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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                 1   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

CRAIG GARDNER,

                          Appellant                   No. 3662 EDA 2015


         Appeal from the Judgment of Sentence of November 25, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014238-2013

BEFORE:     OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                FILED MAY 05, 2017

        Appellant, Craig Gardner, appeals from the judgment of sentence

entered on November 25, 2015 in the Court of Common Pleas of Philadelphia

County. We affirm.

        The trial court summarized the facts and procedural history in this

matter as follows.

        On September 29, 2013, the complainant received a [telephone]
        call from [Appellant] who asked to meet her at 53rd Street and
        Race Street in the City and County of Philadelphia, Pennsylvania
        to retrieve some of his belongings. The complainant was in a
        relationship with [Appellant, which produced a child]. When the
        complainant arrived, [Appellant] began to bang on her
        driver -side car window. When she rolled down the window,
        [Appellant] punched her on the left side of her face and pulled
        her out of the car. [Appellant] dragged her into his mother's
        house and continued to hit the complainant. [Appellant] then
        dragged her to the back upstairs bedroom. [Appellant] pushed
        the complainant down onto the sofa.       [Appellant] forced the
        complainant to have sexual intercourse. He penetrated her
        vagina with his penis and ejaculated. After the rape[, Appellant]
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        asked her where her [tele]phone was and punched her in the
        stomach. After the complainant put her clothes on, [Appellant]
        slammed her onto the floor. [Appellant] walked the complainant
        to her car where she refused to kiss [Appellant].        He then
        smacked and choked her through the car window.                The
        complainant was eventually able to drive away. She pulled to
        the side of the road and hit the On Star button in her car to
        [summon] the police. Police Officer Terrell Greene arrived at the
        scene and the complainant reported what happened to the
        officer.

        The complainant was taken to the Special Victims Unit where she
        gave a statement to Detective Mark Webb and was examined by
        Geneka Miles, a [s]exual [a]ssault [n]urse [e]xaminer. Ms. Miles
        took a report from the complainant and performed a physical
        examination. The nurse testified that there was tenderness of
        the cervical spine of [complainant's] neck. Also, there was
        tenderness of the labia majora and minora, and perineum.

Trial Court Opinion, 5/23/16, at 2-3 (record citations omitted).

        Based on the foregoing events, the Commonwealth filed       a   criminal

information charging Appellant with rape and related offenses on November

20, 2013. A non -jury trial commenced on June 29, 2015. On July 8, 2015,

the trial court found Appellant guilty of rape by forcible compulsion, sexual

assault, indecent assault, simple assault, recklessly endangering another

person (REAP), and false imprisonment.'        Prior to sentencing, Appellant

moved for extraordinary relief, which the court denied on November 25,

2015. That same day, the court ordered Appellant to serve ten to 20 years'

imprisonment for rape and merged convictions for sexual assault, indecent



'   18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3126(a)(1), 2701(a)(1), 2705, and
2903(a).


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assault, and REAP for sentencing purposes. No further penalty was imposed

for false imprisonment and simple assault.

      Appellant filed     a    timely notice of appeal on November 30, 2015.

Pursuant to Pa.R.A.P. 1925(b), the court, on December 2, 2015, directed

Appellant to file   a   concise statement of errors complained of on appeal

within 21 days.     Appellant filed       a    timely, original concise statement on

December 23, 2015.            Additionally, Appellant filed   a   supplemental concise

statement on May 25, 2016, which the trial court accepted as timely filed

nunc pro tunc. Although the court issued its opinion on May 23, 2016, two
days before Appellant filed his supplemental concise statement, the court's

opinion addressed the claims raised                by Appellant in his supplemental

submission.

      Appellant raises the following issue for our consideration in this

appeal:

      [Whether] the trial court err[ed] when it permitted the
      Commonwealth to introduce the complainant's out-of -court
      hearsay statements as prior consistent statements [since] the[]
      statements served only to bolster the Commonwealth's version
      of events and should not have been admitted under
      Pennsylvania Rule of Evidence 613[?]

Appellant's Brief at 3.

      Appellant argues on appeal that the court, at various stages of trial,

erroneously admitted prior consistent statements made by the complainant.

According to Appellant, the trial court improperly allowed the Commonwealth



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to bolster its case through substantive use of corroborating, prior consistent

statements in violation of our evidentiary rules. We disagree.

        "The admission of evidence   is   committed to the sound discretion of the

trial court and an appellate court may reverse only upon          a   showing that the

trial court clearly abused its discretion."        Commonwealth v. McFadden,
2017 WL 605067, *8 (Pa. Super. 2017). This standard of review is             a   narrow

one.    Commonwealth v. Mendez, 74 A.3d 256, 260                  (Pa. Super. 2013)

(citation omitted). Our case law holds that "[a]n abuse of discretion             is   not

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

the law, or the exercise of judgment that is manifestly unreasonable, or the

result of bias, prejudice, ill -will or partiality, as shown by the evidence of

record." Id.

        At this non -jury trial for rape and related offenses, the Commonwealth

called as its first witness the sexual assault nurse who examined the

complainant shortly after the attack.          During direct examination, the court

allowed the      Commonwealth to introduce the statement in which the

complainant described the attack to the nurse examiner.                The prosecutor

explained that the statements were offered as prior consistent statements in

anticipation of efforts to impeach the credibility of the complainant.             N.T.,

6/29/15, at 12. Defense counsel objected, asserting that the introduction of

the statements was premature since she had                   not yet attacked          the

complainant's credibility.   Id.   at 13.      Appellant asserts that the trial court


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erred in overruling this objection since the Commonwealth introduced the

prior consistent statement through the nurse examiner when no effort had

been made to impeach the complainant's credibility.

        Hearsay, defined as    a   declarant's out -of -court statement or assertion

offered into evidence to prove the truth of the matter asserted,        is   generally

inadmissible unless an exception applies. See Pa.R.E. 801(a) -(c) and 802.

Prior consistent statements admitted as corroborating evidence pursuant to

Rule 613(c)2 are,       however,     a   different matter.   Rule 613(c) governs

rehabilitation of   a   testifying witness.     Statements introduced under that

provision are offered simply to show that the witness's testimony is

consistent; they are not offered to prove the truth of the matter asserted.

Commonwealth v. Curely, 910 A.2d 692, 699               (Pa. Super. 2006).     Hence,

2
    In relevant part, Pa.R.E. 613(c) provides as follows:

        (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' denial or explanation.

Pa.R.E. 613(c).



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strictly speaking, statements admitted under Rule 613(c) do not fall within

the definition of hearsay.    Id.
        Because prior consistent statements are admissible only to rehabilitate

a   witness, evidence of such statements is not ordinarily introduced until after

the    witness's     testimony      has     been   attacked    on   cross-examination.

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

where it    is   clear before cross-examination that the defense will focus on

impeachment of the witness,         a   trial court enjoys the discretion to admit prior

consistent statements in anticipation of impeachment.                    Id.; see also
Commonwealth v. Wilson, 861 A.2d 919, 930                 (Pa. 2004).

        After careful review of the record, we are persuaded that the trial court

did not abuse its discretion in allowing the Commonwealth to introduce the

complainant's out -of -court statement to the nurse examiner before the

defense attacked her credibility on cross-examination.              As of the time of

trial, there was every reason to believe that defense counsel would challenge

the complainant's credibility as to the nature of the attack and the extent to

which Appellant employed force in the perpetration of the assault.               At the

preliminary hearing,3 the complainant's testimony on direct examination,

consistent with our factual recitation above, described              a   non-consensual


3 Since this was a non -jury trial, neither side gave opening statements. In
the absence of such a description of what Appellant's defense would entail,
we refer to the preliminary hearing to determine whether it was likely that
the defense strategy involved attacking the credibility of the complainant.


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sexual encounter that occurred after    a   violent confrontation with Appellant.

Thereafter, defense counsel cross-examined the complainant in an apparent

effort to demonstrate that the sexual episode at issue was consensual and to

challenge the extent to which Appellant employed force during the course of

the attack.      See N.T., 9/14/13, at 21-31.   Under these circumstances, the

trial court did not abuse its discretion in allowing the Commonwealth to use

the complainant's prior consistent statement to the nurse examiner as

rehabilitation in anticipation of impeachment on cross-examination.4



4 Although we affirm the trial court's ruling, we acknowledge a potential
infirmity in our decision. Our case law is clear that a court has the discretion
to admit, before cross examination, prior consistent statements as
rehabilitation in anticipation of an attack on a witness's credibility. See
Cook, 952 A.2d at 625. The admission of such rehabilitative evidence
usually occurs during the course of direct examination of the witness whose
testimony will be subjected to attack. What is unclear, however, is whether
the court's discretion allows it to permit the use of prior consistent
statements for anticipatory rehabilitative purposes with witnesses such as
the nurse examiner who appear before the witness whose credibility is
expected to be attacked. Neither party cited case law that discusses this
concern and our own efforts have not uncovered relevant analysis.

Nevertheless, even if the court's authority did not extend to the precise
circumstances before us, we would not be inclined to grant relief. First,
Appellant did not object on this basis at trial. There, defense counsel argued
only that that the complainant's prior consistent statement was not
admissible since counsel had not yet "attacked the credibility of the
complainant." N.T., 6/29/15, at 13. "Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal." Pa.R.A.P.
302(a). Similarly, Appellant's brief stresses only the fact that counsel had
not yet impeached the complainant; there is only passing reference to the
introduction of the challenged statement through the nurse examiner. See
Appellant's Brief at 14-15.           Although Appellant notes that the
Commonwealth introduced the prior inconsistent statement through the
(Footnote Continued Next Page)


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         We need not consider Appellant's remaining contention that the trial

court erred in allowing the Commonwealth to introduce the complainant's

statements to the police through Officer Greene as either prior inconsistent

statements, excited utterances, or prompt complaints.                "This Court may

affirm    a   decision of the trial court if there is any basis on the record to

support the trial court's actions, even if we rely on            a   different basis."

Commonwealth v. Allshouse, 985 A.2d 847               (Pa. 2009).     An error in the

admission of evidence is subject to reversal only if it contributed to the

verdict. See McFadden, 2017 WL 605067, *8. For the reasons that follow,

we conclude that the complainant's testimony, when confronted with her

multiple      prior   inconsistent   statements,   constituted   such     compelling,

substantive evidence of Appellant's guilt that any alleged errors in the

admission of out -of -court statements through Officer Greene could not have

contributed to the guilty verdicts rendered in this case.


(Footnote Continued)

nurse examiner before the complainant ever testified, the brief does not
explain whether or how this procedure conflicts with a proper construction of
Rule 613(c). Hence, the issue is waived as undeveloped. See Pa.R.A.P.
2101 and 2119(a). Lastly, as we shall explain above, the compelling nature
of the complainant's testimony, when confronted with her multiple prior
inconsistent statements in police reports, prison telephone calls with
Appellant, and her preliminary hearing testimony, make clear that any
potential error in the introduction of the complainant's prior consistent
statement through the nurse examiner did not contribute to the guilty
verdicts in this case. See McFadden, 2017 WL 605067, *8 (trial court will
be reversed only if an error in the admission of evidence contributed to the
verdict).


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        Pennsylvania Rule of Evidence 803.1 provides that prior inconsistent

statements are not excluded by the rule against hearsay, and constitute

substantive          evidence,    if   the   declarant        testifies             and   is   subject   to

cross-examination about the prior statement and the statement was given

under oath subject to the penalty of perjury at                          a        trial, hearing, or other

proceeding, or in         a   deposition or   is a     writing signed and adopted by the

declarant. See Pa.R.E. 803.1.5 As an exception to the hearsay rule where

the declarant testifies at trial, Pa.R.E. 803.1                              is    consistent with    prior

Pennsylvania case law, including Commonwealth v. Lively, 610 A.2d 7

(Pa.    1992), where our               Supreme        Court       held        that     prior   inconsistent

statements made by Commonwealth witnesses at                             a    preliminary hearing, and

in a signed   writing given to police, were admissible as substantive evidence.

        Almost immediately after taking the witness stand, the complainant

advised that she did not want to testify against Appellant and that she only

appeared in court to avoid enforcement of                     a    bench warrant and to speak

one-on-one with the judge.               The complainant explained that she forgave

Appellant, that she thought he was            a   "good person," that she wanted to drop

the charges, and that she wanted Appellant to return to her and the child

they shared together.            Instead of       a   rape, the complainant described the

incident as      a    "domestic altercation" and said she summoned the police


5 Effective April 1, 2017, our Supreme Court amended Rule 803.1, but the
changes have no impact upon this case.


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because     Appellant    became   too      aggressive.   However,     after   the

Commonwealth confronted the complainant with her prior inconsistent

statement to investigators, telephone conversations she had with Appellant

from prison, and with her prior testimony at Appellant's preliminary hearing,

the complainant admitted that she was "not denying that this happened" but

that she believed Appellant only needed counseling.       N.T.   6/29/15, at 62.

Based on the substantive evidence set forth in the complainant's prior

inconsistent statements, which she did not deny, we conclude there was         a


sufficient basis to support the verdicts entered in this case, despite the

complainant's change of heart toward Appellant. Because the complainant's

prior inconsistent statements constitute compelling, substantive evidence of

Appellant's guilt, any alleged errors in the admission of evidence in this case

did not contribute to Appellant's adverse verdicts.

        Judgement of sentence affirmed.

Judgment Entered.




Jo'seph D. Seletyn, Es   .


Prothonotary


Date: 5/5/2017




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