, the [Appellant] George Bond, lived on the first floor
        apartment of premises 1260 South 60th Street, Philadelphia.
        While [Mother] was at work, [Child] told [Appellant] that she was
        hungry. [Child] sat on [Mother’s] bed. [Appellant] was lying on
        the same bed. While [Child] was searching for restaurants on her
        tablet, [Appellant] started to rub her and told her to pull down her


____________________________________________


1    18 Pa.C.S.A. §§ 3123(c), 6318(a)(1), 3125(a)(7), 3126(a)(7).
J-S11026-18


       pants. She did. [Appellant] inserted his finger into her vagina,
       performed oral sex on her and then exposed his penis.

             Later that day, [Child] approached her great aunt, [“Great
       Aunt”], who lived in the upstairs apartment of the building.
       [Child] was too embarrassed to tell [Great Aunt] what happened.
       Instead, she wrote a note recounting the incident. She showed
       the note to [Great Aunt]. [Great Aunt] and [Child] informed
       [Mother] about the incident by telephone. [Mother] came home
       and summoned the police.

             [Child] was interviewed by [Michelle Kline], a forensic
       interview specialist with the Philadelphia Children’s Alliance. A
       video of the interview was played to the jury.

Trial Court Opinion, 5/12/17, at 2-3.

       On March 15, 2016, at the conclusion of trial, the jury found Appellant

guilty of the aforementioned offenses. The trial court imposed sentence on

January 4, 2017.       On January 12, 2017, Appellant filed a motion for

reconsideration of the sentence. The trial court denied that motion the same

day.    Appellant filed this timely appeal on January 19, 2017.          His sole

contention is that the trial court erred in permitting the jury to see a video of

Child’s forensic interview (the “Interview Video”) with Philadelphia Children’s

Alliance (“PCA”). Appellant’s Brief at 3.

       We review the trial court’s evidentiary rulings for abuse of discretion.

              The admission or exclusion of evidence is within the sound
       discretion of the trial court, and in reviewing a challenge to the
       admissibility of evidence, we will only reverse a ruling by the trial
       court upon a showing that it abused its discretion or committed
       an error of law. Thus our standard of review is very narrow. To
       constitute reversible error, an evidentiary ruling must not only be
       erroneous, but also harmful or prejudicial to the complaining
       party.



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Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012), appeal

denied, 62 A.3d 379 (Pa. 2013). “Abuse of discretion is not merely an error

of judgment, but rather where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the action is a

result of partiality, prejudice, bias or ill will.” Commonwealth v. Aikens,

990 A.2d 1181, 1184-85 (Pa. Super. 2010), appeal denied, 4 A.3d 157 (Pa.

2010).

     The trial court admitted the Interview Video as a prior consistent

statement. It did so at the Commonwealth’s request after defense counsel

cross-examined Child extensively with regard to the substance of the

interview depicted in the video.    Rule 613(c) of the Pennsylvania Rules of

Evidence governs this issue:

           (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).

     This Court has addressed Rule 613 as follows:




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            [P]rior consistent statements may be admitted to
      corroborate or rehabilitate the testimony of a witness who has
      been impeached, expressly or impliedly, as having a faulty
      memory, or as having been induced to fabricate the testimony by
      improper motive or influence. Admission of prior consistent
      statements on such grounds is a matter left to the sound
      discretion of the trial court, to be decided in light of the character
      and degree of impeachment.           It is not necessary that the
      impeachment be direct; it may be implied, inferred, or insinuated
      either by cross-examination, presentation of conflicting evidence,
      or a combination of the two.

Commonwealth v. Baker, 963 A.2d 495, 504 (Pa. Super. 2008), appeal

denied, 992 A.2d 885 (Pa. 2010) (quoting Commonwealth v. Hunzer, 868

A.2d 498, 512 (Pa. Super. 2005), appeal denied, 880 A.2d 1237 (Pa. 2005)).

“[T]o be admissible to rebut a charge of improper motive, as is the case here,

the prior consistent statement must have been made before the motive to lie

existed.”   Commonwealth v. Busanet, 54 A.3d 35, 66 (Pa. 2012), cert.

denied, 134 S. Ct. 178 (2013). A prior consistent statement, if admissible at

all, is admissible only as rebuttal or rehabilitation but as not substantive

evidence. Baker, 963 A.2d at 504.

      In Commonwealth v. Hutchinson, 556 A.2d 370, 371 (Pa. 1989), a

jury found the defendant guilty of raping and robbing two women. Upon his

arrest, the defendant told police he was on his way home from his

grandmother’s home and had committed no crime. Id. The defendant alleged

counsel was ineffective for failing to offer the statement into evidence as a

prior consistent statement after the prosecutor impeached the credibility of

defendant and his grandmother. Id.



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      The Hutchinson Court explained that prior consistent statements

ordinarily are inadmissible hearsay, but in rare cases, they are admissible to

rehabilitate a witness against a claim of recent fabrication or corrupt motives.

Id. at 372. The Hutchinson Court stated:

             If one testifies that they did a certain thing at a given time,
      they may be challenged that they said something different before.
      Such is impeachment by a prior contradictory statement.
      Ordinarily, that one has always said the same thing is subsumed
      in their testimony and need not be buttressed by evidence of prior
      consistency, unless that consistency, by allegation of recent
      fabrication is challenged. When challenged, evidence of prior and
      continued consistency may be offered.              Evidence of prior
      consistency, absent such challenge is not required and is
      essentially cumulative and repetitious.           To regularly allow
      testimony of prior consistency may easily become a device to
      merely augment the credibility of witnesses by others.

Hutchinson, 556 A.2d at 372. By the foregoing standards, the Hutchinson

Court held the defendant’s statement inadmissible. The prosecution made no

allegations of recent fabrication during trial, and “the statement in issue was

made after [the defendant’s] arrest: clearly not a time when the effect of the

statement could not have been foreseen.” Id.

      On the other hand, in Baker, this Court affirmed the admission of video

of a child’s forensic interview because the defense insinuated that the

prosecution and/or the victim’s mother induced the victim to fabricate the

testimony.    Baker, 963 A.2d at 505.         The video predated the alleged

inducement of fabricated testimony. Id.

      Appellant argues the trial court erred because this case involves no prior

statements that predate Child’s motive to fabricate. He claims Child fabricated

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her allegations from the beginning because she did not like living with Mother

and Appellant and was upset about her separation from her natural father,

who was incarcerated.           Rule 613 permits prior consistent statements,

Appellant argues, only when they predate the alleged “fabrication, bias,

improper influence or motive, or faulty memory.” Pa.R.E. 613(c)(1). He is

correct in this regard. Busanet, 54 A.3d at 66; see also, Commonwealth

v. Montalvo, 986 A.2d 84, 96 (Pa. 2009) (holding a prior statement

inadmissible where the defendant failed to establish the timing of the

statement).

       Child’s accounts of the incident—in her note to Great Aunt, in her

statement to a DHS caseworker, in the Interview Video, at the preliminary

hearing, and at trial—varied slightly, with regard to whether Appellant

penetrated2 her as well as various other details. Appellant claimed that Child’s

allegations were fabricated from the beginning, and that the Interview Video

therefore served no rehabilitative purpose. The Interview Video, Appellant

argues, was just one of a series of inconsistent accounts of the assault.

       The trial court cited Hunzer in support of its decision. There, the victim

testified that the defendant assaulted her by “sticking his tongue and his finger

in my private area.” Hunzer, 868 A.2d at 506. The Commonwealth, over the



____________________________________________


2  Penetration is an element of IDSI and aggravated indecent assault.
18 Pa.C.S.A. §§ 3101, 3123(c), 3125(a)(7).


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defendant’s objection, elicited the victim’s prior consistent statements through

the testimony of a caseworker. Id. at 511-12. The Hunzer Court wrote:

             Prior consistent statements may […] be considered specially
       relevant when the witness’ status alone is such that his or her
       testimony may be called into question even in the absence of
       express impeachment. […] [J]urors are likely to suspect that
       unimpeached testimony of child witnesses in general, and child
       victims of sexual assaults in particular, may be distorted by
       fantasy, exaggeration, suggestion, or decay of the original
       memory of the event. Prior consistent statements may therefore
       be admitted to corroborate even unimpeached testimony of child
       witnesses, at the trial court’s discretion, because such statements
       were made at a time when the memory was fresher and there was
       less opportunity for the child witness to be effected by the
       decaying impact of time and suggestion.

Id. at 512 (quoting Commonwealth v. Willis, 552 A.2d 682, 691-92 (Pa.

Super. 1988), appeal denied, 559 A.2d 527 (Pa. 1989)).

       The quoted passage seems at odds with the express language of Rule

613, in that it is far more permissive of prior consistent statements, at least

in the context of the sexual assault of a child. Willis, from which the Hunzer

Court quoted, pre-dated the enactment of Rule 613 and the Tender Years Act,

42 Pa.C.S.A. § 5985.13 The Hunzer defendant therefore argued that the trial

court erred in relying on Willis rather than Rule 613.      The Hunzer Court


____________________________________________


3 The Tender Years Act authorizes admission, subject to certain conditions, of
hearsay statements by a child witness describing certain enumerated
offenses, including sex offenses.   42 Pa.C.S.A. § 5985.1.        Statements
admitted under this section are substantive evidence. Commonwealth v.
Barnett, 50 A.3d 176, 187 (Pa. Super. 2012), appeal denied, 63 A.3d 772
(Pa. 2013). The Commonwealth did not rely on the Tender Years Act in this
case.


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concluded that the Commonwealth used prior consistent statements “to rebut

an inference of recent fabrication arising during cross-examination.” Id. at

513. Thus, the Hunzer Court tracked the language of Rule 613, but it did not

engage in a detailed analysis of the timing of the prior consistent statement.

       Instantly, the trial court quoted the portion of Hunzer in which that

Court quoted extensively from Willis.            We conclude the trial court erred,

because its holding contravenes the express language of Rule 613, our

Supreme Court’s analysis of Rule 613 in Hutchinson, and this Court’s analysis

of Rule 613 in Baker.4 While the Interview Video antedated Child’s cross-

examination at trial, it did not antedate the alleged motive to lie, which

Appellant claims arose before she first complained of the assault. Put simply,

Child’s statements in the Interview Video were not “made before” the alleged

fabrication, as Rule 613(c)(1) expressly requires. Moreover, this case does

not involve a lapse in memory, another basis for admitting a prior consistent




____________________________________________


4   We are cognizant that a three-judge panel of this Court is not free to
overrule the decision of a previous three-judge panel. Our result therefore
does not affect the precedential value of Hunzer. As explained in the main
text, the Hunzer Court found a prior consistent statement admissible because
it rebutted an allegation of recent fabrication. Hunzer is therefore in harmony
with Rule 613. Willis, however, is not. We conclude that the Hunzer Court’s
reliance on Willis is dicta, and that Rule 613 and the Tender Years Act have
superseded Willis.




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statement under Rule 613(c)(1).5 Appellant relied on the inconsistencies in

Child’s statements to support his claim that Child was lying.

       The Commonwealth argues that Appellant, in challenging Child’s

credibility based on her varying accounts of the assault, has accused Child of

fabricating her accounts “on an ongoing basis,” and that therefore the

Commonwealth was entitled to introduce the Interview Video, which was

largely consistent with Child’s most incriminating allegations.     Given the

governing precedents discussed above, we do not believe we can construe

Rule 613(c)(1) so broadly. Under the Commonwealth’s analysis, a prosecutor

could, in any case where the defense probes a witness’s inconsistent accounts

of a crime, rely on Rule 613(c)(1) to trumpet the most incriminating version

regardless of whether it antedates the alleged “fabrication, bias, improper

influence or motive, or faulty memory.” Rule 613(c)(1) does not authorize

that approach.

       We also reject the Commonwealth’s argument that the trial court’s

ruling is salvageable under Rule 613(c)(2), which permits admission of a prior

consistent statement that supports the witness’s denial of, or explanation for,



____________________________________________


5  Defense counsel questioned Child about whether she remembered making
different versions of her statement to different people, but, as explained
above, the defense theory was that the many variations in Child’s story were
indicative of fabrication, not memory lapse.       Cf. Commonwealth v.
Swinson, 626 A.2d 627, 632-33 (Pa. Super. 1993) (a witness’s prior written
statement to police was admissible where the witness’s trial testimony differed
from the statement).

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having made a prior inconsistent statement.          Pa.R.E. 613(c)(2).     The

Commonwealth fails to cite any place in the record where Child denied having

made a prior inconsistent statement or explained the inconsistencies in her

testimony. For all of the foregoing reasons, we conclude that the trial court

erred in admitting the Interview Video under Rule 613(c).

      Next, we consider the Commonwealth’s argument that the trial court’s

error was harmless.

              The 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. Its purpose
      is premised on the well-settled proposition that [a] defendant is
      entitled to a fair trial but not a perfect one.

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (quoting

Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981)).

      On this point, we turn for guidance to Busanet. There, the defendant

alleged his appellate counsel was ineffective for failing to challenge the trial

court’s admission of a witness’s prior consistent statement. Busanet, 54 A.3d

at 65. The witness was the Commonwealth’s “key witness,” and he testified

that he was with the defendant when the defendant fired a gun at the victim

in retribution for a robbery. Id. Defense counsel examined the witness on

his motive to obtain favorable treatment from the Commonwealth in his own

case. Id. The Commonwealth introduced a prior consistent statement—the

witness’s written statement that he gave to police 15 days after the crime

occurred.   Id.   Trial counsel objected because the witness already had a

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J-S11026-18


motive to lie at that point, but the trial court overruled the objection. Id. at

66. Appellate counsel did not pursue the issue on direct appeal.

      The Supreme Court found no ineffective assistance of counsel because

the defendant failed to establish prejudice: “Nevertheless, even assuming for

purposes of argument that the trial court erred by admitting [the witness’s]

prior statement under Pa.R.E. 613(e) [sic], we agree with the PCRA court that

such a claim would not have entitled Appellant to relief on appeal[.]” Id. at

67. Trial counsel “meticulously cross examined [the witness] with evidence

of his motive to testify favorably for the Commonwealth[.]” Id. “Further, on

re-cross examination of [the witness], trial counsel painstakingly pointed out

to the jury that when [the witness] made the prior statement, he was

concerned about being charged in connection with the shooting.” Id. The

Supreme Court also noted other “overwhelming” evidence of the defendant’s

guilt, including other witnesses, ballistics evidence, and the defendant’s own

statements. Id. Thus, any error on the part of the trial court or counsel did

not prejudice the defendant in Busanet.

      We find Busanet instructive.        Instantly, defense counsel cross-

examined Child extensively.     Defense counsel brought out testimony that

Appellant penetrated Child with his fingers and tongue. N.T. Trial, 3/11/16,

at 98. In particular, defense counsel cross-examined Child with a transcript

of the Interview Video:




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     Q.    So do you remember telling Ms. Kline that what happened
     was that it started with him rubbing on your butt with his hand
     over your pants?

     A.    Yes.

     Q.    And that then he went inside of your pants with his hand
     and touched your private part?

     A.    Yes.

     Q.    And put his fingers inside of your private part?

     A.    Yes.

     Q.   What you told Ms. Kline is that he did that while your pants
     were still on?

     A.    Yes.

     Q.    And that then after he did that, that that [sic] was when he
     pulled out his private part.

           Do you remember telling Ms. Kline that?

     A.    Yes.

     Q.    And do you remember telling Ms. Kline that after he pulled
     out his private part is when he pulled down your pants?

     A.    Yes.

     Q.    And that, after he pulled down your pants, the next thing
     that happened was that he put his tongue down there?

     A.    Yes.

     Q.    And then you told Ms. Kline that, after you got up and
     started to walk away out of the room, he called you back into the
     room?

     A.    I don’t remember that.

     Q.    You don’t remember saying that?

     A.    No.



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     Q.   Okay. All right. Well, you didn’t tell Ms. Kline that he called
     you back and kissed your private part again; right?

     A.    No, I don’t remember.

     Q.    And you told Ms. Kline – you did tell Ms. Kline that he tried
     to get you to touch his private part, right?

     A.    I don’t remember.

     Q.    And do you remember telling – do you remember Ms. Kline
     asking you – do you remember her asking you if he tried to make
     you or if he made you touch his private part?

     A.    No.

     Q.     Okay. Do you remember her asking you how many times
     he tried to make you touch his private part?

     A.    No.

     Q.    Do you remember telling her that he made you touch it
     twice?

     A.    No.

     Q.    Okay. Do you remember her asking you if you saw his
     private part?

     A.    Yes.

     Q.     Okay. And do you remember telling her that you couldn’t
     really see it because it was so fast?

     A.    Yes.

     Q.    All right. And you couldn’t tell her what it looked like?

     A.    Yes.

     Q.    All right. And you couldn’t tell her what it looked like at all?

     A.    Yes.

     Q.    Yes, you can tell us?

     A.    No, no. I’m saying, yes, I couldn’t tell you.


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     Q.    Thank you. But do you remember telling Ms. Kline that he
     took his private part out before he put his tongue on your private
     part, not after; right?

     A.    Yes.

     Q.    And Ms. Kline was the first person who you told about him
     putting his fingers inside of your private part; correct?

     A.    Yes.

     Q.    You didn’t tell [Great Aunt] about that part; right?

     A.    No.

                                    [***]

     Q.     So you agree with me that it doesn’t say in the note that he
     put any part of his fingers or his hand inside of your private part;
     right?

     A     Yes.

     Q.    And you didn’t tell that to the police officer or to anybody at
     the hospital either; right?

     A.    I don’t remember.

     Q.    Okay. But do you agree that Ms. Kline was the first person
     you told that to; right?

     A.    Yes.

     Q.     Alright. And when Ms. Kline was asking you about the part
     of this when he pulled out his private part, she also asked you if
     he did anything with his private part?

           Do you remember that?

     A.    No.

     Q.     Okay. Do you remember telling her that he sat there and
     didn’t do anything with it?

     A.    No.




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Id. at 108-113. In essence, defense counsel chose to cross-examine Child on

all of the pertinent portions of the Interview Video transcript, and did so before

the Commonwealth moved to play the Interview Video for the jury. The actual

video itself was therefore cumulative and, in our view, harmless.            See

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (concluding that

erroneous admission of cumulative evidence was harmless), cert. denied,

569 U.S. 972 (2013).

      In addition, the Commonwealth introduced a text message Appellant

sent to Mother shortly after the assault. It said, “I’m so, so, so fucking sorry.

I can’t breathe.”   N.T. Trial, 3/14/2016, at 63.     Mother also recorded two

phone conversations she had with Appellant shortly after the assault, in which

he made incriminating statements. Id. at 63-64. Appellant also asked Mother

to lie to police and tell them he was teaching Child sex education. Id. at 69.

      Appellant, in his brief, does not explain how the Interview Video

prejudiced him.     He notes that the jury asked for a replay of Appellant’s

recorded statement and the Interview Video (the trial court directed the jurors

to rely on their recollections of the video). The fact remains, however, that

defense counsel introduced the incriminating facts from the Kline interview

during cross-examination of Child. The jury’s request to see the Interview

Video a second time does not change the fact that it was cumulative of

evidence already in the record.




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       Ultimately, this case turned on Child’s credibility.    Appellant cannot

explain how the admission of the Video Interview, though erroneous, did

anything to augment or bolster Child’s credibility, inasmuch as defense

counsel cross-examined Child extensively on her interview with Michelle Kline.

In addition, the jury heard Appellant’s own damaging statements. We believe

the trial court’s error was harmless beyond a reasonable doubt.

       Furthermore, we would conclude that the interview was admissible

under Pa.R.E. 106:6

             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.

              Comment: This rule is identical to F.R.E. 106. A similar
       principle is expressed in Pa.R.C.P. No. 4020(a)(4), which states:
       “If only part of a deposition is offered in evidence by a party, any
       other party may require the offering party to introduce all of it
       which is relevant to the part introduced, and any party may
       introduce any other parts.”

             The purpose of Pa.R.E. 106 is to give the adverse party an
       opportunity to correct a misleading impression that may be
       created by the use of a part of a writing or recorded statement
       that may be taken out of context. This rule gives the adverse
       party the opportunity to correct the misleading impression at the
       time that the evidence is introduced. The trial court has discretion
       to decide whether other parts, or other writings or recorded
       statements,     ought      in   fairness   to     be    considered
       contemporaneously with the proffered part.


____________________________________________


6 The parties did not brief Rule 106, but this Court is free to affirm the trial
court on any valid basis. Commonwealth v. Janda, 14 A.3d 147, 161 n.8
(Pa. Super. 2011).

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Pa.R.E. 106. Thus, where a party introduces a portion of a writing or recorded

statement, Rule 106 permits the adverse party to introduce the remainder so

that the fact finder can consider the evidence in context. Commonwealth v.

Bryant, 57 A.3d 191, 195 (Pa. Super. 2012); Commonwealth v. Passmore,

857 A.2d 697, 712 (Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa.

2005). The burden is on the adverse party to explain the relevance of the

remainder of the recording. Bryant, 57 A.3d at 196.

      As explained above, defense counsel cross-examined Child extensively

about the interview before the Commonwealth moved to introduce the

Interview Video. The prosecutor argued:

            And the fact that [defense] counsel, during her cross,
      explicitly went line by line towards what she’s transcribed that
      happened at the PCA video, more than anything, more than any
      other argument, that’s really what makes it important for the jury
      to view the video. She’s gone line by line.

N.T. Trial, 3/11/16, at 137.    This argument, though offered in support of

admitting the Interview Video under Rule 613, supports its admission under

Rule 106. Further, the prosecutor limited her request to the approximately

thirteen minutes during which Child discussed the alleged assault. Id. at 138.

Given the extent to which defense counsel relied on the Interview Video during

her cross-examination of the victim, the prosecution was entitled to introduce

Child’s entire account of the assault in order to provide full context.

      For all of the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/18




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