J-S26037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 PHIL LEONE,                               :
                                           :
                     Appellant             :   No. 3307 EDA 2017

              Appeal from the Judgment of Sentence June 5, 2017
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0000626-2016


BEFORE:      BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

CONCURRING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 06, 2018

        I agree that Appellant’s judgment of sentence should be affirmed in part

and reversed in part, but write separately to address issues two and five.

I.      Issue #2 – Photograph of C.S.

        Regarding the admission of a photograph depicting C.S. at the age of

five, the Majority states that we must examine whether the photographs are

inflammatory. I disagree. Commonwealth v. Vucich, --- A.3d ---, 2018 WL

4061576 (Pa.Super. August 27, 2018), recently addressed the same issue.

Therein, the Commonwealth introduced two photographs of the victim, who

was twenty at the time of trial, depicting his appearance when the sexual

abuse actually occurred. The trial court, like my colleagues today, filtered the

photograph through the inflammatory inquiry. Vucich determined that test

was inapplicable.    We stated that, “The usual context for a challenge to a


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S26037-18


photograph is . . . a gruesome photograph in which the relevance of the item

is obvious and undisputed.” Id. at *2. However, when a party challenges the

admission of a photograph on general irrelevance grounds, the inflammatory

inquiry is irrelevant. That bar is simply a specific prohibition on otherwise

admissible and relevant evidence.

      Appellant, like Vucich, did not claim that the photographs were

inflammatory in that the photographs displayed carnage or some other subject

matter which tends to trigger visceral feelings. Instead, the argument was

that there was no need to establish what C.S. looked like at age five, as that

point was irrelevant.     Vucich discussed cases holding that pictures of a

homicide victim as a life in being were generally irrelevant, and extended that

principle to this situation.

      There are obvious parallels between the Commonwealth’s seeking
      to establish through photographic proof what a homicide victim
      looked like around the time of his or her death, and the facts sub
      judice, in which the Commonwealth sought to show the victim’s
      appearance near the time of the crimes. Just as such evidence is
      generally irrelevant in a homicide prosecution—at least in cases
      where the “life in being” element is not in question—so too were
      C.D.’s childhood pictures irrelevant, as Appellant did not contest
      that C.D. was actually a child at the times he testified that the
      abuse occurred. There was thus no need to prove to the jury what
      C.D. looked like as a child, rendering the evidence irrelevant.

      We further disagree with the Commonwealth’s assertion that the
      evidence was relevant because the photographs “were necessary
      to visually depict his appearance at the time the crimes occurred.”
      Commonwealth’s brief at 13. It is undeniable that, due to the
      passage of time in this case, photographs or some other type of
      demonstrative evidence were indeed necessary to establish C.D.’s
      appearance at the time of the crimes. The Commonwealth’s
      argument, however, begs the question by assuming that the

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      victim’s visual appearance at the time of the crimes needed to be
      established in the first place.

Id. at *4 (footnote omitted).

      The Commonwealth herein asserts that the photographs were relevant

to establish that C.S. was less than thirteen at the time of the crimes, but that

fact was not in dispute and was testified to by the victim as well as her mother.

For the reasons discussed in Vucich, I conclude that the photographs were

irrelevant and therefore inadmissible.    Nevertheless, I would conclude the

error was harmless.

      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)).

      Although the harmless error doctrine places the burden on the

Commonwealth to prove beyond a reasonable doubt that the error could not

have contributed to the verdict, the Commonwealth did not assert this

doctrine. However, our jurisprudence does not require the Commonwealth to

raise the matter in its brief. As our Supreme Court stated in Commonwealth

v. Moore, 937 A.2d 1062, 1073 (Pa. 2007):

      We recognize that the Commonwealth has the burden of proving
      beyond a reasonable doubt that the error could not have

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      contributed to the verdict, and that it does not offer a harmless
      error argument in its brief. Nonetheless, an appellate court may
      affirm a valid judgment based on any reason appearing as of
      record, regardless of whether it is raised by the appellee.

Id. at 1073 (citations omitted).

      I would therefore find that the error was harmless beyond a reasonable

doubt on the grounds that any prejudice was de minimis, for substantially the

same reasons expressed in Vucich.

      We find that any prejudice was de minimis and therefore the error
      was harmless beyond a reasonable doubt. There is a natural
      overlap between what the photographs show and how the
      prosecution uses the photographs, and any resulting prejudice. In
      [Commonwealth v. Story, 383 A.2d 155 (Pa. 1978)], our
      Supreme Court noted that the photographs were introduced along
      with testimony of the victim’s “family status” and “other events of
      a personal nature.” Story, supra at 157. . . . This circumstance
      is more akin to Commonwealth. v. Rivers, 644 A.2d 710, 713
      (Pa. 1994), in which our Supreme Court concluded that
      introducing the victim’s photograph was harmless beyond a
      reasonable doubt:

            In the instant case the photograph was identified by
            the decedent’s daughter, who merely related when
            and where the photograph was taken and verified that
            it was an accurate depiction of her mother
            immediately prior to her death.       The testimony
            surrounding the photograph in this case was limited.
            Further, the actual polaroid snapshot of the victim
            does not portray her as particularly old or frail, nor
            does it reveal that she was an amputee seated in a
            wheelchair, as in the photograph the victim is seated
            behind a table. Although admission of the photograph
            was clearly improper and irrelevant, in light of the
            overwhelming circumstantial evidence of the
            appellant’s guilt, we conclude that the error was
            harmless.

      Rivers, supra at 716.


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      Therefore, while the photographs were irrelevant, their use was
      limited, and, according to the parties’ descriptions of the items,
      the exhibits simply depicted C.D.’s general appearance at the time
      of these crimes. While improperly introduced, we conclude that
      any prejudicial effect was de minimis.

      Related to this point, there is one obvious distinction between the
      scenarios in the examined homicide cases and these
      circumstances. In a homicide prosecution, but for the introduction
      of demonstrative evidence of the victim, the jury will have no
      frame of reference for the victim’s appearance. In contrast, the
      jury was obviously aware of the fact that C.D. was once a child,
      and it takes no great leap of imagination to imagine what a witness
      may have looked like as a child. This point further highlights the
      de minimis prejudice.

Vucich, supra at *5.

      As the Majority notes, the photograph at issue simply depicted C.S., and

I therefore find the error was harmless beyond a reasonable doubt.

II.   Issue #5 – Prior consistent statement

      Appellant asserted that the trial court improperly allowed three

witnesses to testify regarding out-of-court statements. The Majority holds

that all three statements were admissible pursuant to Pa.R.E. 613, which

states in pertinent part:

      (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




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             (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 Majority largely adopts the trial court’s approach, which opined that

the prior consistent statements were admissible to rebut an implied charge of

fabrication. Additionally, the Majority approvingly cites Commonwealth v.

Giles, 182 A.3d 460 (Pa.Super. 2018), which sanctions an approach to prior

consistent statements that was disavowed by the more recent case

Commonwealth v. Bond, --- A.3d ---, 2018 WL 2947871 (Pa.Super. June

13, 2018).

     In the particular context of prior consistent statements by child victims,

our precedents have suggested that all such statements are per se admissible

due to the unique considerations inherent to child abuse cases. The rationale

was that these statements are admissible for purposes of corroboration, not

rehabilitation. This theory was prominently expressed in Commonwealth v.

Willis, 552 A.2d 682 (Pa.Super. 1988) (en banc).

     The general rule precluding corroboration of unimpeached
     testimony with prior consistent statements is subject to
     exceptions when particular circumstances in individual cases tip
     the relevance/prejudice balance in favor of admission. Among the
     common examples of such exceptions are prior consistent
     statements which constitute prompt complaints of sexual assault
     and prior consistent statements which constitute prior statements
     of identification. Evidence of a prompt complaint of sexual assault
     is considered specially relevant because (rightly or not) a jury
     might question an allegation that such an assault occurred in
     absence of such evidence.

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      Prior consistent statements may also 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. . . . jurors 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 691–92 (citations and footnotes omitted).

      Notably, Willis analyzed the admissibility of prior consistent statements

under a hearsay framework. “To the extent that prior consistent statements

are offered to prove the truth of the matter asserted therein, they are plainly

inadmissible hearsay. However, when they are offered to corroborate in-court

testimony, prior consistent statements are not hearsay.” Id. at 691. As noted

in Bonds, Willis predates the enactment of the Rules of Evidence:

      The trial court cited [Commonwealth v. Hunzer, 868 A.2d 498
      (Pa.Super. 2005),] 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 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

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            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, 380 Pa.Super.
      555, 552 A.2d 682, 691–92 (1988), appeal denied, 522 Pa. 583,
      559 A.2d 527 (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.
      § 5985.1. The Hunzer defendant therefore argued that the trial
      court erred in relying on Willis rather than Rule 613. The Hunzer
      Court 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.

Bond, supra at *3-4 (footnote omitted).

      Giles, relied upon by the Majority herein, cites and discusses both

Hunzer and Willis. In Giles, the child victim, Q.H., testified that the sexual

abuse started in April of 2014. Q.H. gave details of the crimes in a forensic

interview conducted March 11, 2015. On cross-examination, defense counsel

twice impeached Q.H. with the contents of the prior consistent statement,

alleging that Q.H. told the interviewer that the first incident occurred in July

of 2014.




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       The impeachment was misleading. Our opinion noted, “nowhere in the

transcript of the forensic interview does Q.H. ever mention that the first

incident, or any of the incidents for that matter, occurred in July.” Id. at 462

(emphasis in original). Quoting Hunzer/Willis, we held that admission of the

forensic interview was permitted for corroborative purposes.

       I submit that, to the extent Giles relied upon the per se corroboration

rule in Hunzer and Willis, that reliance is misplaced and superseded by

Bond.1 Nevertheless, I agree that Giles reaches the correct result, because

Giles incorrectly suggested that Q.H.’s memory of the events was faulty by

posing a leading question that she previously stated the first sexual assault

occurred in July. Since the prior consistent statement objectively disproved

that point, the prior statement was admissible per Rule 613(c)(1), which

permits introduction of a prior consistent statement to counter a charge of

“faulty memory and the statement was made before that which has been

charged existed or arose[.]”

       With these points in mind, an examination of the trial court opinion and

the record compels my conclusion that only one of the three prior consistent

statements at issue was properly introduced pursuant to Rule 613. However,



____________________________________________


1 Bond recognized in a footnote that Hunzer could not be overruled by a
three-judge panel, but determined that Hunzer is “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.” Bond, supra at *4 n.4.

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I would find that the error in introducing the remaining two statements was

harmless beyond a reasonable doubt.

      Delineating the relevant dates is necessary, and I begin there. C.S.,

born in 1999, testified that the abuse started when she was between five and

six years old, and continued through age eleven or twelve.          Sometime in

middle school, C.S. confided to her friend, E.L., that Appellant inappropriately

touched her.    C.S. did not “go into much detail with it.”      N.T. Jury Trial,

2/28/17, at 184. C.S. did not want E.L. to report what she said to anyone

else, and E.L. did not do so. In 2014, C.S. revealed the abuse to her mother,

S.B., who contacted the police. During the ensuing investigation, C.S. spoke

to Detective Matthew Rush.

      The three prior consistent statements at issue are: (1) the statements

to E.L.; (2) the statements to C.S.’s mother; (3) the statements to Detective

Rush. Preliminarily, I note that the trial court’s opinion differs from its ruling

at trial. While the trial court is not confined to the ruling given at trial, the

trial court explicitly permitted introduction of all prior consistent statements

on the basis of Willis and Hunzer. When the Commonwealth attempted to

introduce the first prior consistent statement, the trial court was at first

skeptical of the Commonwealth’s theory.

      [COMMONWEALTH] . . . I have several cases that say when the
      testimony of Complainant is at the center of the case, that any
      prior consistent statements which she would have made to [E.L.]
      would be admissible to rebut the implication that her testimony
      was fabricated.


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            ....

      [T]he [c]ourt has discretion to allow anticipatory prior inconsistent
      statements when the defense centered on attacking a witness’
      credibility in a way that would permit introduction –

      THE COURT: But I understand that the defense, at least at this
      time, is that none of this is true.

      [COMMONWEALTH]: Because the mother fabricated this. This is
      a statement that came before the fabrication –

      THE COURT: Where is the evidence mother fabricated?

      [COMMONWEALTH]: It’s being implied through every question
      he’s asked.

Id. at 180-81.

      The judge declared a brief recess to review the law. When proceedings

resumed, the Commonwealth cited Willis, and the court added a citation to

Hunzer, remarking: “[T]he prior consistent statement may even be admitted

to corroborate unimpeached testimony of a child witness at the trial court’s

discretion[.]” Id. at 182-83. Appellant later objected to the introduction of

the other two prior consistent statements, and each time the trial court stated

that the evidence was admissible under Willis and Hunzer.

      As I have discussed, Bond discredits that approach. Thus, the proper

inquiry is whether the prior consistent statements antedate the alleged

fabrication. The trial court opinion discusses that aspect as follows.

      [Appellant] contends now that C.S. fabricated her testimony as a
      result of the influence of her mother, who harbored animosity
      towards [Appellant] from at least the time when [Appellant] took
      C.S. shopping for bras at Wal-Mart, when C.S. was 10[-]years
      [-]old. While mother may have felt this way, as we noted during

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      the trial there was not evidence presented that was sufficient to
      effectively charge that she had expressed these feelings such that
      C.S. had been influenced to fabricate allegations of sexual abuse.

            ....

      While the mother testified that she had asked on an unknown
      number of occasions prior to the disclosure, whether [Appellant]
      had been inappropriate with her, there was no evidence that
      mother had thereby influenced C.S. to make a false disclosure of
      abuse. Moreover, the timing of those inquiries is unknown.
      Accordingly, the point in time at which C.S. was effectively
      charged with fabrication or being subjected to improper influence
      was the period between the report to police and trial. Therefore,
      the hearsay statements at issue were properly considered "prior
      consistent statements" within the meaning of the Rule, and, all of
      the other requirements for admission having been satisfied, were
      properly admitted.

Trial Court Opinion, 10/5/17, at 10-11.

      I agree with portions of this analysis. Most importantly, I agree that

Appellant implied that C.S. fabricated the allegations due to the influence of

C.S.’s mother, S.B.   Appellant, who was the paramour of S.B., suggested

throughout that S.B. harbored animosity towards Appellant as a result of that

relationship. I agree that Appellant repeatedly implied that C.S. fabricated

the allegations at the behest of her mother.

      That said, I disagree with the trial court’s emphasis on the fact that

“there was no evidence that C.S.’s mother had thereby influenced [C.S.] to

make a false disclosure of abuse.” Id. at 11. I interpret this comment to hold

that the party opposing the introduction of a prior consistent statement must

produce proof of the corrupting motive, and to suggest that the court would

have sustained Appellant’s objection if he could actually prove that C.S.’s


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mother influenced C.S. to falsely implicate Appellant.         I fail to see the

significance of the lack of proof as it relates to the Rule.

      The need to analyze the prior consistent statements in relation to

Appellant’s theory, as opposed to whether Appellant has some proof of that

theory, is illustrated by Commonwealth v. Baker, 963 A.2d 495 (Pa.Super.

2008).   In Baker, the Commonwealth charged Baker for sexual crimes

occurring between May 1, 2004, and December 1, 2005.                 On cross-

examination of the victim, who was seven-years-old at the time or time of

trial, counsel suggested that the victim had been told what to say at trial by

her mother and the prosecutor. Baker therefore upheld the admission of the

victim’s recorded interview as a prior consistent statement, as “defense

counsel’s questions at the very least insinuated that [the child] had been

improperly induced to fabricate her testimony by the prosecution and her

mother[.]” Id. at 505.

      The Court in Baker did not examine whether Baker had actual proof

that the victim had been told what to say by her mother and the prosecutor.

The fact that counsel insinuated that the victim was fabricating her testimony

as a result of that corruption—regardless of whether such corruption actually

occurred—was the relevant point.         Since Baker claimed that the victim

fabricated her testimony at trial through improper coaching, the video

predated that alleged corrupting influence. Nowhere did we suggest that the




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Commonwealth was permitted to introduce the statement unless Baker could

prove that the mother or prosecution influenced the child’s testimony.2

        Viewing this case in light of what Appellant insinuated, I find that only

the prior consistent statement to E.L. was admissible. For ease of discussion,

I again quote the Rule:

       (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) (emphasis added).


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2  In Commonwealth v. Montalvo, 986 A.2d 84, 96 (Pa. 2009), witness
Esther Soto gave a tape-recorded statement to police. Montalvo wished to
call Charles Kleber, a private investigator, who would testify that Soto
informed him that the police threatened her. The trial court denied the request
and our Supreme Court affirmed, emphasizing the importance of timing under
Rule 613:

       At sidebar, trial counsel failed to provide the timing of Soto’s
       statement to Kleber, and additionally failed to provide any of the
       circumstances surrounding Soto’s prior consistent statement.
       Therefore, at the time of the trial court’s ruling, the only facts
       available for consideration were that Soto told an investigator-
       hired by Appellant’s trial counsel—that the police had threatened
       her. Under these circumstances, we conclude that the trial court
       did not abuse its discretion in excluding Kleber’s testimony.

Id. at 96. Therefore, the proponent of the statement, not the party opposing
its introduction, must establish the timing.

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       The statements to S.B. and Detective Rush were not made before the

alleged improprieties existed. Appellant postulated that C.S. and her mother

were together falsely accusing him of these crimes. Thus, C.S.’s report to her

mother, in Appellant’s telling, is an integral part of that conspiracy. In turn,

the statements to Detective Rush, would likewise be part of their scheme.

Accordingly, the statements are inadmissible.

       On the other hand, I find that C.S.’s statements to E.L. are admissible,

as those statements predate Appellant’s allegations. If C.S. and her mother

were acting in concert to implicate Appellant, then C.S.’s statement to her

classmate could not possibly be part of that conspiracy.          Absent some

suggestion that C.S. and S.B. were so devious that they banked on E.L.

ignoring C.S.’s wishes by informing the authorities—which clearly did not

happen as C.S. suffered the abuse for a lengthy period of time after her

disclosure to E.L.—then the revelations to E.L. clearly precede the alleged

fabrication. Therefore, those disclosures were properly admitted.3

       Although I have determined that only the prior statement to E.L. was

admissible, I would further hold that the introduction of the other two

statements was harmless error. As noted supra, harmless error exists where,



____________________________________________


3 The trial court’s analysis states that prior consistent statements occurring
after “the period between the report to police and trial” would be inadmissible.
For the foregoing reasons, I disagree. That analysis ignores Appellant’s theory
that the report to the police was simply the natural culmination of their alleged
conspiracy to falsely accuse him of these crimes.

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inter alia, the error did not prejudice the defendant or was de minimis. A

primary criticism against the introduction of prior consistent statements is that

such evidence is cumulative.

      Though often stated as an axiom without rationale, the primary
      reasons for exclusion of evidence of prior consistent statements
      are the need to avoid unnecessary repetition of cumulative
      evidence, and the need to prevent the fabrication of evidence.

      ....

      The general rule of exclusion of prior consistent statements, then,
      is based not upon hearsay grounds but upon a general consensus
      that     the      relevance       of     such       evidence     to
      corroborate unimpeached testimony is ordinarily outweighed by
      the danger of fraudulent manufacture of evidence, confusion of
      issues, undue delay, and needless repetition of cumulative
      evidence.

Willis, supra at 691 (emphasis in original).

      As the trial court stated, the “disclosures lacked most of the details

regarding [Appellant]’s specific conduct,” Trial Court Opinion, 10/5/17, at 8,

and C.S. supplied far more detail in her trial testimony.             Compare

Commonwealth v. Smith, 586 A.2d 957, 964 (Pa.Super. 1991) (“The

officers’ testimony included detailed accounts of the incidents which were

never supplied by S.L. herself, thereby greatly augmenting S.L.’s testimony.

We hold that the out-of-court statements do not fall within the prior consistent

statements exception to the hearsay rule.”).      Furthermore, the statements

were cumulative of the properly-admitted consistent statement.          I would

therefore hold that the statements, while erroneously admitted, did not

prejudice Appellant.

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President Judge Emeritus Bender concurs in result.




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