J-A21030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLIFFORD E. EMARIEVEBE                     :
                                               :
                       Appellant               :   No. 361 EDA 2019

       Appeal from the Judgment of Sentence Entered November 8, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003424-2017


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 28, 2019

        Appellant, Clifford E. Emarievebe, appeals from the judgment of

sentence entered on November 8, 2018, as made final by the denial of a

post-sentence motion on December 28, 2018, following his jury trial

convictions of involuntary deviate sexual intercourse with a child, 1 indecent

assault,2 and endangering the welfare of children.3 We affirm.

        The facts of this case are as follows. In April 2016, Appellant moved

from Nigeria to Chester, Pennsylvania, where he lived with his then wife, M.M.,

and her ten-year-old daughter, E.T. (“the Victim”). N.T. Trial, 6/27/18, at

94-95. The pair later separated in June. Id. at 171 and 173. Even though

____________________________________________


1   18 Pa.C.S.A. § 3123(b).

2   18 Pa.C.S.A. § 3126(a)(7).

3   18 Pa.C.S.A. § 4304(a)(1).
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Appellant moved out of the martial residence, he sometimes drove M.M. to

work and then returned to the Victim’s home. Id. at 173. It was during this

time that Appellant sexually abused the Victim. Id. at 55.

      In March 2017, the Victim told school officials that Appellant sexually

abused her. Trial Court Opinion, 4/5/19, at 2. The school then called M.M.,

and after she inquired as to what occurred, the Victim “told her that

[Appellant] was touching her.” Id. On March 27, 2017, Officer Chris Senkow

came to talk to the Victim. Id. During this conversation, the Victim relayed

that Appellant had touched her “at least five times in the last month” and

“described the details of three of those incidents.” Id. Specifically, the Victim

reported that, “Appellant inserted his penis in her mouth[,] [Appellant] put his

hand down her pants and penetrated her vagina with his finger,” and lastly,

Appellant “put his penis in [the Victim’s] anus.” Id. at 5.

      Appellant’s jury trial commenced June 27, 2018.           The trial court

recounted the Victim’s trial testimony explaining the sexual abuse as follows.

      [On June 27, 2018 the Victim] took the stand to testify.
      Consistent with what had been relayed to Officer [] Senkow, as
      well as [during her forensic interview with] Jodi Kaplan, [the
      Victim] testified that [Appellant] [] usually “did stuff” to her when
      her mother went to work. During one incident, [] Appellant told
      [the Victim] that he wanted to touch her “right there.” [The
      Victim] did not know the medical term for that part of her body,
      but referred to it as her “swimsuit area.” She next described an
      incident where Appellant drove her to and from her friend’s
      birthday party in mid-February 2017. She stated that he touched
      her thigh, asked “do you love me,” and kissed her on the lips. The
      next episode she described was where [A]ppellant rubbed her
      “swimsuit area” while she laid on a pull-out couch in the
      basement. One of the more detailed scenarios [the Victim]


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       described was where she was watching television in the living
       room with Appellant and her brother. Appellant sent her brother
       upstairs then put his hand on [the Victim’s] head and made her
       “suck his private parts.” She said that experience “felt weird.” He
       then bent her over the couch and put his “private parts” in her
       “butt.” []

Id. at 4. Near the end of the Victim’s direct-examination, the Commonwealth

sought to admit into evidence an entry from the Victim’s journal. N.T. Trial,

6/27/18, at 80-88.        Appellant’s trial counsel objected on the grounds of

hearsay. Id. at 82. After argument, the trial judge admitted only the second

paragraph of the journal entry where the Victim wrote that she “was assauted

[sic] by somebody.” Id. at 88-89; see Commonwealth’s Exhibit 2. The trial

court determined that the statement met the recorded recollection exception

to hearsay. Id.

       On June 29, 2018, Appellant was found guilty of involuntary deviate

sexual intercourse with a child, indecent assault, and endangering the welfare

of children.    Trial Court Opinion, 4/5/19, at 6.    On November 8, 2018,

“Appellant was sentenced to an aggregate term of 96 months to 192 months

of incarceration and was required to register as a Tier 3 SORNA4 registrant.”

Id. On November 16, 2018, Appellant filed a pro se motion for reconsideration

of sentence.     Appellant’s Pro Se Motion for Reconsideration of Sentence,

11/16/18, at 1-5. On November 20, 2018, the Commonwealth filed a motion

for reconsideration and modification of sentence. Commonwealth’s Motion for

____________________________________________


4Sexual Offender Registration and Notification Act, 42 Pa. C.S.A. § 9799.10.
et seq.

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J-A21030-19



Reconsideration and Modification of Sentence, 11/20/18, at 1-3.        The trial

court denied both motions on December 28, 2018.            Trial Court’s Order,

12/28/18, at 1; Trial Court’s Order 12/28/18, at 1.         This timely appeal

followed.5

       Appellant raises the following issue on appeal:

        I.    Whether the trial court committed reversible error when it
              admitted evidence of the complainant’s journal entry []
              [when it] did not qualify under the recorded recollection
              hearsay exception?


Appellant’s Brief at 4.

       We have explained:

       Our standard of review over evidentiary rulings requires us to
       determine whether the trial court abused its discretion. An abuse
       of discretion may not be found merely because an appellate court
       might have reached a different conclusion, but requires a result of
       manifest unreasonableness, or partiality, prejudice, bias, or
       ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super. 2007) (internal

citations omitted).

       Appellant alleges that the trial court erred by admitting the Victim’s

journal entry because it is “unquestionably hearsay under Rule 801(c),” and



____________________________________________


5 Appellant filed a notice of appeal on December 6, 2018. On December 14,
2018, the trial court filed an order directing Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). After securing an extension from the trial court, Appellant timely
complied. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 5, 2019.

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“does not meet the requirements of Rule 803.1(3).” Appellant’s Brief at 12

and 14. We agree.

      Hearsay “is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.”    Pa.R.E. 801(c).    The Victim’s journal entry constitutes

hearsay. The only portion admitted into evidence explicitly stated that the

Victim “was assauted [sic] by somebody.” N.T. Trial, 6/27/18, at 88-89; see

Commonwealth’s Exhibit 2. This is exactly what the Commonwealth sought

to prove. Because the statement made in the Victim’s journal was offered for

the truth of the matter asserted, it is inadmissible as hearsay unless it falls

within an exception “provided by other rules prescribed by the Pennsylvania

Supreme Court, or by statute.” Pa.R.E. 802.

      The Pennsylvania Rules of Evidence outline various exceptions to the

prohibition against hearsay.       Pursuant to Rule 803.1, certain hearsay

statements are admissible if the declarant also testifies at trial. See Pa.R.E.

803.1. In this case, the trial court admitted the journal entry under the

recorded recollection exception.    See Pa.R.E. 803.1(3).      In order for the

content of a writing to be admissible as a recorded recollection, “the proponent

must lay a foundation to show that four requirements are met: ‘1) the witness

must have had firsthand knowledge of the event; 2) the written statement

must be an original memorandum made at or near the time of the event and

while the witness had a clear and accurate memory of it; 3) the witness must

lack a present recollection of the event; and 4) the witness must vouch for

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the accuracy of the written memorandum.’” Commonwealth v. Cooley, 398

A.2d 637, 641 (Pa. 1979), quoting McCormick, Evidence § 299 (2d Ed. 1972).

      In this case, the Commonwealth failed to lay the proper foundation for

the Victim’s journal entry’s admission as a recorded recollection. During trial,

the Victim testified for the Commonwealth, during which she provided “clear

and consistent testimony.” Trial Court Opinion, 4/5/19, at 11. Indeed, the

Victim never once stated that she lacked a present recollection of the incidents

with Appellant. Cooley, 398 A.2d at 641. Furthermore, the Victim did not

testify that the journal entry accurately reflected her knowledge at the time it

was made.       See Pa.R.E. 803.1(3)(c).    Accordingly, the trial court erred in

admitting the journal entry under this hearsay exception.

      We now consider whether the journal entry could be properly admitted

pursuant   to    an   alternate   theory.     The   Commonwealth    invokes   the

“right-for-any-reason” doctrine, and argues that the journal entry was

admissible under Pa.R.E. 613(c). Commonwealth’s Brief at 13. “According to

the ‘right-for-any-reason’ doctrine, 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 as of record.” Commonwealth

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

      Herein, even if this Court could invoke the “right-for-any-reason”

doctrine, Rule 613(c) is inapplicable in this instance.      The rule states, in

relevant part, the following:




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      (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[.]

Pa.R.E. 613(c).

      The Commonwealth argues that the admission of the Victim’s journal “is

consistent with [Rule 613(c)].” Commonwealth’s Brief at 13. In support of

its argument, the Commonwealth asserts that Appellant’s trial counsel

“expressly charged the [V]ictim with fabrication” on cross-examination and

also, “insinuated that the [V]ictim had been improperly induced to fabricate

her testimony by her mother.” Id. at 13-14. This, per the Commonwealth,

renders the journal entry admissible “as a prior consistent statement to

rehabilitate [the Victim’s] testimony.” Id. We disagree.

      Importantly, Rule 613(c) contains two specific timing requirements.

First, Rule 613(c) permits the introduction of a prior consistent statement only

after an express or implied impeachment.        Id.    Thus, a prior consistent

statement     is   generally   only   admissible      after   cross-examination.

Commonwealth v. Cook, 952 A.2d 594, 625 (Pa. 2008).               “Occasionally,

however, [when] it is clear before cross-examination that the defense will

focus on impeachment of the witness” the trial court “is afforded discretion to

admit the prior consistent statement in anticipation of impeachment.” Id.



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Second, Rule 613(c) requires the prior consistent statement predate “the

alleged motive to lie.” Commonwealth v. Bond, 190 A.3d 664 (Pa. Super.

2018); see Pa.R.E. 613(c)(1). A prior consistent statement must meet both

timing requirements to be admissible.

        Here, the Commonwealth introduced the journal entry during the

Victim’s direct examination, not during re-direct examination or rebuttal. N.T.

Trial, 6/27/18, at 80-88.           Therefore, the statement was introduced in

anticipation of impeachment.             Notably, in defense counsel’s opening

statement, he asserted that children say “things that [are] not true,” are

“easily influenced,” and “continue with a fabricated story.” N.T. Trial, 6/27/18,

at 41-42. Accordingly, before cross-examination, it was relatively clear that

defense counsel planned to “focus on the impeachment of the witness,” and

thus, the introduction of the journal entry on direct-examination met Rule

613(3)’s first timing requirement. Cook, 952 A.2d at 625.

        Nonetheless, the creation of the Victim’s journal entry did not predate

the alleged motive to lie.       At trial, defense counsel argued that, from the

outset, the Victim was operating under an improper influence. Specifically,

counsel alleged that the Victim’s mother encouraged her to accuse Appellant

of the sexual misconduct.6 N.T. Trial, 6/27/19, at 124. The statement offered

____________________________________________


6   During cross-examination of the Victim, the following exchange occurred:

        Question: All right. Now, you love your mom. Correct?



                                           -8-
J-A21030-19



by the Commonwealth does not precede the asserted motive to fabricate.

Therefore, Rule 613(c) cannot save the trial court’s ruling.

       Even though the trial court erred in admitting the journal entry, we must

determine 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.


____________________________________________


       Answer: Yes.

       Question: And you would do anything for her, wouldn’t you?

       Answer: Yes.

       Question: Yes?

       Answer: Um-hum.

       Question: You wouldn’t lie for her, would you?

       Answer: Never.

       Question: Okay. Did your mom tell you to lie?

       Answer: No.

       Question: Did she tell you to tell this story?

       Answer: No.

       Question: Tell the jury, ladies and gentlemen, did this whole thing
       really happen young lady?

       Answer: Yes.

N.T. Trial, 6/27/19, at 124.

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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 argues that the prejudicial effect of the admission

of the Victim’s journal was de minimis “compared to the other evidence

introduced to establish [Appellant’s] guilt.”    Commonwealth’s Brief at 17.

Additionally, it contends that the Victim’s journal entry was “merely

cumulative of all other testimony provided by the [V]ictim and other

witnesses.” Id. We agree.

      In this case, the trial court only permitted one sentence of the Victim’s

journal to be admitted into evidence. The sentence merely stated: “I was

assauted [sic] by somebody.” Commonwealth’s Exhibit 2. Importantly, this

was admitted after the Victim provided detailed testimony regarding the

incidents with Appellant and did not introduce additional information that the

jury had not heard previously.     It does not even identify Appellant as the

individual who assaulted the Victim. Therefore, the trial court’s admission of

the journal entry constituted harmless error.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/19




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