J-S40035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

EYADE KOMADEGA KOUBIDINA

                         Appellant                 No. 2273 MDA 2013


            Appeal from the Judgment of Sentence July 15, 2013
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0006183-2011


BEFORE: BENDER, P.J.E., BOWES, J. and PANELLA, J.

MEMORANDUM BY PANELLA, J.:                       FILED AUGUST 28, 2014

       Appellant, Eyade Komadega Koubidina, appeals from the judgment of

sentence entered on July 15, 2013, in the Court of Common Pleas of York

County. After careful review, we affirm.

       On July 10, 2011, at approximately 5:00 PM, the victim, eleven-year-

                                                 See N.T., Trial, 4/1/13, at

131-

answered. See id

permitted A.D. to wait for her friends in the living room. Id. A.D. occupied

the time by playing a video game while Koubidina was on the computer. See

id

ups                        Id., at 133-134.
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     Id., at 135. A.D. recalled that she was wearing a strapless dress that



                       Id. A.D. laid back on the bed and Koubidina was



                       Id., at 136. A.D. testified that Koubidina pulled her

                                                           Id. According to



                                                   Id., at 137. A.D. stated



Id

                 Id

                                                                        Id.



                                    Id., at 139.

     About an hour later, while walking to the grocery store with her

seventeen-year-old cousin, Jeremy McDonald and her younger brother, A.D.



See id., at 139-

mother. See id

                                                                     Id., at

185. Koubidina denied any wrongdoing. See id

                                                            Id., at 186. In

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the emergency department at the hospital, Natalie Billings, the Sexual

Assault Forensic Examiner (SAFE) nurse practitioner examined A.D. See id.,



swab for DNA. See id., at 198-200. Officer Mike Mendez of the West York

Police Department was dispatched to York Hospital for a report of a sexual

assault victim. See id., at 215. Officer Mendez spoke with the SAFE nurse

and sent the rape kit to the Pennsylvania State Police Crime Lab for analysis.

See id                                                        dvocacy Center.

See id

                                                                         Id., at

234-              -

sample from [Koubidina]     Id., at 236.

       Koubidina was subsequently charged with one count of aggravated

indecent assault, involuntary deviate sexual intercourse (IDSI), indecent

assault, corruption of minors and unlawful contact with minor (sexual

offenses). Following a jury trial on April 1, 2013, Koubidina was found guilty

on all counts. Thereafter, on July 15, 2013, the trial court sentenced

Koubidina to the mandatory sentence of 10-

IDSI. Counts 1 and 3 merged with the IDSI for sentencing purposes.



probation on Count 4, corruption of minors. Post-sentence motions were

filed and subsequently denied. This timely appeal followed.

       On appeal, Koubidina raises the following issue for our review:

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      1. Whether the trial court abused its discretion in     permitting
         testimony of prior consistent statements by the      victim for
         purposes of rehabilitation pursuant to Pa.R.E. 613   when such
         statements were not used to rebut a claim            of recent
         fabric
         contradictory trial testimony?



                                                           -settled that

      [a]dmission of evidence is within the sound discretion of the trial
      court and will be reversed only where the court clearly abused
      that discretion. Proper judicial discretion conforms to the law and
      is based on facts and circumstances before the court. An abuse
      of discretion is not a mere error of judgment but, rather,
      involves partiality, prejudice, bias, ill-will, or manifest
      unreasonableness.

Commonwealth v. Hardy, 918 A.2d 766, 776 (Pa. Super. 2007) (citations

omitted).

      In pertinent part, Pa.R.E. 613 provides:

      (c) Witness's Prior Consistent Statement to Rehabilitate.


      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



Pa.R.E. 613(c)(1)-(2).



received for rehabilitation


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Pa.R.E. 613, Comment

specifically provides in subsection (c)(1) that the consistent statement must

have been made before                               Id. (emphasis supplied).

     Because [prior consistent] statements are hearsay, their use as

     testimony   is   severely   limited;   and   such   statements   are

     testimony is recently fabricated or a result of corrupt motives.
     Furthermore, evidence of such statements is admissible only in
     rebuttal and then only for the purpose of showing that that
     which the witness now testifies to has not been recently
     fabricated. As a further restriction upon admissibility the
     statement must have been made at a time before its ultimate
     effect on the question trying could have been foreseen. In more
     recent times this court has interpreted this caveat to mean
     before any corrupt motive has arisen.

     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 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.

Commonwealth v. Hutchinson, 556 A.2d 370, 372 (Pa. 1980) (citations

and internal quotation marks omitted).

     At the time of trial, at the conclusion of Commonwealth witness




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under Pa.R.E. 613 on the record. The following exchange took place at

sidebar:

     ATTORNEY KOPE: I was just going to ask to approach. I am just
     going to lodge an objection under Rule 613 of the Rules of
     Evidence that is for prior consistent statements. I think this is
     just getting to the point it is just bolstering.

     THE COURT: If that is what the evidence is going to be, this is
     the first evidence that would be - - well, this would be the
     second evidence of it.

     ATTORNEY KOPE: Okay. And then the other.

     THE COURT: So why is it objectionable?

     ATTORNEY KOPE: Under Rule 613 you are usually not allowed to
     bring a prior

     THE COURT: One moment. Okay, what is the problem?



     unless, of course, we are charging her with fabrication?

     THE COURT: That is
     defense of fabrication.

     ATTORNEY KOPE: We are conceding that.

     THE COURT: What are you conceding? You have not conceding
     [sic] anything.

     ATTORNEY KOPE: We are attacking her fabrication.

     THE COURT: You are claiming that she fabricated this story?

     ATTORNEY KOPE: Yes.

     THE COURT: So I would think that a prior consistent statement
     corroborating her story would be particularly important and
     relevant.

     ATTORNEY KOPE: We agree it is just the number of them to a
     point we think it becomes bolstering after putting on some.



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       THE COURT: Do you have theory for opposition that more than
       one corroboration of a prior

       ATTORNEY KOPE: I have no legal authority.

       THE COURT: Okay. Overruled.

N.T., Jury Trial, 4/1/13, at 180-181.

       While Koubidina raised an objection under Pa.R.E. 613, Rule 613 is

inapplicable here. As noted, Rule 613 is used for rehabilitation purposes

only, not as substantive evidence. It is evident from the notes of testimony

that the Commonwealth was not seeking

prior consistent statements to rebut an express or implied charge of

fabrication   in   an   effort   to   rehabilitate   the   credibility   of   A.D.   after

impeachment.

       Rather, it appears as if Koubidina is actually challenging the

presentation of cumulative evidence by the Commonwealth regarding

statements made by A.D. to her cousin, Jeremy McDonald and her mother,

Tammy Dunn. From the sidebar conference, it is clear that Koubidina is

seeking to preclude the Commonwealth witness testimony, which he claims

                                                     See id., at 181. This is plainly

not a Rule 613 issue, but an evidentiary challenge pursuant to Rule 403.1

____________________________________________


1
       Rule 403. Excluding Relevant Evidence for Prejudice,
       Confusion, Waste of Time, or Other Reasons

       The court may exclude relevant evidence if its probative value is
       outweighed by a danger of one or more of the following: unfair
       prejudice, confusing the issues, misleading the jury, undue
(Footnote Continued Next Page)


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Koubinda, however, never objected on this basis. As our Supreme Court

explained in Commonwealth v. Baumhammers, 960 A.2d 59 (Pa. 2008):

      [I]t is axiomatic that issues are preserved         when objections are
      made timely to the error or offense. See            Commonwealth v.
      May
      contemporaneous objectio
      waived); and Commonwealth v. Bruce,                 916 A.2d 657, 671
      (Pa. Super. 2007), appeal denied, 932               A.2d 74 (Pa. 2007)



Id., at 73. There is nothing in the record to indicate Koubidina asserted an

allegation of error under Pa.R.E. 403. As such, we are constrained to find

any issue related to the presentation of cumulative evidence waived.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2014


                       _______________________
(Footnote Continued)

      delay, wasting         time,    or   needlessly   presenting   cumulative
      evidence.

Pa.R.E. 403.




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