Commonwealth v. Raboin, T., Aplt.

[J-104-2020] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 9 WAP 2020

:

Appellee : Appeal from the Order of the

: Superior Court entered August 29,

: 2019 at No. 976 WDA 2018

v. : affirming the Judgment of Sentence

: of the Court of Common Pleas of

: Allegheny County entered June 11,

THOMAS AUGUST RABOIN, : 2018 at No. CP-02-CR-0009844-

: 2017.

Appellant :

: ARGUED: December 2, 2020

CONCURRING AND DISSENTING OPINION

JUSTICE DONOHUE DECIDED: SEPTEMBER 7, 2021

The trial court permitted the Commonwealth, in the rebuttal stage of trial, to play

substantial portions of a videotaped interview between a forensic specialist and the child

victim (“A.W.”). I agree with the Majority that Pennsylvania Rule of Evidence 106,

colloquially known as the rule of completeness, does not justify admission of this evidence

but concur because in my view Raboin’s cross-examination of his accuser did not create

any misleading or otherwise prejudicial misimpression as required by the rule. I disagree

with the Majority that the appropriate course is to remand to the Superior Court to

determine whether this evidence was admissible as a prior consistent statement pursuant

to Rule 613. In the appeal to the Superior Court, the Commonwealth declined to defend

the admission of the evidence on that alternative ground despite the fact that the trial

court initially relied on it. The Commonwealth argued, both in the Superior Court and in

this Court, only that Rule 106 applies, and, in the alternative, that any error in introducing

the evidence was harmless beyond a reasonable doubt. In my view, the trial court erred

by permitting the Commonwealth to play the forensic interview of the child witness and

that playing the interview in rebuttal, among other reasons, rendered the error not

harmless beyond a reasonable doubt. I would thus grant a new trial.

I.

Rule 106 does not apply because counsel did not mislead the jury in the manner

contemplated by the rule

The Commonwealth argues that Rule 106 would have independently justified the

admission of the videotape due to counsel’s cross-examination of A.W. and a detective,

which if correct means that the evidence was not erroneously introduced. The rule of

completeness ensures that a party does not convey a misleading impression. A common

method of challenging a witness’s testimony is by showing they previously said something

different than their testimony. Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (“Use of

such impeachment on cross-examination … test[s] the credibility of witnesses by asking

them to explain prior inconsistent statements and acts.”). Rule 106 ensures that

impeachment does not omit crucial context. “If a party introduces all or part of a writing

or recorded statement, an adverse party may require the introduction, at that time, of any

other part--or any other writing or recorded statement--that in fairness ought to be

considered at the same time.” Pa.R.E. 106.

I agree with the Majority that Rule 106 does not justify introducing this evidence.

However, the Majority suggests that playing the videotape, or at least the undefined

[J-104-2020] [MO: Mundy, J.] - 2

portions which would have been relevant based on an actual Rule 106 claim,1 would have

been proper “at or near the time of defense counsel’s questioning of the victim or the

detective.” Majority Op. at 18. While I agree with the timing requirement, in my view,

Rule 106 has no applicability under the circumstances presented.

As the Majority explains, the trial judge did not cite Rule 106.2 Insofar as the rule

is designed to ensure fairness, the Commonwealth’s argument that the videotape was

needed to combat a misleading impression obviously escaped the notice of its prosecutor,

who perceived no such need. The Majority attempts to determine if the admission of

evidence would have been justifiable for equitable reasons as opposed to legal reasons,

something that the right-for-any-reason doctrine seems ill-equipped to do. See

Commonwealth v. Bryant, 57 A.3d 191, 196 n.6 (Pa. Super. 2012) (acknowledging that

1 As Raboin notes, the procedural posture of this case presents analytical difficulties

because the party invoking Rule 106 bears the burden of showing how the material is

relevant. See Commonwealth. v. Bryant, 57 A.3d 191, 196 (Pa. Super. 2012) (concluding

that trial court did not err in excluding other pages of victim’s diary; “The burden is on

Appellant to specify what the relevancy of the rest of the diary would have been and how

it would have aided the jury's understanding.”).

2 “In admitting the statements, the Court relied upon Commonwealth v. Willis, 552 A.2d

682, 691 (Pa. Super 1988) [(en banc)] and Commonwealth v. Hunzer, 868 A.2d 498 (Pa.

Super. 2005).” Trial Court Opinion, 11/14/2018, at 9. Broadly speaking, those cases

endorsed the notion that fact-finders would see children as inherent fabulists and prone

to flights of fancy and exaggeration, thereby permitting the introduction of prior consistent

statements “to corroborate even unimpeached testimony of child witnesses[.]” Willis, 552

A.2d at 692. Hunzer approvingly quoted Willis in allowing similar evidence.

Two days after Raboin’s sentencing, the Superior Court issued Commonwealth v. Bond,

190 A.3d 664 (Pa. Super. 2018), which limited Willis on the grounds the opinion pre-dated

the enactment of Rule 613. The Bond Court explained that Hunzer’s reliance on Willis

was dicta as the prior statements were admissible under the facts of Hunzer to rebut an

allegation of recent fabrication. The trial court concluded that the Bond decision

established its evidentiary ruling was erroneous and “assert[s] that the harmless error

doctrine applies.” Trial Court Opinion, 11/14/2018, at 10.

[J-104-2020] [MO: Mundy, J.] - 3

completeness objections are “subject to the trial court’s discretionary authority to

determine the scope and limits of the right in the case at hand”) (quotation marks and

citation omitted). Because the prosecutor did not invoke the rule of completeness, it is

difficult if not impossible to determine what “fairness” demanded. Nevertheless, I accept

for purposes of disposition that the right-for-any-reason doctrine would allow a court to

affirm.

However, I conclude that Rule 106 does not apply, because counsel’s cross-

examination did not create the conditions contemplated by the rule. By way of

comparison, the United States Supreme Court’s decision in Beech Aircraft Corp. v.

Rainey, 488 U.S. 153 (1988), offers an example of why Rule 106 exists. That suit involved

an airplane crash, where “the only seriously disputed question was whether pilot error or

equipment malfunction had caused the crash.” Id. at 157. The defense called an

individual as an adverse witness, who admitted that he had authored a letter agreeing

with certain facts pointing to pilot error. On cross-examination, plaintiff’s counsel

attempted to ask about other portions of the letter establishing that the witness

nonetheless believed an equipment malfunction was to blame. The trial court sustained

an objection by defense counsel that the question improperly called for an opinion.

The high Court observed that “the concerns underlying Rule 106 are relevant here,

but, as the general rules of relevancy permit a ready resolution to this litigation, we need

go no further in exploring the scope and meaning of Rule 106.”3 Id. at 172. The Court

said, “We have no doubt that the jury was given a distorted and prejudicial impression of

[the] letter. The theory … was that the accident was the result of a power failure, and,

3 Pennsylvania’s Rule 106 is “identical to F.R.E. 106.” Pa.R.E. 106 cmt.

[J-104-2020] [MO: Mundy, J.] - 4

read in its entirety, his letter … was fully consistent with that theory.” Id. at 170. The

Court further explained that the misleading cross-examination plausibly conveyed to the

jury that the witness “did not believe in his theory of [malfunction] and had developed it

only later for purposes of litigation.” Id. at 171.

There was no comparably discernable misleading impression of the forensic

interview that the Commonwealth needed to address. According to the Commonwealth,

the jury might have been left with the impression that A.W. was not telling the truth. See

Commonwealth’s Brief at 11 (“Regardless, given that the prosecution was attempting to

counter the insinuations made by defense counsel … that the victim’s accusations against

Raboin were untrue … .”); id. at 27 (arguing that defense counsel “created in the minds

of the jurors the suggestion that there was something about that interview that called into

doubt the allegations that the victim had made from the witness stand.”). At the risk of

stating the obvious, the entire point of this criminal trial was to determine if the victim’s

accusations were true. This case presented the jury with a straightforward task of

determining whether A.W., the only fact witness with any direct knowledge of these

crimes, credibly testified that Raboin sexually assaulted her. Any cross-examination of

A.W. is by definition insinuating that the victim’s accusations are untrue. That is defense

counsel’s constitutional duty. The Commonwealth’s position, taken to its logical end,

means that the rule of completeness permits the introduction of any kind of prior statement

that corroborates, in any sense, the “accusations” against a defendant.4

4 As Raboin observed at oral argument, Rule 106 is rarely invoked in criminal cases.

This may be because, as Raboin briefly references, a defendant has the right to confront

his accuser. See, e.g., Crawford v. Washington, 541 U.S. 36, 61 (2004) (“Where

testimonial statements are involved, we do not think the Framers meant to leave the Sixth

[J-104-2020] [MO: Mundy, J.] - 5

Significantly, the Commonwealth fails to specify how the jury was misled by the

questioning beyond suggesting that Raboin was not guilty, let alone how the videotape

cured those prejudicial misimpressions. The Beech Aircraft Court pointed to a quite

specific kind of misimpression: the jury would come away thinking that the witness had

previously adopted a completely different opinion than the one he testified to, and that he

later came up with an alternative theory solely for purposes of litigation. To put this case

in Beech Aircraft terms, the cross-examination would need to convey that A.W. told the

forensic interviewer that she was never sexually abused by Raboin and only later leveled

the accusations for some other reason. The Commonwealth does not claim that is the

case. Nor could it. Certainly, if Raboin had asked a clearly misleading question the

Commonwealth would cite that. The exceedingly generic description of “misleading” cited

by the Commonwealth and accepted by the Majority is simply incompatible with the

purpose of Rule 106.5 As a result, I concur only in the disposition.

Amendment's protection to the vagaries of the rules of evidence, much less to amorphous

notions of ‘reliability’”); In re N.C., 105 A.3d 1199, 1214 (Pa. 2014) (“It is undisputed that

A.D.'s video-taped, forensic interview conducted at Western Pennsylvania Cares was

testimonial under Crawford and its progeny[.]”).

5 For example, in Commonwealth v. Giles, 182 A.3d 460 (Pa. Super. 2018), the victim

was cross-examined regarding her forensic statement. Defense counsel asked, “Now,

do you remember when you were interviewed by Dr. Susan Nathan, you told her that the

first incident occurred in July?” Id. at 462. The victim said, “No,” followed by counsel

stating, “You don’t remember that?” That cross-examination was clearly misleading. “We

point out that nowhere in the transcript of the forensic interview does [the victim] ever

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

And while the issue in that case was whether the forensic interview was admissible as a

prior consistent statement, it is telling that the Commonwealth fails to cite a comparable

example of cross-examination that blatantly misrepresented what the witness actually

said.

[J-104-2020] [MO: Mundy, J.] - 6

II.

Rule 613 does not justify admission of the entire videotape

The Majority agrees that the trial court erred in admitting the evidence and further

determines that introducing the evidence was not harmless beyond a reasonable doubt.

Majority Op. at 19 (“Given these clear violations of Rule 106 and its purpose, we decline

to find the trial court’s error in this respect harmless.”). That statement does not explain

why the Majority is unconvinced that the error was not harmless, because the purpose of

a rule is not a factor in a harmless error analysis. See Commonwealth v. Story, 383 A.2d

155, 164 (Pa. 1978) (“We adopt the standard that an error cannot be held harmless unless

the appellate court determines that the error could not have contributed to the verdict.”).

The Majority therefore envisions a scenario in which this evidence, while deemed

erroneously admitted under Rule 106 and not harmless beyond a reasonable doubt under

that rule, may simultaneously be admissible under Rule 613 (and therefore not introduced

erroneously at all).6

Instead of remanding, I would simply address the Rule 613 question. The Superior

Court is in no better position to address its applicability, and the Commonwealth declined

to address Rule 613 before this Court. Additionally, in its Superior Court brief the

Commonwealth agreed that Rule 613 does not apply under governing Superior Court

precedent:

6 In this respect the Majority appears to direct the Superior Court to determine if the “right-

for-any-reason” doctrine applies. See, e.g., Justice Thomas G. Saylor, Right for Any

Reason: An Unsettled Doctrine at the Supreme Court Level and an Anecdotal Experience

with Former Chief Justice Cappy, 47 Duq. L. Rev. 489, 491–92 (2009) (explaining, as a

hypothetical example, that the doctrine may be employed to affirm a trial court’s hearsay

ruling by substituting the correct hearsay exception on appeal).

[J-104-2020] [MO: Mundy, J.] - 7

[A]ny motive that A.W. would have had to lie about the actions

that she attributed to Raboin would have existed at the time

that she submitted to the forensic interview. Therefore, it

would appear that Judge Rangos, as outlined in Bond, was

not justified in admitting the video as a prior consistent

statement to rehabilitate the victim.

Commonwealth’s Brief, 976 WDA 2018, at 18 (footnote omitted).

I see no reason to further delay disposition of this case. Indeed, the Superior Court

will be bound to follow its Bond precedent, and I would explicitly endorse the Bond Court’s

prior consistent statements analysis. See Bond, 190 A.3d at 667-70. Finally, both parties

have already briefed whether the error is harmless beyond a reasonable doubt. We

should thus decide that issue based upon the traditional harmless error analysis

articulated in Story.

In my view, the evidence was not admissible as a prior consistent statement. While

the trial court ruled that the evidence was admissible on this ground, see supra note 2, it

later conceded that it erred in admitting this evidence and determined that its error was

harmless beyond a reasonable doubt. Because the ultimate question is whether the trial

court’s judgment will be affirmed, I briefly address that issue.

The Rule states, in pertinent part:

(c) Witness's Prior Consistent Statement to Rehabilitate.

Evidence of a witness's prior consistent statement is

admissible to rehabilitate the witness's credibility if the

opposing party is given an opportunity to cross-examine the

witness about the statement and the statement is offered to

rebut an express or implied charge of:

(1) fabrication, bias, improper influence or

motive, or faulty memory and the statement was

made before that which has been charged

existed or arose; or

[J-104-2020] [MO: Mundy, J.] - 8

(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.

Arguably, some of the cross-examination touched on an implicit or explicit

accusation of the grounds listed in Rule 613(c)(1) as counsel attempted to establish that

A.W. omitted some details from her forensic statement and/or changed her version of

events in ways that suggested her testimony did not meet the beyond a reasonable doubt

threshold needed to convict. For instance, trial counsel asked A.W., “Did you tell the

forensic examiner that he would call you in from the bedroom? Did you tell him that?” Her

response “I think I did” treads closely to a charge that A.W. does not actually remember

what she said at the forensic interview. Of course, as a strictly technical matter counsel

was not accusing A.W. of not remembering what she said at the forensic interview but

rather asking what she did say, with her response indicating uncertainty. Certainly, the

Commonwealth could have objected to these questions and/or presented A.W. with the

specific prior consistent statements on redirect.

But we need not parse out which statements may have been justifiably admitted

as prior consistent statements and which were not. It suffices to say that the trial court

erred because a court abuses its discretion when it admits statements that do not directly

address the rationale for admitting the prior consistent statement. Admitting prior

consistent statements that respond to an accusation of fabrication would not justify

permitting statements that had nothing to do with that charge.7 Compare Commonwealth

7 The McCormick on Evidence treatise offers the following commentary on this point:

[J-104-2020] [MO: Mundy, J.] - 9

v. Fisher, 290 A.2d 262, 268 (Pa. 1972) (“The rule of permissible rehabilitation is not so

broad as to permit the use of hearsay on one subject to support the impeached testimony

on another subject.”). The Majority recognizes this same point with respect to its Rule

106 analysis. Majority Op. at 19 (“Although some of the interview served to correct the

misleading impression created during defense counsel’s cross-examination of the victim

and detective, the vast majority of it did not.”).

Here, it cannot be the case that every hearsay statement on the tape qualified as

a prior consistent statement with respect to a point raised on cross-examination or

through other evidence. Accordingly, Rule 613(c) cannot justify the trial court’s ruling on

this record.8

The two most common rehabilitative methods are: (1)

introduction of supportive evidence of good character of the

witness attacked, and (2) proof of the witness's consistent

statements. The basic question is whether these two types of

rehabilitation evidence represent a proper response to the

specific methods of impeachment that have been used. The

general test of admissibility is whether evidence of the

witness's good character or consistent statements is logically

relevant to explain the impeaching fact. The rehabilitating

facts must meet the impeachment with relative directness.

The wall, attacked at one point, may not be fortified at another,

distinct point.

Kenneth S. Broun, et al., 1 MCCORMICK ON EVIDENCE § 47 (8th ed.).

8 More accurately, the trial court would have erred had it done so, because we know the

trial court did not identify any charge of faulty memory. Trial Court Opinion, 11/14/2018,

at 10 (“This Court permitted the playing of the video in rebuttal as a prior consistent

statement. As stated above, the Court relied upon Willis and Hunzer. This Court would

again assert that the harmless error doctrine applies.”).

[J-104-2020] [MO: Mundy, J.] - 10

III.

The error was not harmless beyond a reasonable doubt

Nor was the error harmless beyond a reasonable doubt. The harmless error

analysis must be the same for an erroneous admission under Rule 106 as it is for an

analysis under Rule 613. The introduction of statements that corroborate trial court

testimony is generally deemed harmless because it is assumed a witness has always told

a consistent story. “Ordinarily, that one has always said the same thing is subsumed in

their testimony and need not be buttressed by evidence of prior consistency, unless that

consistency, by allegation of recent fabrication is challenged.” Commonwealth v.

Hutchinson, 556 A.2d 370, 372 (Pa. 1989). Thus, in line with the trial court’s opinion,

appellate courts often agree that any such evidence erroneously introduced is cumulative

of what was presented at trial. The Commonwealth likewise argues that the evidence

was cumulative. Commonwealth’s Brief at 12 (arguing that the error was harmless

beyond a reasonable doubt “because the accusations included in the interview about

which Raboin now complains—that the victim considered him to be a violent, abusive

man of whom she was fearful—were merely cumulative of the sentiments that she

conveyed during her trial testimony”); id. at 39 (arguing that the statements were

“substantially similar to the erroneously admitted evidence.”).

Recently, in Commonwealth v. Hamlett, 234 A.3d 486 (Pa. 2020), this Court

confronted a case that largely mirrors the present controversy; indeed, it involved the

same trial judge permitting the Commonwealth to play a videotaped recording of a

forensic interview as a prior consistent statement pursuant to Willis and Hunzer.

However, in Hamlett, unlike the present case, Bond was not decided until after the parties

[J-104-2020] [MO: Mundy, J.] - 11

submitted their briefs. As a result, the Commonwealth did not claim that the error was

harmless beyond a reasonable doubt. The Superior Court panel held that the trial judge

erred by admitting the evidence, but sua sponte concluded that the error was harmless

beyond a reasonable doubt. The panel did not address Rule 106.

We accepted appeal in Hamlett to determine whether an appellate court can raise

harmless error sua sponte and affirmed. Notably, our grant was limited to the Superior

Court’s ability to do so and we did not address whether it correctly resolved that point. Id.

at 489 n.2 (stating that the question presented did not “encompass the narrower question

of whether the Superior Court may have erred in the substantive aspects of its harmless-

error review”). In the present circumstances, where the substantive question of whether

the error was harmless beyond a reasonable doubt is before us, I conclude it is not. I am

persuaded by the salient aspects of Justice Wecht’s dissenting opinion in Hamlett

challenging the notion that an error can be dismissed as merely cumulative, and thus

harmless, when its cumulative nature was the very reason that it was error. Under this

circumstance, an appellate court may not conclude, beyond a reasonable doubt, that the

erroneously admitted video corroboration of critical testimony did not influence the jury's

assessment of the credibility of competing evidence. Id. at 519-21 (Wecht, J., dissenting).

As this case involves virtually identical factual circumstances, the problems

identified by Justice Wecht appear here, too. The point that an error cannot be dismissed

as cumulative and thus harmless when the cumulative nature was the very reason it was

error is starker here than in Hamlett, because here the Commonwealth argues that the

admission of the videotape was needed pursuant to the rule of completeness based on

Raboin’s cross-examination. Thus, in the Commonwealth’s telling, the impeachment was

[J-104-2020] [MO: Mundy, J.] - 12

so misleading that the jury came away confused as to what A.W. may have said in the

forensic interview, thereby obligating the trial court to permit the Commonwealth to play

the tape for the jury. But if that is true, then the tape cannot possibly be cumulative of her

trial testimony. Under the Commonwealth’s theory, the tape supplies context that, when

taken together with the direct and cross examinations, presents a cohesive picture of

A.W.’s testimony. In this sense the forensic interview is supplementary, not cumulative.

And I fail to see how an appellate court can figure out what effect such supplementary

material had on the jury’s credibility assessments. The Commonwealth’s harmless error

argument asks us to ignore the tape because it was simply cumulative, i.e., unnecessary.

But if the statements were unnecessary then the Commonwealth’s claim that the

videotape was needed under Rule 106 cannot be correct.

Second, and related to the foregoing, I agree with Justice Wecht that, at a

minimum, in a he-said/she-said conflict such as this one, the harmless error beyond a

reasonable doubt standard simply cannot apply when the accuser’s credibility is bolstered

by the playing of a videotape that corroborates the trial testimony. Id. at 501 (Wecht, J.,

dissenting) (observing that “harmless error necessitates that the evidence be

uncontradicted—a requirement that prevents the reviewing court from making

questionable assessments of the credibility of competing evidence from its inherently

limited appellate perspective”). There is no evidence to convict other than A.W.’s

testimony. We cannot cite overwhelming evidence of guilt as a basis to affirm the

conviction where the only direct evidence against Raboin is the word of his accuser.

Critically, I am highly persuaded by Raboin’s argument that the point at which the

tape was admitted and played severely undermines the Commonwealth’s argument that

[J-104-2020] [MO: Mundy, J.] - 13

the error was harmless. The Commonwealth was permitted to play the evidence in

rebuttal. It was the last thing that the jury saw before it received instructions and debated

whether the Commonwealth met its burden. Whatever effect Raboin’s cross-examination

had would be diminished by viewing a testimonial videotape that was not subject to cross-

examination. In fact, the rebuttal took place three days after A.W.’s testimony, long after

Raboin confronted his accuser.

Furthermore, as discussed earlier in this opinion, the Confrontation Clause

demands that the defendant be given an opportunity to confront his accuser. See supra

note 4. The trial court’s decision to let the jury see and hear an accuser for a second time

without any subsequent cross-examination flouts that guarantee. It is little comfort to a

defendant that he previously was able to cross-examine the victim when the trial court

permits the jury, right before deliberation, to see the victim’s interview under

circumstances which are designed to be non-adversarial. I find showing the jury a version

of the events that was not subject to adversarial testing highly problematic. Coy v. Iowa,

487 U.S. 1012, 1020 (1988) (“That face-to-face presence may, unfortunately, upset the

truthful rape victim or abused child; but by the same token it may confound and undo the

false accuser, or reveal the child coached by a malevolent adult. It is a truism that

constitutional protections have costs.”). Thus, the trial court’s conclusion that this error

was harmless beyond a reasonable doubt because Raboin previously cross-examined

A.W. is unpersuasive. Raboin could not cross-examine the tape, and the myriad audio

and visual clues that it contains were not subject to any adversarial testing. I find that

there is an obvious risk that the jury was swayed by the presentation of the video interview

immediately before its deliberations.

[J-104-2020] [MO: Mundy, J.] - 14

Third, the Commonwealth’s substantive argument in support of finding no

harmless error cites, in support, the Superior Court’s decision in Commonwealth v. Lively,

231 A.3d 1003, 1009 (Pa. Super. 2020), which, in turn, cited and discussed the Bond

Court’s harmless error analysis. The Bond Court’s erroneous analysis of harmless error

states:

Next, we consider the Commonwealth’s argument that the trial

court’s error was harmless.

The doctrine of harmless error is a

technique of appellate review designed

to advance judicial economy by obviating

the necessity for a retrial where the

appellate court is convinced that a trial

error was harmless beyond a reasonable

doubt. Its purpose is premised on the

well-settled proposition that [a] defendant

is entitled to a fair trial but not a perfect

one.

Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d 163, 182 (2012)

(quoting Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248,

251 (1981) ).

On this point, we turn for guidance to [Commonwealth v.]

Busanet[,54 A.3d 35, 66 (Pa. 2012)]. There, the defendant alleged

his appellate counsel was ineffective for failing to challenge the trial

court's admission of a witness's prior consistent statement. Busanet,

54 A.3d at 65. The witness was the Commonwealth's “key witness,”

and he testified that he was with the defendant when the defendant

fired a gun at the victim in retribution for a robbery. Id. Defense

counsel examined the witness on his motive to obtain favorable

treatment from the Commonwealth in his own case. Id. The

Commonwealth introduced a prior consistent statement—the

witness's written statement that he gave to police 15 days after the

crime occurred. Id. Trial counsel objected because the witness

already had a motive to lie at that point, but the trial court overruled

the objection. Id. at 66. Appellate counsel did not pursue the issue

on direct appeal.

The Supreme Court found no ineffective assistance of counsel

because the defendant failed to establish prejudice: “Nevertheless,

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even assuming for purposes of argument that the trial court erred by

admitting [the witness's] prior statement under Pa.R.E. 613(e) [sic],

we agree with the PCRA court that such a claim would not have

entitled Appellant to relief on appeal[.]” Id. at 67. Trial counsel

“meticulously cross examined [the witness] with evidence of his

motive to testify favorably for the Commonwealth[.]” Id. “Further, on

re-cross examination of [the witness], trial counsel painstakingly

pointed out to the jury that when [the witness] made the prior

statement, he was concerned about being charged in connection

with the shooting.” Id. The Supreme Court also noted other

“overwhelming” evidence of the defendant's guilt, including other

witnesses, ballistics evidence, and the defendant's own statements.

Id. Thus, any error on the part of the trial court or counsel did not

prejudice the defendant in Busanet.

We find Busanet instructive. …

Bond, 190 A.3d at 670-71.

In addition to the previous observations challenging this type of harmless error

analysis, Busanet involved a different legal standard. The Busanet decision involved a

claim of ineffective assistance of counsel. To prevail on that type of claim, a petitioner

must establish that the error was prejudicial, defined as a reasonable probability that the

outcome of the proceeding would have been different but for the error. Putting aside the

fact that the Commonwealth bears the burden of showing that the error was not harmless

beyond a reasonable doubt, the legal standard for harmless error is more favorable to the

defendant. In other words, a defendant can prevail on direct appeal for a preserved error,

i.e., he or she receives a new trial because the Commonwealth could not establish that

the error was harmless beyond a reasonable doubt, yet not receive a new trial for the

exact same unpreserved error during collateral proceedings. As we explained in

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014):

We agree with the Commonwealth that the Superior Court did

not utilize the correct standard in concluding Appellee was

prejudiced by trial counsel's failure to object to the

[J-104-2020] [MO: Mundy, J.] - 16

prosecutor's references to Appellee's post-arrest silence

during the cross-examination of Appellee. The panel applied

the “harmless error” standard in determining whether the

Strickland/Pierce “prejudice” prong was met. However, as this

Court suggested in Spotz I, “the test for prejudice in the

ineffectiveness context is more exacting than the test for

harmless error, and the burden of proof is on the defendant,

not the Commonwealth.” Spotz I, 582 Pa. at 227, 870 A.2d at

834 (citations omitted). As a general and practical matter, it is

more difficult for a defendant to prevail on a claim litigated

through the lens of counsel ineffectiveness, rather than as a

preserved claim of trial court error.

Id.

The Bond Court’s analysis treated harmless error and prejudice as the same. It

determined that a trial counsel’s objection to this type of evidence presents the same

considerations in terms of whether a new trial is warranted as in a case where a petitioner

is required to establish prejudice in a collateral proceeding. That is manifestly incorrect.9

For the foregoing reasons, in my view the trial court erred in allowing the

Commonwealth to play the child victim’s forensic interview in rebuttal and the error was

not harmless beyond a reasonable doubt. I would grant a new trial.

Justices Saylor and Wecht join this concurring and dissenting opinion.

9 The Bond Court’s harmless error analysis was an alternative to its holding that the

evidence was actually properly admitted. Bond, 190 A.3d at 673-74 (concluding that the

videotape was admissible under Rule 106 because counsel “cross-examined [the victim]

extensively about the interview”; approvingly quoting prosecutor’s trial argument that

counsel “went line by line towards what she’s transcribed”). Having concluded that the

evidence was properly admitted, there was no need to discuss harmless error.

[J-104-2020] [MO: Mundy, J.] - 17