J-A02003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAMES CALVIN HAMLETT, JR.                  :
                                               :
                      Appellant                :   No. 1172 WDA 2016

             Appeal from the Judgment of Sentence June 30, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0014824-2015


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                            FILED SEPTEMBER 11, 2018

        James Calvin Hamlett, Jr., appeals from the judgment of sentence of

life imprisonment imposed following his jury trial convictions for a litany of

crimes involving his sexual assault of a thirteen-year-old child. We affirm in

part, reverse in part, and remand for further proceedings.

        Appellant, who was sixty-one years old at the time of the crimes, met

R.E. when he gave her a ride in his jitney.1 Over time, Appellant became

friends with R.E. and her family.         On September 16, 2015, Appellant took

R.E., then thirteen years old, to a Pittsburgh Pirates game. After the game,

Appellant took R.E. to a restaurant, and, at approximately midnight, the two

left for R.E.’s home.


____________________________________________


1   A jitney is an unlicensed taxi.
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     Instead    of   driving   R.E.   home,   Appellant   drove   to   several

neighborhoods while the two chatted. At some point, R.E. fell asleep, and

woke up after 2:00 a.m. R.E. panicked and asked if her mom knew where

she was. Appellant reassured R.E. that he had spoken to her mother, and

was taking R.E. to the home of Appellant’s daughter. Eventually, Appellant

declared that he had changed his mind and that he would take R.E. home.

     Appellant drove back to R.E.’s neighborhood, but took the vehicle to

an alley with woods on one side and an abandoned house on the other. R.E.

was scared and opened the door to leave, but Appellant promised that he

would take her home.      R.E. closed the door, and Appellant grabbed her

jacket, causing R.E. to try and leave through the back passenger door. R.E.

screamed for help, but Appellant grabbed her hooded sweatshirt and hair

and told her to “shut the f*** up or I will knock you the f*** out.” N.T. Vol.

I, 6/24-28/16, at 53.     Appellant allowed her to go outside to use the

bathroom, and dragged her back to the vehicle in a headlock. At some point

during these events, Appellant placed something sharp against her neck

which caused pain.

     Back inside the vehicle, Appellant told R.E. to take off her clothes.

Appellant inserted his finger into her vagina and kissed her breasts.      He

pulled his pants down and appeared to pleasure himself.           Eventually,

Appellant told R.E. that he loved her too much and could not “do this.” He

told her to put her clothes on, then drove her home.




                                      -2-
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        R.E. immediately told her mother, who called the police. R.E. went to

a hospital, where a rape kit was performed. Photographs were taken, one of

which depicted a fresh mark where Appellant had pushed the object into her

neck.

        Due to the foregoing, Appellant was charged with unlawful restraint of

a minor, two counts of aggravated indecent assault, simple assault, indecent

assault, attempted rape, terroristic threats, and kidnapping of a minor. The

jury convicted Appellant at all counts. Appellant was thereafter sentenced to

three mandatory minimum sentences of life imprisonment, which applied

due to his two prior convictions for sexual crimes.

        Appellant filed a timely notice of appeal from the denial of his post-

sentence motion.      Appellant complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement, and the court issued an opinion in

response. The matter is ready for review of Appellant’s four claims.

        I.     Was the evidence insufficient as a matter of law to convict
               [Appellant] of aggravated indecent assault, as charged in
               the criminal information, as his accuser, R.E., was not less
               than 13 years of age on the date of the incident?

        II.    Was the evidence insufficient as a matter of law to convict
               [Appellant] of unlawful restraint of a minor as the
               Commonwealth failed to prove beyond a reasonable doubt
               that [Appellant] exposed R.E. to actual risk of serious
               bodily injury[?]

        III.   Did the trial court err by permitting the Commonwealth to
               admit as a prior consistent statement the entire
               videotaped recording of R.E.’s forensic interview where
               admission of the statement served only to duplicate and
               impermissibly bolster R.E.’s in–court testimony?


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      IV.   Are the three mandatory life sentences imposed illegal and
            must they be vacated where (a) the Commonwealth failed
            to prove the fact of [Appellant]’s prior convictions to the
            jury beyond a reasonable doubt and (b) the
            Commonwealth failed to include both the mandatory
            sentencing provision in the formal charging document and
            any allegation of its triggering facts, such that [Appellant]
            was sentenced for aggravated offsenses [sic] that he was
            never formally charged with or convicted of committing?

Appellant’s brief at 6-7.

                                       I

                       Sufficiency of evidence claims

      Appellant’s first claim asserts that the evidence supporting his

conviction for violating 18 Pa.C.S. § 3125, as charged at count three of the

information, was insufficient. Our standard of review is well-settled.

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact[-
      ]finder unless the evidence is so weak and inconclusive that, as
      a matter of law, no probability of fact can be drawn from the
      combined circumstances.




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Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa.Super. 2017)

(quoting Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.

2016)).    For the following reasons, we find that the Commonwealth

presented insufficient evidence to satisfy the felony of the first degree

grading; however, we find that the Commonwealth established evidence of

the lesser-included felony of the second degree charge, and remand for

further proceedings.

                                       A

The evidence was insufficient to establish the grading of aggravated indecent
                   assault as a felony of the first degree

      The language contained in the criminal information is relevant to

Appellant’s argument, which we now quote:

      Count: 3    AGGRAVATED INDECENT ASSAULT                   Felony 1

      The actor engaged in penetration, however slight, of the genitals
      or anus of Jane Doe, a minor, a person less than 13 years of
      age, with a part of the actor’s body for a purpose other than
      good faith medical, hygienic or law enforcement procedures, by
      forcible compulsion or by threat of forcible compulsion that
      would prevent resistance by a person of reasonable resolution in
      violation of Sections 3125(a)(2), (a)(3) and (b) of the
      Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.
      C.S. §3125(a)(2), (a)(3) and (b), as amended.

Criminal Information, 12/23/15, at 2 (emphases added).

      As emphasized, the Commonwealth specified in its charging document

that it intended to prove that R.E. was under thirteen, and that Appellant

violated 18 Pa.C.S. § 3125(a)(2), (a)(3) and (b), graded as a felony of the

first degree. The statutory text is set forth infra. For present purposes, it is

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enough to note that § 3125(b) requires proof that the victim was under

thirteen. The Commonwealth concedes that R.E. was not under thirteen at

the time of the crime.

      Therefore, the question is what relief to grant. Appellant states that

this Court is compelled to discharge the conviction.

      The variance between the Criminal Information and the
      Commonwealth’s proof at trial is fatal to the validity of
      [Appellant]’s conviction for Aggravated Indecent Assault. The
      Commonwealth’s charging scheme required it to prove beyond a
      reasonable doubt that R.E. was less than 13 years of age in
      order for [Appellant] to be convicted of Count 3 - Aggravated
      Indecent Assault, as charged.

      However, the evidence presented at trial demonstrated that R.E.
      was 13 years of age on the date of the alleged incident, not less
      than 13 years of age. . . . The evidence was therefore
      insufficient as a matter of law to sustain [Appellant]’s conviction
      at Count 3. This conviction and sentence must be vacated.

Appellant’s brief at 21 (citation and emphasis omitted).

      The Commonwealth agrees that a number of cases stand for the

proposition that the inclusion of a particular allegation in the charging

document requires the Commonwealth to prove it. See Commonwealth v.

Lambert, 313 A.2d 300, 301 (Pa.Super. 1973) (where Commonwealth

specifically charged corruption of minors by means of furnishing “dangerous

drugs,” the failure to prove that the drugs were dangerous warranted

discharge).   The Commonwealth concedes that it failed to prove R.E. was

less than thirteen. “[T]he evidence showed that the complainant’s thirteenth

birthday was [redacted], and the crimes were committed over a month later


                                     -6-
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in mid-September.”        Commonwealth’s brief at 22.        Nevertheless, the

Commonwealth asserts that the proper remedy is resentencing.              “[T]he

victim was thirteen years old at the time and Appellant should have been

charged at this [c]ount as a second degree felony and not a first degree

felony.” Commonwealth’s brief at 23 (quoting Trial Court Opinion, 3/13/17,

at 5).     The Commonwealth does not develop an argument as to why the

defect is not fatal, but rather “concurs that such relief is appropriate.” Id.

         This case is analogous to Commonwealth v. Kelly, 102 A.3d 1025

(Pa.Super. 2014) (en banc), which involved a prosecution for corruption of

minors, 18 Pa.C.S. § 6301(a)(1)(ii). That statute read, in pertinent part:

         (a) Offense defined.—

         (1)(i) Except as provided in subparagraph (ii), whoever, being of
         the age of 18 years and upwards, by any act corrupts or tends to
         corrupt the morals of any minor less than 18 years of age, or
         who aids, abets, entices or encourages any such minor in the
         commission of any crime, or who knowingly assists or
         encourages such minor in violating his or her parole or any order
         of court, commits a misdemeanor of the first degree.

         (ii) Whoever, being of the age of 18 years and upwards, by any
         course of conduct in violation of Chapter 31 (relating to sexual
         offenses) corrupts or tends to corrupt the morals of any minor
         less than 18 years of age, or who aids, abets, entices or
         encourages any such minor in the commission of an offense
         under Chapter 31 commits a felony of the third degree.

Id. at 1028 (emphasis supplied by Kelly).

         We noted that the Commonwealth proceeded on the felony of the third

degree grading specified at § 6301(a)(1)(ii), not the misdemeanor of the

first degree grading specified at § 6301(a)(1)(i):

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      The Commonwealth filed a criminal complaint on January 24,
      2012, charging [Kelly] with three counts of indecent assault, 18
      Pa.C.S. § 3126(a)(1), (2) and (7), and one count of corruption of
      minors, 18 Pa.C.S. § 6301. Immediately prior to [Kelly]’s non-
      jury trial, the criminal information was amended to reflect
      the felony gradation of the corruption of minors offense,
      18 Pa.C.S. § 6301(a)(1)(ii). The trial was held on August 8,
      2012, and the court found [Kelly] guilty of all counts.

Id. at 1027–28 (emphasis added).

      The bulk of Kelly involved our statutory analysis that a single act did

not qualify as a “course of conduct.” Significantly, Kelly did not discharge

the conviction despite the Commonwealth’s failure to establish that element

of § 6301(a)(1)(ii) as alleged in the information. Kelly, like Appellant herein,

argued that the failure to do so implicated the validity of the conviction. We

disagreed.    “Although [Kelly] directs his claim at the sufficiency of the

evidence supporting his conviction for corruption of minors, his sufficiency

claim actually addresses the grading of the offense of corruption of minors

rather than the offense itself[.]” Id.

      Having established that the Commonwealth failed to prove a course of

conduct, we remanded for resentencing at § 6301(a)(1)(i), notwithstanding

the Commonwealth’s amendment of the criminal information to exclude that

crime. We quote that analysis in full:

      Nevertheless, the evidence was sufficient to support the
      misdemeanor grading of the corruption of minors offense,
      subsection (a)(1)(i), and [Kelly] does not allege otherwise. It is
      “the settled law in Pennsylvania ... that a defendant may be
      convicted of an offense that is a lesser-included offense of the
      crime actually charged.” Commonwealth v. Sims, 591 Pa. 506,
      919 A.2d 931, 938 (2007).

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           A lesser-included offense is a crime having elements
           of which are a necessary subcomponent of elements
           of another crime, the greater offense. The elements
           in the lesser-included offense are all contained in the
           greater offense; however, the greater offense
           contains one or more elements not contained in the
           lesser-included offense.

     Commonwealth v. Reese, 725 A.2d 190, 191 (Pa.Super.1999)
     (quoting Commonwealth v. Blackwell, 436 Pa.Super. 294,
     647 A.2d 915, 927 (1994)).

     Here, the first part of both subsections of 18 Pa.C.S. §
     6301(a)(1) require a defendant to do something that “corrupts
     or tends to corrupt the morals of any minor less than 18 years of
     age....” 18 Pa.C.S. § 6301(a)(1)(i), (ii). In the case of the first
     part of subsection (a)(1)(i), that ‘something’ is “any act....” In
     the case of the first part of subsection (a)(1)(ii), that ‘something’
     is “any course of conduct in violation of Chapter 31....” These
     are not different elements. Rather, the first provision of
     subsection (a)(1)(ii) requires additional elements not required by
     the first provision of subsection (a)(1)(i). As we hold in this
     opinion, one of the additional elements in subsection (a)(1)(ii) is
     that “any course of conduct” requires proof of more than one
     act, whereas subsection (a)(1)(i) only requires a single act.
     Furthermore, subsection (a)(1)(ii) requires that the “course of
     conduct” alleged must constitute one or more Chapter 31
     offenses. Thus, the first provision of subsection (a)(1)(i) is
     a lesser included ‘offense’ of the ‘offense’ defined by the
     first part of subsection (a)(1)(ii).

     As we stated in Reese, “ ‘upon indictment for a particular crime,
     a defendant may be convicted of a lesser offense included within
     that crime.’ As long as conviction is for a lesser-included offense,
     the defendant will have been put on notice of the charges
     against him and can adequately prepare a defense.” Reese, 725
     A.2d at 191 (quoting Commonwealth v. Sewell, 702 A.2d 570,
     571 (Pa.Super.1997)). Here, [Kelly] was charged with the
     offense of corruption of minors, and convicted under the
     felony grading of the offense. Although we conclude that
     there was insufficient evidence of a violation of the felony
     grading of that offense, [Kelly]’s commission of an indecent
     assault against the victim was sufficient evidence of the lesser

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        included crime, that of the misdemeanor grading of corruption of
        minors. Accordingly, we vacate [Kelly]’s entire sentence and
        remand for the trial court to resentence [Kelly] in accordance
        with this opinion. See Commonwealth v. Waters, 988 A.2d
        681 (Pa.Super.2009) (remanding for resentencing on the
        second-degree felony grading of burglary where there was
        insufficient evidence of the first-degree felony grading).

Id. at 1032–33 (emphases added).

        A review of § 3125 establishes that the same principles apply.     The

criminal information charged Appellant with violating “Sections 3125(a)(2),

(a)(3) and (b) of the Pennsylvania Crimes Code[.]”      Criminal Information,

12/23/15, at 2. We now set forth the aggravated indecent assault statutory

text:

         (a) Offenses defined. . . . a person who engages in
        penetration, however slight, of the genitals or anus of a
        complainant with a part of the person’s body for any purpose
        other than good faith medical, hygienic or law enforcement
        procedures commits aggravated indecent assault if:

             (1) the person does so without the complainant’s
             consent;

             (2) the person does so by forcible compulsion;

             (3) the person does so by threat of forcible
             compulsion that would prevent resistance by a
             person of reasonable resolution;

             (4) the complainant is unconscious or the person
             knows that the complainant is unaware that the
             penetration is occurring;

             (5) the person has substantially impaired the
             complainant’s power to appraise or control his or her
             conduct by administering or employing, without the
             knowledge of the complainant, drugs, intoxicants or


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            other means      for   the   purpose   of   preventing
            resistance;

            (6) the complainant suffers from a mental disability
            which renders him or her incapable of consent;

            (7) the complainant is less than 13 years of age; or

            (8) the complainant is less than 16 years of age and
            the person is four or more years older than the
            complainant and the complainant and the person are
            not married to each other.

      (b) Aggravated indecent assault of a child.--A person
      commits aggravated indecent assault of a child when the person
      violates subsection (a)(1), (2), (3), (4), (5) or (6) and the
      complainant is less than 13 years of age.

      (c) Grading and sentences.--

            (1) An offense under subsection (a) is a felony of the
            second degree.

            (2) An offense under subsection (b) is a felony of the
            first degree.

18 Pa.C.S. § 3125.

      Appellant was charged with violating § 3125, convicted of that offense,

and sentenced under the felony of the first degree grading.        That grading

cannot be supported. However, the felony of the second degree offense is a

lesser-included offense that is fully supported by the evidence.




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       Pursuant to Kelly, there is no doubt that violations of § 3125(a)(2) or

(a)(3) are lesser-included offenses of (b). Section (a) defines the offense2 of

aggravated indecent assault, and sets forth eight separate ways in which

that crime is committed.         Subsection (b) states that aggravated indecent

assault of a child is established when the person violates, inter alia,

subsections (a)(2) or (a)(3) and the complainant is less than thirteen years

old. Thus, the underlying (a) violations are included within the definition of

(b), whereas (b) includes the additional requirement that the victim must be

under thirteen.

       Additionally, the grading of the offense is governed by § 3125(c). Any

offense under (a) is graded as a felony of the second degree. 18 Pa.C.S.

§ 3125(c)(1). An offense under (b) is graded as a felony of the first degree.

18 Pa.C.S. § 3125(c)(2).         Thus, the fact that R.E. was thirteen when the

violations of (a)(2) and/or (a)(3) were committed means only that the

Commonwealth failed to establish that the victim was under thirteen as

required by § 3125(b). Accordingly, the grading of the offense as specified

by § 3125(c)(2) is unsupported.            The grading set forth at § 3125(c)(1),

however,     has    been    met,    and    Appellant   does   not   argue   that   the

Commonwealth failed to establish that he committed the underlying (a)(2)
____________________________________________


2 As in Kelly, we are here concerned with “lesser included” offenses as
applied to the same statutory crime, i.e., aggravated indecent assault. This
is not a situation wherein we are substituting an entirely different crime;
e.g., simple assault in place of aggravated assault.



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and/or (a)(3) offenses.3         Pursuant to Kelly, we vacate the judgment of

sentence at that count and remand for further proceedings consistent with

this disposition.4

____________________________________________


3R.E.’s testimony that he held a sharp object to her throat and dragged her
back to the vehicle, and inserted his finger into her vagina, establishes that
he “engage[d] in penetration . . . of the genitals . . . by forcible compulsion”
or “by threat of forcible compulsion that would prevent resistance[.]”
Therefore, the evidence clearly sufficed to establish violations of (a)(2)
and/or (a)(3).

4  Appellant’s reply brief argues, for the first time, that he cannot be
sentenced at this count because he was separately convicted at count two of
violating 18 Pa.C.S. § 3125(a)(8). According to Appellant, sentencing him at
both counts is illegal under Commonwealth v. Owens, 649 A.2d 129, 137
(Pa.Super. 1994), which analyzed 18 Pa.C.S. § 3126. That crime, like the
instant aggravated indecent assault statute, used the word “or” to offset
alternative bases of liability. Owens concluded that the defendant could
only be sentenced “for one episode of indecent assault.” Id. at 139.
Owens was based on Commonwealth v. Shannon, 608 A.2d 1020 (Pa.
1992), a plurality decision, which concluded that the Legislature’s use of “or”
to offset different ways in which that crime is committed “reveals a design to
proscribe the same harm[.]” Id. at 1024. Hence, multiple convictions for
violations of the same criminal statute, albeit at separate subsections, could
not stand.

Notably, Shannon predates Commonwealth v. Anderson, 650 A.2d 20
(Pa. 1994), and the enactment of 42 Pa.C.S. § 9765, effective February 7,
2003, which states that “No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of the other
offense.” In Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009), our
Supreme Court noted “This Court’s pre-Section 9765 jurisprudence
characterized the merger doctrine as, first and foremost, a rule of statutory
construction.” Id. at 835. Shannon’s conclusion was based on “the fair
import of the statute’s terms[.]” Shannon, supra at 1024.

Appellant does not discuss any of these later precedents, nor does his brief
cite 42 Pa.C.S. § 9765. We do not have the benefit of the Commonwealth’s
(Footnote Continued Next Page)


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                                               B

  The Commonwealth established the crime of unlawful restraint of a minor

      Appellant’s second issue is that the evidence was insufficient to

establish the offense of unlawful restraint of a minor. Appellant was charged

under the following subsection:

      (b) Unlawful restraint of a minor where offender is not
      victim’s parent.--If the victim is a person under 18 years of
      age, a person who is not the victim’s parent commits a felony of
      the second degree if he knowingly:

             (1) restrains another unlawfully in circumstances
             exposing him to risk of serious bodily injury[.]

18 Pa.C.S. § 2902(b).

      The only element at issue is whether the Commonwealth proved that

Appellant “restrain[ed] another unlawfully in circumstances exposing [her]

to risk of serious bodily injury.” Citing Commonwealth v. Schilling, 431

A.2d 1088 (Pa.Super. 1981), Appellant notes that we have held that the

Commonwealth must establish that “the defendants put another in actual

danger of serious bodily injury.”        Id. at 1092.   Appellant argues that the

Commonwealth failed to do so under Schilling, which we now examine.

      Therein, Schilling pressured his date for sex after driving her to a rural

area in his vehicle.       When the victim declined and asked to go home,
(Footnote Continued) _______________________

position on this issue, nor will we do Appellant’s work of fashioning an
argument on his behalf. Thus, we decline to hold that Appellant cannot be
separately sentenced at this count.



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Schilling “suddenly pulled out a pistol from the glove compartment of his car

and placed it to the [victim]’s left temple. Out of fear for her life, she agreed

to comply[.]” Id. at 1090. Schilling placed the gun in the backseat and had

oral sex with the victim. The weapon turned out to be a pellet gun that used

CO2 cartridges. We reversed the unlawful restraint conviction based on an

analysis of the same statutory language at issue herein:

      In [Commonwealth v. Trowbridge, 395 A.2d 1337 (Pa.Super.
      1978)], this Court noted that with respect to the crime of
      recklessly endangering another person that mere apparent
      ability to inflict harm is not enough to support a conviction for
      this crime. It was held that an actual danger of harm must be
      shown. Although Trowbridge did not deal with the same crime
      we have here, it is important with respect to the fact that the
      Commonwealth had to prove an actual danger of serious bodily
      injury with regard to the pointing of an air rifle. In Trowbridge
      we held that the Commonwealth must prove either that the gun
      was loaded or that the surrounding circumstances were
      inherently dangerous in order to sufficiently show an actual
      danger of serious bodily injury. As was the case in Trowbridge,
      the Commonwealth here has not proven that the gun was
      loaded. Quite to the contrary, appellant Schilling testified that
      the gun was not loaded. Moreover, we cannot say that the
      circumstances surrounding Mr. Schilling’s actions were so
      inherently dangerous that he nevertheless exposed the
      prosecutrix to an actual danger of serious bodily injury despite
      the fact that the gun was unloaded. Thus, the evidence was not
      sufficient to support a conviction under the subsection of
      unlawful restraint with which Mr. Schilling was charged.

Id. at 1092.

      Appellant reasons that the evidence establishing an actual danger is

even more lacking in this case, because Schilling involved an actual weapon

whereas here R.E. could not identify what the sharp object pressed to her

neck was. According to Appellant, while R.E. “felt something sharp on her

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neck or underneath her chin . . . R.E. was never able to determine what was

causing this sensation.”     Appellant’s brief at 24-25.     Appellant claims that

the Commonwealth failed to establish the circumstances “were any more

inherently dangerous than the circumstances in Schilling such that

[Appellant]’s actions nevertheless exposed R.E. to serious bodily injury in

the   absence   of   a    weapon.”    Id.   at     25   (emphasis   added).     The

Commonwealth, on the other hand, notes that our standard of review

requires all inferences to be drawn in its favor as verdict winner, and that

R.E. testified that Appellant used some type of sharp object.

      We find that the Commonwealth established that the surrounding

circumstances were inherently dangerous.            R.E. testified that the object

Appellant used was sharp, and the object left a visible mark as established

by the pictures taken at the hospital later that morning.              Additionally,

Appellant forced R.E. back into his vehicle by placing her in a headlock. In

Commonwealth         v.    Melvin,   572    A.2d    773   (Pa.Super.   1990),    we

distinguished Schilling as follows:

      It is no small distinction, however, that appellant in the instant
      case did not use an air gun but a sawed-off shotgun which is
      inherently more dangerous. Moreover, we find the second part of
      the analysis has been met in that appellant subjected his two
      victims to circumstances which were inherently dangerous.
      Forcing Mr. Ianuale to drive a car at gunpoint to hunt down a
      man named Rick, who earlier had shot at appellant, was
      sufficient proof of inherently dangerous circumstances showing
      appellant had placed the victims in danger of serious bodily
      harm.

Id. at 775.

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      Melvin is more akin to these factual circumstances than Schilling, as

this case involves much more than merely pointing a weapon at the victim’s

body. Appellant inflicted actual injury when R.E. attempted to flee. He held

a sharp object to her throat and he told her to “shut the f*** up,”

suggesting that further noncompliance would result in violence. The incident

occurred after 2:00 a.m. in a remote location. Moreover, Appellant ignores

the disparity in size and age between himself and the thirteen-year-old

victim.   All of these factors are relevant to whether the surrounding

circumstances were inherently dangerous.         In Commonwealth v. McBall,

463 A.2d 472 (Pa.Super. 1983), we stated:

      The court did not err in refusing to grant defendant’s demurrer
      to the charge of unlawful restraint. The terrified victim was
      certainly exposed to serious injury. She was pulled, grabbed by
      the neck and held down. He repeatedly threatened to kill her. He
      pushed and shoved her. He disrobed and raped her. The
      defendant was 5′8″, weighed 225 pounds and was an Olympic
      class weight lifter. The victim was 5′2″ and weighed less than
      100 pounds. The complaint is clearly without merit.

Id. at 474.

      Taking   these   facts   together,    we   find   that   the   Commonwealth

established inherently dangerous circumstances and this challenge fails.

                                       II

                               Evidentiary claims

    Evidentiary challenge to introduction of a prior consistent statement




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       Appellant’s third claim is that the trial court erred in permitting the

Commonwealth to play, as a prior consistent statement, a forensic interview

between R.E. and an unidentified party.5 This video was played to the jury

over Appellant’s objection, albeit with certain items redacted per the

Commonwealth’s agreement that those items were inadmissible.

       “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).           Rule of Evidence 613(c) specifically

governs the admission of a prior consistent statement for rehabilitative

purposes.

       (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).
____________________________________________


5 The trial court’s opinion states that the interview was given the day after
the assault. See Trial Court Opinion, 3/13/17, at 4.



                                          - 18 -
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      We agree that the trial court erred. However, we find that the error

was harmless beyond a reasonable doubt.

                                      A

                Per se admission was an abuse of discretion

      The trial court opined that R.E.’s prior consistent statements were per

se admissible not for rehabilitation, as required by Rule 613, but for

corroboration, as indicated in its Rule 1925(a) opinion:

      Next, Appellant alleges that this Court abused its discretion in
      permitting the Commonwealth to admit the victim’s forensic
      interview video as a prior consistent statement. Appellant further
      alleges that this Court abused its discretion in admitting the
      forensic interview because it duplicated the accuser’s testimony
      and was unfairly prejudicial. When offered for the truth of the
      matter asserted therein, prior consistent statements are usually
      inadmissible hearsay. However, when offered to corroborate in-
      court testimony, a prior consistent statement is not hearsay.
      Commonwealth v. Willis, 552 A.2d 682, 691 (Pa. Super.
      1988).

            ....

      See also Commonwealth v. Hunzer, 868 A.2d 498 (Pa.Super.
      2005).

      Appellant argues that prior consistent statements are only
      admissible in rebuttal to show that a witness is fabricating their
      testimony as a result of a corrupt motive. This claim lacks merit.
      The exceptions defined by the Superior Court include child
      victims of sexual assault and does not require prior
      impeachment. Id. The forensic interview falls within this
      exception, and this Court did not abuse its discretion by
      admitting the tape.

      The witness, thirteen[-]year[-]old [R.E.], made a prior consistent
      statement in a forensic interview conducted the day after the
      assault.

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Trial Court Opinion, 3/13/17, at 4.

      The trial court’s analysis primarily drew from Commonwealth v.

Willis, 552 A.2d 682, 691–92 (Pa.Super. 1988) (en banc), which does

contain language suggesting, but not holding, that admitting prior consistent

statements under these circumstances is always permissible. The trial court

quoted, inter alia, the following:

      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.

      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.

      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. . . .

      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

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       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, emphasis in original).

       Willis therefore suggests that the admission of prior consistent

statements of “even unimpeached testimony of child witnesses” is proper, at

least under a framework that considers the objection as grounded in

hearsay. However, a holding must be interpreted in the context of its facts,

Commonwealth v. McCann, 478 A.2d 883, 884 (Pa.Super. 1984), and

Willis involved statements by an eight-year-old child.      The instant case

involves a thirteen-year-old, who, while still a child, cannot in our view be

presumed to share the same characteristics of “fantasy, exaggeration,

suggestion, or decay of the original memory” that apply to an eight-year-

old.

       More importantly, we note that Willis discussed the admissibility of

prior consistent statements as an exception to hearsay, and explained why

such statements are not offered for their truth.    Willis therefore did not

address the fact that Pa.R.E. 613 is not an exception to hearsay but rather a




                                   - 21 -
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separate rule of evidence.6 This omission is explained by the fact that Willis

predated the enactment of the Rules of Evidence in this Commonwealth.

Therefore, we find that Willis does not support the trial court’s broad view

of the admissibility of the instant statements.

        This point was briefly addressed in Hunzer, supra, also cited by the

trial court in support, which likewise does not support the trial court’s per se

view. In Hunzer, the defendant was convicted of sexual assault of his then

three-year-old      daughter,    who     was   six    at    the   time   of   trial.    The

Commonwealth called a caseworker for Children and Youth Services who had

interviewed the victim on three occasions.                 Hunzer’s cross-examination

explored the content of those prior statements as inconsistent with the

victim’s   trial   testimony.       On    redirect,   the    trial   court    allowed   the

Commonwealth to elicit testimony regarding the victim’s prior consistent

statements.        Hunzer claimed that the admission of the statements was

erroneous, and argued that Willis was not controlling as it predated Pa.R.E.

613.

       The Hunzer Court, like the trial court herein, quoted large portions of

Willis, including the quote “Prior consistent statements may therefore be

admitted to corroborate even unimpeached testimony of child witnesses[.]”
____________________________________________


6Recorded statements may, of course, be admissible on other grounds. See
Pa.R.E.   803.1(3)     (recorded   recollection   exception  to hearsay);
Commonwealth v. Shelton, 170 A.3d 549 (Pa. 2017) (upholding
admission of forensic interview pursuant to that exception).



                                          - 22 -
J-A02003-18


Id. at 512 (quoting Willis).   The Hunzer Court nevertheless determined

that the statement was admissible because of the degree to which the

victim’s testimony was impeached. Id. at 513. Thus, Hunzer did not rely

on Willis.

     Notably, Hunzer appeared to accept the continuing vitality of Willis

even following the enactment of Pa.R.E. 613.       As this Court stated in

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

13, 2018), a case decided following submission of briefs in this matter, the

view set forth by Willis/Hunzer regarding the introduction of prior

consistent statements for purely corroborative purposes

     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.

Id. at *4 (footnote omitted).       We followed that analysis with this

observation:

     We are cognizant that a three-judge panel of this Court is not
     free to overrule the decision of a previous three-judge panel. Our
     result therefore does not affect the precedential value
     of Hunzer. As explained in the main text, the Hunzer Court
     found a prior consistent statement admissible because it
     rebutted an allegation of recent fabrication. Hunzer is therefore
     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.

                                   - 23 -
J-A02003-18



Id. at n.4.

      Bond, as discussed infra, involves the introduction of prior consistent

statements for purposes of rehabilitation, not corroboration.      The case,

however, clearly discredits the corroboration rationale.   For the foregoing

reasons, we find that the trial court abused its discretion in admitting the

evidence for purely corroborative purposes.

                                      B

       Statements were not admissible to rebut a claim of fabrication

      In the alternative, the Commonwealth argues that admission of the

statement would have been admissible to rebut actual impeachment.

      [T]he principal reason for allowing prior consistent statements
      into evidence is when a witness had been impeached, expressly
      or impliedly, with faulty memory or as having been induced to
      fabricate the testimony by improper motive or influence.
      Although the court below did not express this as a reason for its
      decision, it certainly applies in this case. Here, the defense
      attorney began explicitly calling the victim a liar in his opening
      speech. Later, on cross-examination, he directly asked the
      victim whether she had lied under oath. Defense counsel also
      tried to impeach the victim on: (1) the alleged contradiction
      between her preliminary hearing testimony and her trial
      testimony about whether the back seats in appellants car were
      up or down; (2) whether she was fabricating answers about
      there [being] streetlights in the place where she was assaulted
      based on the alleged contradiction between preliminary hearing
      and trial testimony ()() [sic].       In sum, defense counsel
      attempted to impeach the victim’s memory, veracity, accuracy
      and motives. All of this impeachment occurred prior to the
      playing of the video; unquestionably, therefore, it was relevant
      to rehabilitate the victim’s testimony. Thus, the video was
      admissible under the exception concerning impeachment and
      subsequent rehabilitation.


                                    - 24 -
J-A02003-18


Commonwealth’s brief at 41-42 (citations omitted).

       This analysis accounts for Pa.R.E. 613. However, we disagree that the

evidence was admissible under this theory.7 In Bond, supra, the appellant

argued that the trial court “erred in permitting the jury to see a video of

Child’s forensic interview . . . with Philadelphia Children’s Alliance[.]” Id. at

*1.   The trial court “did so at the Commonwealth’s request after defense

counsel cross-examined Child extensively with regard to the substance of

the interview depicted in the video.” Id. at *2.

       Bond extensively discussed Commonwealth v. Baker, 963 A.2d 495

(Pa.Super. 2008).       Therein, we upheld the admission of a DVD of a child

victim’s interview with a doctor as a prior consistent statement.            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
____________________________________________


7 While the Commonwealth correctly notes that we may affirm on any basis,
the Commonwealth acknowledges that the trial court did not admit the
evidence on this ground. Its argument therefore invokes the “right for any
reason” doctrine. See Commonwealth v. Fant, 146 A.3d 1254, 1265,
n.13 (Pa. 2016) (“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.”).



                                          - 25 -
J-A02003-18


fabricate her testimony.” Id. at 505. The trial court admitted the interview,

and we affirmed.

     Bond distinguished Baker by noting the interview in Baker preceded

the alleged fabrication of the in-court testimony. That was not the case in

Bond:

     While the Interview Video antedated Child’s cross-examination at
     trial, it did not antedate the alleged motive to lie, which
     Appellant claims arose before she first complained of the assault.
     Put simply, Child’s statements in the Interview Video were not
     “made before” the alleged fabrication, as Rule 613(c)(1)
     expressly requires.

Bond, supra at *4 (footnote omitted).

     The same logic controls herein. While defense counsel asserted that

R.E. was lying, the forensic interview statements did not precede the alleged

fabrication or motivation to lie. The Commonwealth’s point that the forensic

interview preceded the trial testimony therefore misses the mark.         Id.

(rejecting the admission of prior consistent statements on theory that

defense “accused Child of fabricating her accounts ‘on an ongoing basis’”).

     Finally, the Commonwealth’s claim that introducing the prior consistent

statement was permissible to rebut the fabrication would, if correct, only

permit the Commonwealth to introduce those portions of the statement

which bore directly on the particular areas of impeachment. “It is generally

required, however, that any corroboration offered, including prior consistent

statements, be related to the impeachment they are to deny, rebut, or




                                    - 26 -
J-A02003-18


explain[.]” Willis, supra at 692. Thus, the Commonwealth’s theory cannot

justify what happened at trial.

                                          C

                 Error was harmless beyond a reasonable doubt

      While we find that the trial court erred, we do not find that Appellant is

entitled to a new trial since 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)).                  We find

that the second possibility applies.

      Preliminarily, we note that the Commonwealth did not raise this issue.

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.   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
      contributed to the verdict, and that it does not offer a harmless
      error argument in its brief. Nonetheless, an appellate court may


                                        - 27 -
J-A02003-18


       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).               We may therefore reach the issue

notwithstanding the Commonwealth’s failure to raise it.8

       Turning to whether this error was actually harmless, a primary

criticism against the introduction of prior consistent statements is that such

evidence is cumulative.


____________________________________________


8In Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017) (OAJC), Justice
Wecht’s dissenting opinion observed:

       In this case, the Commonwealth has never invoked the harmless
       error doctrine. Ordinarily, this might raise the question of
       whether the Commonwealth must invoke the doctrine before we
       may apply it. Generally, I adhere to our precedential declaration
       that “this Court may affirm a judgment based on harmless error
       even if such an argument is not raised by the
       parties.” Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d
       163, 182 (2012). However, there is apparent tension between
       that principle and the well-settled rule that the “Commonwealth
       bears      the     burden     of      demonstrating     harmless
       error.” Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501,
       521 (2005). Although I believe that we can apply the doctrine
       without prior invocation, it seems inconsistent to assign to a
       party a burden of proof that is applicable only in appellate
       proceedings, while determining simultaneously that the party
       has satisfied that burden without the party raising or addressing
       the doctrine in any way. Nonetheless, in light of the
       Commonwealth’s unequivocal abandonment of the harmless
       error claim here, any tension between these principles can (and
       should) be resolved in another case.

Id. at 1158 n.1 (Wecht, J., dissenting). Justice Baer also filed a concurring
opinion discussing sua sponte invocation of harmless error. Id. at 1139-41
(Baer, J., concurring).



                                          - 28 -
J-A02003-18


      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).

      Presently, there is little danger of “fraudulently manufacture[d]”

evidence in the sense that the prior consistent statement was recorded and

played to the jury. This is thus not a case where the jury heard a third party

witness relating R.E.’s own words.     Moreover, Appellant does not suggest

that the contents of the statements exceeded the scope of what R.E.

testified to before the jury. See 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.”).

      Instead, Appellant argued that he was prejudiced because the

interview “bolster[ed] [R.E.]’s credibility by demonstrating that she had told

a version of events consistent with her trial testimony more often than she

                                     - 29 -
J-A02003-18


told the inconsistent version[.]” Appellant’s brief at 33. That is an assertion

that Appellant was prejudiced by the cumulative nature of that evidence.

We disagree. The jury heard from R.E. under oath and their fundamental

task was to weigh the credibility of her story against that of Appellant, who

testified in his own defense.    While we agree that our evidentiary rules

prefer to avoid prior consistent statements, as set forth at length supra, we

do not believe that the jury would be unduly swayed by the knowledge R.E.

previously related the same story. Indeed, the jury presumptively assumed

that was the case.   See Commonwealth v. Hutchinson, 556 A.2d 370,

372 (Pa. 1989) (“Ordinarily, that one has always said the same thing is

subsumed in their testimony and need not be buttressed by evidence of prior

consistency[.]”) Thus, while there was no need to buttress her testimony,

the recorded statement was merely cumulative and harmless beyond a

reasonable doubt. Appellant is therefore not entitled to a new trial despite

the error.

                                     III

                             Sentencing claim

      Finally, Appellant alleges that his sentence of lifetime imprisonment is

illegal. Appellant received that mandatory sentence pursuant to 42 Pa.C.S.

§ 9718.2, which states:

      (a) Mandatory sentence.--

             ....


                                    - 30 -
J-A02003-18


            (2) Where the person had at the time of the
            commission of the current offense previously been
            convicted of two or more offenses arising from
            separate criminal transactions set forth in section
            9799.14 . . . the person shall be sentenced to a term
            of life imprisonment, notwithstanding any other
            provision of this title or other statute to the contrary.
            Proof that the offender received notice of or
            otherwise knew or should have known of the
            penalties under this paragraph shall not be required.

42 Pa.C.S. § 9718.2.

      Appellant does not claim that his prior convictions did not qualify for

purposes of this statute.    Rather, he asserts that the instant statute is

unconstitutional under Alleyne v. United States, 570 U.S. 99 (2013),

which held that any fact that increases the penalty for a crime is considered

an element of the crime, and must be found beyond a reasonable doubt by

the factfinder.

      We disagree. Applying a mandatory minimum sentence on the basis

of prior convictions has been understood as an exception to Alleyne. Id. at

111 n.1 (citing Almendarez–Torres v. United States, 523 U.S. 224

(1998)). See Commonwealth v. Resto, 179 A.3d 18, 21 n.1 (Pa. 2018)

(OAJC) (“This case does not concern previous convictions considered as

aggravation at sentencing. Notably, under prevailing federal jurisprudence,

such prior convictions are not treated as a type of fact implicating Alleyne.)




                                     - 31 -
J-A02003-18


(citation omitted, emphasis in original). Therefore, we reject Appellant’s

challenge to his sentence.9

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2018




____________________________________________


9 Appellant notes that these precedents bind this Court and “advances this
argument . . . as a matter of issue preservation.” Appellant’s brief at 38 n.5.



                                          - 32 -
