J-S55011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :   IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                     Appellee                   :
             v.                                 :
                                                :
DAVID ALLEN BILLE,                              :
                                                :
                     Appellant                  :   No. 1962 WDA 2014

             Appeal from the Judgment of Sentence, October 28, 2014,
                   in the Court of Common Pleas of Erie County,
                Criminal Division, at No: CP-25-CR-0002982-2013

BEFORE:           FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED NOVEMBER 18, 2015

       I agree that the OCY report was inadmissible in this case. However, I

disagree with the rationale offered by the learned Majority and agree with

some of the rationale offered by the trial court.              I offer the following

analysis.

       Prior to trial, counsel for Appellant sought the trial court’s ruling in

limine on the admissibility of the report from OCY which concluded that the

allegations at issue in this case were unfounded. The trial court concluded

that   the    admission     of   this   testimony   was   “basically   vouching”   and

“irrelevant.” N.T., 6/19/2014, at 8. The trial court offered support for this

conclusion by stating that “the credibility assessment is to be made by the

jury in this trial on this testimony here. What someone else thought at an

earlier time if it went to credibility just is a distraction, so I’m not going to

allow it.” Id.

*Retired Senior Judge assigned to the Superior Court.
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     We have long held that [a]ny analysis of the admissibility of a
     particular type of evidence must start with a threshold inquiry as
     to its relevance and probative value. Relevant evidence is
     evidence that in some degree advances the inquiry…. Further,
     [i]t must be determined first if the inference sought to be raised
     by the evidence bears upon a matter in issue in the case and,
     second, whether the evidence renders the desired inferences
     more probable than it would be without evidence.

Commonwealth v. Dunkle, 602 A.2d 830, 34 (Pa. 1992) (internal citations

and quotations omitted).

     Instantly, the OCY report was clearly relevant as it offered an opinion

on the ultimate issue in this case, whether Appellant sexually abused S.S.

Accordingly, we disagree with both the trial court and the Majority that this

report was inadmissible because it was irrelevant.

     However, I agree with the trial court that this report was inadmissible

because “the credibility assessment is to be made by the jury.” N.T.,

6/19/2014, at 8.    Whether we call this improper bolstering, vouching, or

something else altogether, this testimony is inadmissible.

     “Improper bolstering or vouching for a government witness occurs

where the prosecutor assures the jury that the witness is credible, and such

assurance is based on either the prosecutor’s personal knowledge or other

information not contained in the record.” Commonwealth v. Cousar, 928

A.2d 1025, 1041 (Pa. 2007).       “Of course, improper commentary on a

witness’ credibility may be achieved through means other than the



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prosecutor’s own statements, such as eliciting improper comments from a

Commonwealth witness[.]” Commonwealth v. Tedford, 960 A.2d 1, 32

(Pa. 2008).

        In Commonwealth v. Loner, 609 A.2d 1376 (Pa. Super. 1992), this

Court held that “[t]he law is clear that the determination of the veracity of a

witness is reserved exclusively for the jury. As such, testimony, especially

that of an expert, which serves to bolster the veracity of a child sexual abuse

victim impermissibly infringes upon the province of the jury.” Id. (citations

omitted).1

        Because Appellant sought to offer testimony which would comment on

the veracity of a witness, it impermissibly infringes on the province of the

jury.    Accordingly, the trial court did not err in finding the OCY report

inadmissible.




1
  In the instant matter, the testimony sought to be introduced would
undermine the veracity of the victim. However, that makes no difference in
the analysis.


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