J-S68012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                             Appellee

                       v.

KEVIN WILLOCK,

                             Appellant                        No. 25 EDA 2015


           Appeal from the Judgment of Sentence December 5, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006516-2011


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                             FILED DECEMBER 29, 2015

       Kevin Willock appeals from the judgment of sentence of twelve to

twenty-seven years’ incarceration, imposed December 5, 2014, following a

jury   trial   resulting    in   his   conviction   for   involuntary   deviate   sexual

intercourse, unlawful contact with a minor, endangering the welfare of

children, corruption of minors, and indecent assault.1 We affirm.

       The evidence adduced at the trial in this matter established that

Appellant orally and anally sodomized his five-year-old son, K.A., causing

him to bleed from the anus on one occasion. K.A. testified that the assaults

occurred numerous times. See Notes of Testimony (N.T.), 06/23/2014, at

____________________________________________


1
  See 18 Pa.C.S. §§ 3123(a)(1), 6318(a)(1), 4304(a), 6301(a)(1), and
3126(a)(7), respectively.
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81-137.     It is further notable that K.A. did not have stable housing as a

young child until Ms. Shanita Young gained custody of him in 2007. See id.

at 84, 156. Prior to that, K.A. lived with several different people, including

his father. See id. at 84-87.

      During the cross-examination of the victim, counsel for Appellant

impeached his testimony regarding the frequency and manner of the

assaults.   See id. at 112-29.      Specifically, counsel focused on a forensic

interview, conducted prior to trial by the Philadelphia Children’s Alliance

(P.C.A.), in which K.A. stated only that his father assaulted him a single time

and did not indicate that any oral sex had occurred.       See id. at 123-27.

K.A. acknowledged and attempted to explain these discrepancies.            For

example, the victim explained that, initially, he was “only comfortable about

telling one time.”   Id. at 124.    Regarding the occurrence of oral sex, the

victim stated, “I didn’t know what that was at the time. I thought that was

just, like, what sex was.” Id. On redirect, the victim further explained that

when investigators showed him a picture of a boy, he only identified the

penis and butt as “private parts,” because he did not consider the mouth to

be a private part. Id. at 130-31.

      Appellant did not present evidence on his own behalf.         Rather, he

challenged the motivations and veracity of the victim.            His strategy

crystallized in two evidentiary disputes relevant to this appeal.    First, the

Commonwealth and Appellant each filed pretrial motions in limine addressing


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other sexual abuse and conduct of the victim.           In January 2013, the

Commonwealth filed a motion to exclude evidence that K.A. had previously

alleged sexual abuse by a third party. In it, the Commonwealth averred that

in September 2008, K.A. disclosed to police that a ten-year-old “cousin,”

named W.Y., had “pulled down his pants and put his private part in [the

victim’s] butt.”      Commonwealth Motion in Limine, 01/18/2013, at 1.

According to the motion, no defendant was arrested because “police could

not properly identify him.” Id. at 2.2 In February 2013, Appellant filed a

motion to admit evidence that K.A. had admitted to certain sexual

misconduct with a younger relative and was, thereafter, enrolled in therapy.

See Appellant’s Motion in Limine, 02/04/2013, at 1. Following argument in

April and July 2013, the trial court expressly granted the Commonwealth’s

motion. See Trial Court Order, 07/17/2013. However, the certified record

reveals no ruling by the court on Appellant’s motion.

       The second evidentiary dispute arose during trial and involved the

admissibility of a videotaped recording of the victim’s forensic interview.

Following Appellant’s cross-examination of K.A., the Commonwealth sought

to introduce the video as a prior consistent statement. Appellant challenged

____________________________________________


2
  Also noted was a report by the victim to the Department of Human
Services that a former foster parent behaved in a sexually inappropriate
manner, resulting in his removal from the foster home. Id. However,
Appellant never challenged the exclusion of this evidence.




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the video’s admissibility, asserting that it was not a prior consistent

statement as defined by Pennsylvania Rule of Evidence 613(c)(1). The trial

court overruled Appellant’s objection and permitted the Commonwealth to

introduce the video. See N.T., 06/24/2014, at 6-19. The court agreed that

Subsection (c)(1) did not apply but concluded that Subsection (c)(2)

provided a basis to admit the video. See Trial Court Opinion, 02/23/2015,

at 8-13.

       A jury trial commenced in June 2014.3 In December 2014, following

his conviction and a pre-sentence investigation, the trial court sentenced

Appellant as outlined above.4 Appellant timely appealed and filed a court-

ordered Pa.R.A.P. 1925(b) statement.             The trial court issued a responsive

opinion.

       On appeal, Appellant disputes the trial court’s pre-trial rulings

disposing of the motions in limine, as well as the admissibility of the
____________________________________________


3
  In addition to testimony from the victim, the Commonwealth introduced
testimony from Ms. Young and investigators involved in the case.
4
  The court imposed eight-and-one-half to twenty years’ incarceration for
involuntary deviate sexual intercourse; a consecutive period of three-and-
one-half to seven years’ incarceration for endangering the welfare of
children; a concurrent period of eight-and-one-half to twenty years’
incarceration for unlawful contact with a minor; and concurrent periods of
one to two years’ incarceration for both corruption of minors and indecent
assault. See N.T., 12/5/2014, at 103-04; see also Criminal Docket No. CP-
51-CR-0006516-2011 at 5-7. The court determined that the Commonwealth
failed to meet its burden of clear and convincing evidence to designate
Appellant a sexually violent predator. Id. at 85.




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videotape recording of the victim’s forensic interview. See Appellant’s Brief

at 3. Thus, Appellant challenges evidentiary decisions of the trial court. It is

long settled that “the admissibility of evidence is a matter addressed to the

sound discretion of the trial court, and that an appellate court may reverse

only   upon     a   showing     that   the     trial   court   abused   its   discretion.”

Commonwealth v. Claypool, 495 A.2d 176, 178 (Pa. 1985); see also

Commonwealth v. Fink, 791 A.2d 1235, 1240 (Pa. Super. 2002).

       Appellant contends that the trial court erred in its pre-trial rulings,

improperly limiting his inquiry into K.A.’s sexual history.                   Specifically,

Appellant sought to question K.A. regarding his prior claims of sexual

victimization, his possible recantation of those claims, and his alleged sexual

assault(s) upon other children.5 See Appellant’s Brief at 3. Appellant raises

three arguments in support of his contention: (1) the court’s pre-trial rulings

were premature; see id. at 21-22; (2) this evidence was relevant to
____________________________________________


5
  The certified record does not include an order disposing of Appellant’s
motion in limine regarding allegations that the victim admitted to any sexual
misconduct. Further, the parties did not discuss Appellant’s motion during
either of the hearings held to resolve their evidentiary disputes. See N.T.,
04/17/2013, at 3-16; N.T., 07/17/2013, at 4-6. Finally, Appellant did not
seek clarification from the trial court or otherwise attempt to introduce this
evidence during trial. What is not contained in the certified record “does not
exist for purposes of our review.” Commonwealth v. O’Black, 897 A.2d
1234, 1240 (Pa. Super. 2006) (finding waiver where the appellant failed to
insure that a motion to suppress was included in the certified record).
Accordingly, we deem any issue regarding the admissibility of this evidence
waived. Id. Absent waiver, we note that any allegations of Appellant’s
sexual misconduct are irrelevant. See, infra, our rejection of Appellant’s
theory of relevance.



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demonstrate K.A.’s motive to lie and his basis of knowledge regarding “adult

responses” to allegations of sexual assault; see id. at 3, 21-32; and (3) the

victim opened the door to this line of inquiry during his testimony on direct

examination. See id. at 3, 32-33.

      Appellant suggests, for the first time on appeal, that the trial court’s

pre-trial rulings were premature, as the court lacked a sufficiently developed

record to inform its decision, citing in support Commonwealth v. Hicks, 91

A.3d 47, 53 (Pa. 2014). Appellant did not raise this concern with the trial

court. Accordingly, we deem it waived. See Pa.R.A.P. 302(a).

      Absent waiver, however, Appellant’s reliance on Hicks is misplaced.

Hicks addressed the admissibility of potentially cumulative testimony and

the tests required by Pa.R.E. 403 and 404(b), i.e., balancing the probative

value of evidence against the prejudice it may cause one side or the other.

See Hicks, 91 A.3d at 53-54.          In this context, our Supreme Court

admonished that “[t]he balancing inquiry … is a fact-and context-specific one

that is normally dependent on the evidence actually presented at trial” Id.

at 54. Here, although the parties discussed Rules 403 and Rule 404(b), see,

e.g., N.T., 07/17/2013, at 4, the trial court ultimately concluded that the

victim’s “prior sexual conduct and abuse is irrelevant.” Trial Court Opinion

at 7 (emphasis added). Thus, the balancing tests of Rules 403 and 404(b)

were unnecessary, and the concerns raised in Hicks regarding pre-trial

rulings were not present here.


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     Appellant asserts that evidence of K.A.’s other sexual victimization was

relevant and admissible to establish a motive to falsely accuse his father of

sexual abuse. See Appellant’s Brief at 24. Generally, the Rape Shield Law

precludes evidence of an alleged victim’s prior sexual conduct.      See 18

Pa.C.S. § 3104(a).     However, the Supreme Court of Pennsylvania has

clarified that the Rape Shield Law does not prohibit evidence of previous

sexual assaults upon a victim because “[t]o be a victim is not ‘conduct’ of

the person victimized.”   Commonwealth v. Johnson, 638 A.2d 940, 942

(Pa. 1994). Therefore, evidence of K.A.’s other sexual victimization is not

subject to exclusion under the Rape Shield Law and must be examined

under traditional rules of evidence. Id.; see also Commonwealth v. L.N.,

787 A.2d 1064, 1069 (Pa. Super. 2001); Pa.R.E. 401.

     Here, Appellant’s rather convoluted theory of relevance is premised

upon the victim’s long-term housing instability, his anger at his father for

repeated absences, his eventual placement in the care of Ms. Young, his

contentment with Ms. Young’s guardianship, and his fear that he could be

removed from her care.     See Appellant’s Brief at 20-24.   Ostensibly, the

victim’s motivation to lie was to insure his continued placement with Ms.

Young, thus never to be returned to Appellant’s custody. Id. at 24. In this

context, Appellant suggests that the victim’s other sexual victimization

formed a basis of knowledge regarding “adult responses” to allegations of




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sexual assault. According to Appellant, this knowledge informed the victim’s

efforts to remain in Ms. Young’s custody. Id. at 26.

       Appellant’s argument is highly speculative, as he proffered no evidence

that such a change in custody was likely or even possible.                   Although

Appellant may have been involved in an attempt to gain custody of his son

in 2008, those efforts ended without success two years prior to the victim’s

revelations of sexual abuse.         See N.T., 06/23/2014, at 119, 168-74; but

see also id. at 183 (suggesting that Appellant had no direct role in any

custody battle for his son). Indeed, when the victim eventually revealed his

father’s abuse in 2010, Appellant was incarcerated on unrelated charges and

had ceased to play any role in his son’s life. See Motion in Limine to Exclude

Prejudicial Material, 02/04/2013, at ¶ 3 (averring that Appellant “has been

incarcerated in New Jersey for the past five years on matters unrelated to

the instant case”). Thus, Appellant’s argument is not persuasive.

       Despite the pre-trial ruling of irrelevancy, Appellant asserts that K.A.

opened the door to this line of inquiry during his testimony on direct

examination.6      Specifically, Appellant sought to challenge K.A. (and Ms.

Young) with his purported recantation of the W.Y. assault.                  See N.T.,

06/23/2014,      at   140-42.        According   to   Appellant,   K.A.’s   purported

____________________________________________


6
  The victim referenced the incident with W.Y. when he revealed on direct
examination that he had been sexually assaulted, by another person,
subsequent to the assaults by his father. See N.T. at 107-08.



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recantation was integral to Appellant’s theory of relevancy. See Appellant’s

Brief at 33 (asserting that “by recanting the claim …, K.A. could prevent a

possible removal    from [Ms.] Young’s home and further refined his

understanding of systematic responses to accusations of abuse on his

housing”).

     The trial court permitted limited cross-examination of K.A. on this

matter. See N.T., 06/23/2014, at 112-13. However, the court forbade any

inquiry into K.A.’s purported recantation.    See id. at 149-50.   The court

offered two reasons, equally sound.

     First, and foremost, Appellant proffered no direct evidence of a

recantation.   To the contrary, Appellant conceded to the court that K.A.

never recanted his allegation to the police.      N.T., 06/23/2014, at 149.

Instead, Appellant proffered indirect evidence, which consisted of a

summary of the P.C.A. interview with Ms. Young in 2010. Id. at 147-49. As

described by the trial court, “The summary stated Ms. Young said that when

K.A. spoke to police in 2008, he indicated that nothing happened with

[W.Y.].”   Trial Court Opinion at 7.   Apart from the rather obvious hearsay

issues affecting its admissibility, the summary was contradicted directly by

the actual 2008 police report of the W.Y. assault, which included no

recantation. Thus, there was no prior inconsistent statement with which to

impeach K.A. See N.T., 06/23/2014, at 150.




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      Moreover, to the extent Appellant sought to cross-examine K.A. or Ms.

Young more extensively regarding the W.Y. assault, the court noted that “a

witness may not be contradicted on a collateral matter.” Trial Court Opinion,

at 7 (quoting Commonwealth v. Holder, 815 A.2d 1115, 1119 (Pa. Super.

2003)); see also N.T., 06/23/2014, at 144.         A collateral matter is “one

which has no relationship to the case on trial.” Commonwealth v. Fisher,

290 A.2d 262, 267 (Pa. 1972) (quoting Commonwealth v. Petrillo, 19

A.2d 288, 295 (Pa. 1941)).       As K.A.’s prior victimization was irrelevant to

Appellant’s trial, the W.Y. assault was a collateral matter and not a proper

subject for cross-examination.

      Appellant also contends that the trial court erred by admitting into

evidence a videotaped recording of K.A.’s forensic interview. According to

Appellant, (1) the video was not a prior consistent statement under Pa.R.E.

613; (2) it did not rebut or rehabilitate any specific charge or motive; and

alternatively, to the extent it was rehabilitative, (3) K.A.’s statement therein

was recorded after his alleged motivation to lie arose. Appellant’s Brief at 3.

Moreover, according to Appellant, the court erred further by admitting the

entire video, rather than relevant excerpts. See id. at 37-40.

      Rule 613 provides, in relevant 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:

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      (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).

      Appellant’s statement of the question presented does not accurately

reflect the trial court’s analysis. When this issue arose during trial, Appellant

argued that the video was inadmissible under Rule 613(c)(1).           See N.T.,

06/23/2014, at 20-21; N.T., 06/24/2014, at 6-19.           The trial court agreed

but determined the video was nonetheless admissible under Rule 613(c)(2).

N.T., 06/24/2014, at 14 (“If it was just for the motive, [the Commonwealth]

is wrong. I mean[,] you [Appellant] are right[,] and I wouldn’t let it in.”);

see also Trial Court Opinion at 9 (citing Commonwealth v. Busanet, 54

A.3d 35, 66-67 (Pa. 2012). The court expressly stated Appellant’s error in

its opinion. See Trial Court Opinion at 10 (“[Appellant] is mistaken in his

claim of error, as this [c]ourt admitted the … [videotaped recording] under

Pa.R.E. 613(c)(2).”).

      Here, Appellant persists in this error.     See Appellant’s Brief at 34

(“Yet, after K.A. testified, the lower court permitted the Commonwealth to

play the video as a prior consistent statement to rebut a charge of recent

fabrication.”) (emphasis added). As Appellant’s statement of the question is

essentially a straw man, we will not address it further.

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      Appellant briefly acknowledges the basis of the trial court’s ruling in

the body of its argument.      See Appellant’s Brief at 36-37.    However, as

Appellant did not argue this point before the trial court and further failed to

raise it in his Rule 1925(b) statement, we deem it waived.       See Pa.R.A.P.

302(a); Pa.R.A.P. 2116.      Absent waiver, we note further that Appellant’s

assertion that the video is “duplicative bolstering,” for which he cites in

support Commonwealth v. Jubilee, 589 A.2d 1112, 1116 (Pa. Super.

1991) (“[P]rior consonant statements of a witness are not admissible to

bolster the witness' credibility where the witness has admitted that he or she

made prior inconsistent statements.”).        However, Jubilee is no longer

apposite, as it preceded the adoption of Rule 613. Pa.R.E. 613 (originally

adopted May 8, 1998). Our Supreme Court has recognized this extension of

Pennsylvania law expressly.     Commonwealth v. Harris, 852 A.2d 1168,

1176 (Pa. 2004) (quoting Pa.R.E. 613 Comment). Accordingly, Appellant’s

argument is without merit.

      Here, Appellant impeached K.A.’s testimony regarding the frequency

and manner of the assaults.      K.A. acknowledged that his testimony was

inconsistent with his previous statements describing his father’s abuse and

attempted to explain these discrepancies. N.T., 06/23/2014, at 124, 130-

31.   The videotape recording supports K.A.’s explanation.          See, e.g.,

Transcript of P.C.A. Forensic Interview, 04/23/2010, at 6.       Accordingly, it

was admissible under Rule 613(c)(2).


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      Finally, Appellant suggests the trial court erred further by admitting

the entire video, rather than relevant excerpts. Following the court’s ruling

on admissibility, the following exchange took place:

      [Counsel for Appellant]: I was going to ask you that we play
      the whole video to put it in context. I would say there are some
      things that would normally be objectionable that I would limine
      out, particularly in the first page of my father – third page, my
      father used to do identity thefts and they abandoned me in the
      house, because that came up –

      The Court: You basically opened it.

      [Counsel for Appellant]: Right. I agree. And it is what it is.
      I think that if we are going to play it, that we have to play the
      whole thing.

N.T., 06/24/2014, at 19.       Clearly, following the court’s ruling, counsel’s

strategy was to provide the complete context in which K.A.’s interview

occurred. Accordingly, as counsel specifically requested that the entire video

be played for the jury, Appellant has waived this issue on appeal. Pa.R.A.P.

302(a).

      For the above reasons, we discern no abuse of the trial court’s

discretion in resolving the evidentiary disputes before it.       Accordingly,

Appellant is entitled to no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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