J-A23008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ROBERT DELAWRENCE WILLIAMS              :
                                         :
                   Appellant             :   No. 926 WDA 2017

          Appeal from the Judgment of Sentence November 9, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0001710-2016


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 1, 2019

      Robert Delawrence Williams appeals from the judgment of sentence of

seven to fourteen years incarceration imposed following his jury trial

convictions for unlawful contact with a minor, corruption of minors, and

indecent assault. We vacate and remand for a new trial.

      The victim, J.W., is Appellant’s biological daughter.   Appellant began

abusing J.W. when she was fourteen years old. J.W. testified to two particular

incidents. The first occurred at the home of J.W.’s sister, where J.W. was

living. Appellant came home from work at approximately 11:00 p.m., and

joined J.W. while she was watching a movie. Appellant unhooked her bra and

touched her breasts. He also placed his hand on her vagina. J.W. punched

Appellant, who thereafter left the room. A similar incident occurred at the

home of J.W.’s mother.
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        J.W. eventually disclosed the abuse to her uncle, who in turn encouraged

her to tell an authority figure. J.W. told a security guard, which resulted in a

police report, filed June 29, 2015. J.W. participated in a forensic interview

with a specialist at Children’s Hospital, which took place on September 14,

2015.

        Appellant was charged with one count each of rape, aggravated indecent

assault, incest, unlawful contact with a minor, corruption of minors, and

indecent assault. Appellant elected to proceed pro se. At trial, Lieutenant

Ralph Johnson was called following J.W.’s testimony, and the video of J.W.’s

forensic interview was played to the jury over Appellant’s objection. Appellant

then asked, “Will I have an opportunity to recross-examine the child?” The

trial court said, “No.” N.T., 8/22-24/16, at 78.

        At the conclusion of trial, the jury convicted Appellant of unlawful

contact with a minor, corruption of minors, and indecent assault.       He was

acquitted at the remaining charges. Appellant was originally sentenced to ten

to twenty years incarceration. Appellant timely appealed,1 and presents the

following claims for our review:



____________________________________________


1  At the conclusion of sentencing, Appellant requested an attorney for
purposes of appeal. The trial court orally granted that request but did not
enter a written order. Appellant thereafter filed timely pro se motions.
Counsel was appointed at some point and filed a request to file post-sentence
motions nunc pro tunc, which the trial court granted. Counseled motions were
filed, and the trial court agreed that Appellant’s originally imposed sentence



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       I.     Did the trial court abuse its discretion in admitting the video
              of the forensic interview with [J.W.] when that video was
              inadmissible hearsay used for the truth of the matter
              asserted?

       II.    Did the trial court abuse its discretion in denying a pre-trial
              motion arguing that [J.W.]’s failure to testify at the
              preliminary hearing violated [Appellant]’s due process rights
              and Pa.R.Crim.P. 542(C)?

Appellant’s brief at 6.

       We hold that the first issue warrants relief.2 Our standard of review is

for an abuse of discretion. “The admissibility of evidence is at the discretion

of the trial court and only a showing of an abuse of that discretion, and

resulting prejudice, constitutes reversible error.” Commonwealth v. Shull,

148 A.3d 820, 845 (Pa.Super. 2016) (citation omitted). The misapplication of

the law constitutes an abuse of discretion.       “An abuse of discretion is not

merely an error of judgment, but is rather the overriding or misapplication of

the law[.]” Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).




____________________________________________


of ten to twenty years was illegal. Appellant filed a new set of post-sentence
motions, and timely appealed from their denial.

The caption reflects an appeal from the original judgment of sentence, not the
resentencing. Since Appellant is entitled to a new trial, the caption remains
as-is.

2Appellant’s second claim is foreclosed by Commonwealth v. McClelland,
165 A.3d 19 (Pa.Super. 2017), appeal granted, 179 A.3d 2 (Pa. 2018).
Appellant “preserves the issue . . . in the event that the Supreme Court
overrules McClelland.” Appellant’s brief at 35.

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      The trial judge justified the introduction of the video statement per

Pa.R.E. 803.1. The court reasoned:

      Our Superior Court specifically addressed the admissibility of
      forensic interviews in Commonwealth v. Shelton, 170 A.3d 549
      (Pa.Super. 2017). In Shelton, the Court held that a video
      recording of a forensic interview was admissible at trial under the
      recorded recollection exception to the hearsay rule. [Id. at] 553[.]

      Here, the forensic interview took place a few months after she
      reported the assaults – and almost a year before the trial took
      place. The video of the interview was significantly closer in time
      to the abuse than the trial, when the events were fresher in her
      memory. Though [J.W.] did not testify that she had forgotten the
      details of the assaults, [Appellant]’s pro se cross-examination was
      scattered and combative. Given [J.W]’s reluctance to subject
      herself to questioning by [Appellant] (she did not attend the
      Preliminary Hearing due to emotional distress issues and
      absconded from her foster home the night before trial was
      originally scheduled to begin), the forensic interview was useful to
      the jury in that it was her complete recitation of the events
      effectuated by a neutral questioner. Under these circumstances,
      akin to the facts of Shelton, this [c]ourt did not err in admitting
      the video of the forensic interview into evidence and allowing it to
      be played to the jury.

Trial Court Opinion, 12/4/17, at 6-7.

      The Commonwealth agrees with Appellant that the evidence was not

admissible under that analysis, and we concur in that conclusion. Introduction

of a prior recorded recollection is permitted as an exception to hearsay,

provided the following criteria are established:

      The following statements are not excluded by the rule against
      hearsay if the declarant testifies and is subject to cross-
      examination about the prior statement:

      ....




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     (3)   Recorded   Recollection  of   Declarant-Witness. A
     memorandum or record made or adopted by a declarant-witness
     that:

           (A) is on a matter the declarant-witness once knew
           about but now cannot recall well enough to testify fully
           and accurately;

           (B) was made or adopted by the declarant-witness
           when the matter was fresh in his or her memory; and

           (C) the declarant-witness testifies accurately reflects
           his or her knowledge at the time when made.

     If admitted, the memorandum or record may be read into
     evidence and received as an exhibit, but may be shown to the jury
     only in exceptional circumstances or when offered by an adverse
     party.

Pa.R.E. 803.1.

     There are several reasons that the video fails to satisfy this exception,

but it suffices to pick one: J.W. was not subject to cross-examination about

the prior statement. Thus, even if all remaining elements were met—and they

were not—the trial court erred by failing to permit cross-examination,

something Appellant explicitly requested. Therefore, the trial court erred in

admitting the evidence under this hearsay exception.

     We now turn to whether the evidence could be properly admitted via an

alternate theory.   The Commonwealth invokes the “right for any reason”

doctrine, arguing that the evidence was separately and independently

admissible under Pa.R.E. 613, which permits the introduction of prior

consistent statements for rehabilitative purposes. “According to the ‘right-

for-any-reason’ doctrine, appellate courts are not limited by the specific

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grounds raised by the parties or invoked by the court under review, but may

affirm for any valid reason appearing as of record.” Commonwealth v. Fant,

146 A.3d 1254, 1265 n.13 (Pa. 2016).

      We hold that even if this Court could invoke the right for any reason

doctrine under these circumstances, Rule 613 does not apply. The text states:

      (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).

      The Commonwealth argues that the interview was properly admitted

under subsection (c)(1). “Appellant’s questions insinuated that J.W. had an

improper motive and she fabricated allegations against Appellant. Her prior

consistent statement – i.e., the forensic interview – was properly admitted to

corroborate her testimony that she did not make up allegations against

Appellant and was not retaliating[.]”       Commonwealth’s brief at 19.       We

disagree.




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      For the sake of completeness, we note that in Commonwealth v.

Willis, 552 A.2d 682 (Pa.Super. 1988) (en banc), our Court suggested, but

did not hold, that admitting prior consistent statements to bolster the

testimony of a child witness in sexual cases is per se permissible.      Willis

analyzed the issue as one involving an intersection of hearsay and relevancy.

The Court reasoned that prior consistent statements are not hearsay because

they are not offered for their truth, and, while relevancy principles would

usually bar such testimony, the specific considerations involved in child sexual

abuse cases justify their introduction.

      The Commonwealth does not belabor this corroboration theory, but the

trial court alludes to it by quoting language used in Willis. “The video of the

interview was significantly closer in time to the abuse than the trial, when the

events were fresher in her memory.” Trial Court Opinion, at 12/4/17, at 6.

To the extent we are permitted to examine this conceivable basis,

Commonwealth v. Bond, 190 A.3d 664 (Pa.Super. 2018), discredits it.

Bond thoroughly explains why the view set forth by our prior cases regarding

the introduction of prior consistent statements for purely corroborative

purposes is at odds with the express language of Rule 613. See id. at 667-

70. Bond observed that Willis pre-dated the enactment of Rule 613 and the

Tender Years Act. Thus, Willis has been superseded. Id. at 670 n.4. Hence,

the evidence was not admissible merely because it corroborated J.W.’s

testimony.


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      We now address whether the video was admissible for rehabilitative

purposes. Resolving that inquiry requires an examination of the timing of the

statements in light of the impeachment. A simple way to determine whether

the prior statement predated the alleged fabrication is to assume that the jury

credits the theory insinuated by the impeachment. By way of illustration, we

shall apply this framework to Commonwealth v. Baker, 963 A.2d 495

(Pa.Super. 2008), which the Commonwealth cites as justification for the trial

court’s ruling.

      In Baker, we upheld the admission of a DVD of a child victim's interview

with a doctor per Rule 613. The Commonwealth asked for introduction of the

video on the grounds that “during the cross-examination of seven[-]year

[-]old J.B., she was asked questions which the prosecution believed suggested

that J.B. had been induced to fabricate her testimony.” Id. at 504. Defense

counsel insinuated that J.B. was told what to say in court, and the trial judge

agreed with the prosecutor's view that “[counsel] suggested that J.B. had

been induced to fabricate her testimony.” Id. at 505. The trial court admitted

the interview, and we affirmed.

      Thus, two statements were at issue in Baker: (1) the victim’s

testimony, given at trial in November of 2006; and (2) the prior statement

given on December 29, 2005. Baker’s attorney suggested during questioning

that the child’s mother and prosecutor met with the child shortly before the

trial and as a result induced the trial testimony.    Assuming that the jury


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accepted that this theory was true, there was a risk that the jury would

discredit the child’s testimony as the product of that inducement. May the

Commonwealth introduce the forensic interview under Rule 613 in response?

Yes.   That the jury could believe that the victim was fabricating the trial

testimony due to the actions of her mother and the prosecutor warranted

informing the jury that the victim gave statements that were consistent with

the trial testimony prior to that alleged interference. Therefore, the prior

statement served a rehabilitative purpose, as the forensic interview undercut

the idea that the testimony at trial was the product of the purported coercion,

which happened after the forensic interview was recorded.3 Thus, Baker is

consistent with Rule 613.

       Applying this same framework to the instant case demonstrates why

Rule 613 cannot justify admission of the evidence.        We agree with the

Commonwealth that Appellant suggested, implicitly and explicitly, that J.W.

fabricated the allegations, as set forth in its brief:

       Through his cross-examination questioning, Appellant sought to
       imply that J.W. fabricated the events and had an improper motive
       in making the allegations. During cross-examination, the victim
       recounted an incident where she "got choked by my mom for
       [Appellant]." She accused Appellant of allowing J.W.'s mother to
       assault and choke her. J.W. also spoke of an April 2015 incident
       where Appellant hit her and she hit him back. J.W. acknowledged
       that for portions of December, January, and February she was with
____________________________________________


3 Obviously, rehabilitative statements by their nature tend to corroborate the
testimony. But the fact that corroboration is an inevitable byproduct of
rehabilitation is no justification for dispensing with the rehabilitation
requirement.

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     her grandmother. Furthermore, she admitted that in both May and
     June of 2015, CYF turned J.W. over to Appellant after incidents
     with her mother. J.W. had opportunities to tell the police and CYF
     what was occurring with Appellant, and she did not do so. This
     forced the prosecutor to elicit testimony from J.W. on re -direct
     examination that she was afraid to tell the police or CYF about
     Appellant. Additionally, J.W. said she could not remember the
     specific dates of the assaults because they happened frequently.
     J.W. testified that she was accusing Appellant of inappropriate
     sexual acts because they happened and not because she wanted
     to retaliate against Appellant for being physically assaulted and
     going into placement. On re-cross examination, J.W. admitted
     that CYF came to her mother's house five times and she never
     made allegations about Appellant. Despite the fact that CYF was
     responding to incidents with J.W.'s mother and not Appellant, J.W.
     concluded her testimony with "[CYF] got me out of that house.
     They put me in a safe place that I ran from because of you."

     Appellant's questions insinuated that J.W. had an improper motive
     and she fabricated allegations against Appellant. Her prior
     consistent statement - i.e., the forensic interview - was properly
     admitted to corroborate her testimony that she did not make up
     allegations against Appellant and was not retaliating for family
     disputes and/or being removed by CYF from her mother's home.
     See Commonwealth v. Baker, 963 A.2d 495, 502-04 (Pa.Super.
     2008), appeal denied, 992 A.2d 885 (Pa. 2010).

Commonwealth’s brief, at 18-20.

     This argument fails to properly account for the timing inquiry under the

framework set forth supra. Assume that the jury credited Appellant’s theory

as true, and therefore believed that J.W. fabricated the allegations against

Appellant due to some combination of: Appellant’s failures to stop J.W.’s

mother from abusing J.W.; the April 2015 incident where Appellant hit J.W.;

or that CYS placed J.W. with Appellant after multiple incidents with her

mother. May the Commonwealth introduce the forensic interview as a prior

consistent statement? Unlike Baker, the answer is no. J.W.’s statements,

                                   - 10 -
J-A23008-18


relayed to a forensic interviewer, did not antedate any of the listed events.

In fact, her statements to the interviewer would, under Appellant’s theory of

fabrication, be consistent with the alleged fabrication because it would further

the purported purpose of falsely implicating Appellant.4 The Commonwealth’s

rationale differs little from the “ongoing fabrication” theory flatly rejected by

Bond:

       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.

Bond, supra at 670.




____________________________________________


4 We acknowledge that timing is not the only consideration, and the identity
of the listener is a relevant consideration. The facts, as stated supra, indicated
that J.W. disclosed the abuse to her uncle, who in turn encouraged J.W. to
report the matter to an authority figure.

Clearly, the alleged motivations for the disclosure may remain the same as
applied to J.W.’s uncle. But the outcome may have been different if the
Commonwealth had sought to call the uncle and introduce whatever had been
said to him. Here, Appellant’s theory was that J.W. disclosed the allegations
for the purposes of criminal liability, and the statements given to the forensic
interviewer do not rehabilitate the trial testimony.

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      For the foregoing reasons, we find that Rule 613 cannot salvage the trial

court’s ruling.   As such, we now address whether the error was harmless

beyond a reasonable doubt.

      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. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (quoting

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)). Furthermore:

      An error will be deemed harmless where the appellate court
      concludes beyond a reasonable doubt that the error could not
      have contributed to the verdict. If there is a reasonable possibility
      that the error may have contributed to the verdict, it is not
      harmless. The burden of establishing that the error was harmless
      rests upon the Commonwealth.

Id. at 528–29 (citations omitted).

      The Commonwealth invokes the second possibility, arguing that while

the interview discussed matters not testified to, that evidence actually

benefitted Appellant.    Additionally, the Commonwealth argues that the

remaining portions were merely cumulative of J.W.’s properly-introduced trial

testimony.

      Appellant benefited by the admission of the video in that the
      victim retreated from some of her initial allegations. At trial, the
      victim did not testify that Appellant utilized his penis during any
      of the assaults; she testified that he touched her chest and vaginal
      region with his hands. Whereas, in the forensic interview, J.W.
      stated that on one occasion, Appellant tried to put his "dick" in her

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       but she felt it soft against her leg. The jury knew how to resolve
       the discrepancy between the forensic interview and the trial
       testimony as it acquitted Appellant of the most serious charges -
       Rape, Aggravated Indecent Assault, and Incest of a Minor. The
       rest of J.W.'s testimony was substantially similar to what she said
       in the forensic interview. Thus, the admission of video provided
       no more substantive information than that given by J.W. during
       her testimony; it was cumulative. The prosecutor never
       specifically mentioned the forensic video during the closing
       remarks. All she said was: "kids who make up things can't stick
       with a story over and over again. She has been consistent."
       Hence, it does not appear that admission of the video bolstered
       J.W.'s testimony or credibility.

Commonwealth’s brief at 22-23 (citations and footnote omitted).

       Perhaps this logic would justify a finding of harmless error if those were

the only matters disclosed on the tape.5 However, the Commonwealth, to its

credit, acknowledges that the forensic interview contained statements that

discussed matters far exceeding the scope of J.W.’s testimony.

       Cognizant of its duty of candor to this Court, the Commonwealth
       acknowledges that Appellant did not have the opportunity to
       cross-examine the victim about her forensic interview, and the
       interview contained some seemingly inadmissible information. In
       the interview, J.W. claimed: Appellant did similar things to her
       cousin Angie and [J.W.’s] sister, Appellant went to jail for doing
       things to Angie, and Appellant smoked marijuana around her and
       acted "crazy" and "psycho."

Id. at 23-24 (citations omitted).



____________________________________________


5 We are highly skeptical of the Commonwealth’s argument that there is no
error because Appellant benefited from the evidence that he sought to
preclude. Even if the prosecutor’s mistaken view of the law was ultimately
helpful—a doubtful proposition—the prosecution’s intent was obviously not
altruistic. The essence of our adversarial system is that the parties decide
how to present their cases within the confines of the law.

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     This evidence was clearly inadmissible, and its prejudicial effect obvious.

The jury heard, unbidden and unchallenged, that Appellant was previously

incarcerated.   Worse yet, the jury heard that Appellant went to prison for

doing “similar things” to J.W.’s cousin and J.W.’s sister. That evidence was

highly inflammatory and prejudicial. For this reason alone, we hold that the

Commonwealth failed to meet its burden of establishing that the error was

harmless beyond a reasonable doubt.

     The Commonwealth’s response to this is that Appellant cross-examined

Lieutenant Johnson, whom the Commonwealth used to introduce the tape into

evidence, about these matters. We quote its argument in that regard:

     When this Court examines the certified record, it will find that
     Appellant rebutted these statements and actually proved some of
     them to be not true. He elicited testimony that Lieutenant Johnson
     never interviewed anyone J.W. mentioned in the forensic interview
     or her family members. Through the following cross-examination
     of Lieutenant Johnson, the jury also learned that Appellant was
     never arrested or imprisoned for committing sexual crimes against
     other children:

     Q. The other question I have for you, Detective, is at any time in
     your investigation did you - from your experience as a sexual
     assault investigator, if an individual had, let's say, multiple
     children, do you stop there or do you investigate further? I'm just
     questioning.

     A. During the investigation if there is any evidence to prove or to
     substantiate that other family members of the victim became
     victims, yes, we would investigate that. But there was no
     disclosure made about any other persons or any other reports filed
     about any other persons being victimized by you.

     Q. We just watched the child articulate this and that and that and
     that the father went to jail for this and that. We just watched it,
     just now.

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     A. Yes.

     Q. So the question I have: Why wasn't a thorough investigation
     done with respect to what she said?

     A. Because we were investigating the - you seen the forensic. We
     were investigating the allegations that were made by [J.W.]
     against you, no other family member.

     Q. But she mentioned them. Wouldn't you investigate –

     A. She didn't mention any other family member being victimized.

     Q. You watched the video. It articulates - it says [Appellant] did
     this and [Appellant] did that and [Appellant] went to jail for that.
     It says it in the video.

     A. You already served time for that, so why would I
     reinvestigate that?

     Q. Due to the fact of your investigation where is there any type of
     record that [Appellant] went to prison?

     A. There is none. You are saying that your daughter said on the
     video that you went to prison. Those are your words. You went to
     prison for the things that you are claiming that may have
     happened to other kids. There was no reports filed about any other
     people other than [J.W.] from what you did to her. No other kids.
     No other siblings. No other relatives. No neighborhood kids. Just
     [J.W.], what you did to her.

Id. at 24-25 (citations omitted, emphasis added).

     We disagree with the Commonwealth’s interpretation of this testimony.

Lieutenant Johnson’s answers do not “disprove” J.W’s assertion that Appellant

went to prison for similar crimes. The testimony is unclear on this point. As

highlighted, the Lieutenant stated, “You already served time for that,” in

answer to Appellant’s comment that the video related that “[Appellant] went


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to jail for that.” In context, Lieutenant is confirming that Appellant went to

jail for “that,” whatever “that” may be. Simultaneously, we recognize that the

follow-up exchange stated there is no evidence that Appellant went to prison.

The testimony is contradictory on this point, and we have no way of

determining how the jury resolved this dispute.

      The Commonwealth attempts to diminish this exchange by noting that

a later witness “supported the officer's testimony when she testified that the

only thing Appellant ever went to jail for was not paying child support.” Id.

at 25.     However, even assuming that this later answer clarified the

discrepancy, we remain unconvinced that the error did not contribute to the

verdict.   The jury could have concluded that J.W. genuinely believed that

Appellant went to prison for molesting the others, but was merely mistaken

as to why he was imprisoned.

      Finally, we note that the trial court failed to inform the jury that the

statements could not be considered for their substance. That failure, in our

view, compounds the error to a significant degree and removes any doubt that

Appellant is entitled to a new trial. We note that Appellant specifically objected

to the inability to cross-examine J.W. about the contents of the video. In this

vein, we note that the forensic interview may have been testimonial under

Crawford v. Washington, 541 U.S. 36 (2004). See In re N.C., 74 A.3d

271 (Pa.Super. 2013) (holding that forensic interview conducted as part of

criminal investigation qualified as a testimonial statement).         If so, the


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statements probably could not be introduced, as Appellant was deprived of his

ability to cross-examine the witness about the statements.

      While Confrontation Clause errors are subject to harmless error analysis,

we believe that the concerns stated by the United States Supreme Court in

Coy v. Iowa, 487 U.S. 1012 (1988) (holding Confrontation Clause violated

where child in jury trial was blocked from viewing defendant by a screen), are

particularly relevant in light of the trial court’s opinion, which emphasized the

victim’s discomfort at facing her accuser as a reason to admit the interview.

“Given [J.W.]'s reluctance to subject herself to questioning by [Appellant] (she

did not attend the Preliminary Hearing due to emotional distress issues) . . .

the forensic interview was useful to the jury in that it was her complete

recitation of the events effectuated by a neutral questioner.”       Trial Court

Opinion, 12/4/17, at 6.     That is precisely what the Confrontation Clause

forbids:

      The perception that confrontation is essential to fairness has
      persisted over the centuries because there is much truth to it. A
      witness “may feel quite differently when he has to repeat his story
      looking at the man whom he will harm greatly by distorting or
      mistaking the facts. He can now understand what sort of human
      being that man is.” Z. Chafee, The Blessings of Liberty 35 (1956),
      quoted in Jay v. Boyd, 351 U.S. 345, 375–376, 76 S.Ct. 919,
      935–936, 100 L.Ed. 1242 (1956) (Douglas, J., dissenting). It is
      always more difficult to tell a lie about a person “to his face” than
      “behind his back.” In the former context, even if the lie is told, it
      will often be told less convincingly. The Confrontation Clause does
      not, of course, compel the witness to fix his eyes upon the
      defendant; he may studiously look elsewhere, but the trier of fact
      will draw its own conclusions. Thus the right to face-to-face
      confrontation serves much the same purpose as a less explicit
      component of the Confrontation Clause that we have had more

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     frequent occasion to discuss[,] the right to cross-examine the
     accuser; both “ensur[e] the integrity of the fact-finding process.”
     Kentucky v. Stincer, supra, 482 U.S., at 736, 107 S.Ct., at
     2662. The State can hardly gainsay the profound effect upon a
     witness of standing in the presence of the person the witness
     accuses, since that is the very phenomenon it relies upon to
     establish the potential “trauma” that allegedly justified the
     extraordinary procedure in the present case. That face-to-face
     presence may, unfortunately, upset the truthful rape victim or
     abused child; but by the same token it may confound and undo
     the false accuser, or reveal the child coached by a malevolent
     adult. It is a truism that constitutional protections have costs.

Id. at 1019–20.

     Additionally,   Coy   highlighted   the   dangers   of   accepting    the

Commonwealth’s invitation to weigh the testimony by guessing how the jury

may have sorted through the evidence: “An assessment of harmlessness

cannot include consideration of whether the witness' testimony would have

been unchanged, or the jury's assessment unaltered, had there been

confrontation; such an inquiry would obviously involve pure speculation, and

harmlessness must therefore be determined on the basis of the remaining

evidence.”    Id. at 1021-22.    Since this case reduced to a credibility

assessment of J.W., there is no remaining evidence to examine.

     Whether the recorded interview qualified as testimonial is beyond the

scope of our decision. We emphasize that point to illustrate our belief that

our consideration of the error in this case is not limited to words alone.

Moreover, this aspect of the case raises grave concerns as to the wisdom of




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applying the “right for any reason” doctrine.6           By viewing video of the

interview, the jury was able to watch and observe J.W.’s demeanor, tone,

mannerisms, and all other indicators that our judicial system holds important

in evaluating credibility. The fact that a “neutral questioner” generated those

answers is a reason to find error, not excuse it. The trial court erred, and that

error was not harmless beyond a reasonable doubt. Appellant is entitled to a

new trial.

       Judgment of sentence vacated.               Case remanded for new trial.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/2019




____________________________________________


6 We remind the Commonwealth and the trial court that the prior consistent
statement exception does not open the door to introduction of all statements.
““It is generally required, however, that any corroboration offered, including
prior consistent statements, be related to the impeachment they are to deny,
rebut, or explain[.]”      Commonwealth v. Willis, 552 A.2d 682, 692
(Pa.Super. 1988) (en banc). The Commonwealth did not attempt to tailor its
introduction of the prior consistent statements to the purported impeachment.

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