Pa.R.E. 106; Rebuttal Testimony; Introduction of New Evidence.

Commonwealth v. Raboin, 2019 WL 4072306 (Pa. Super 2019)(unreported), allocatur granted May 11, 2020, appeal docket 9 WAP 2020

The Supreme Court granted allocatur to consider whether introducing a video of a child sexual assault victim’s forensic interview during rebuttal, when defense has made limited references, is appropriate under the Pennsylvania Rule of Evidence, Rule 106, which specifically provides that “[i]f a party introduces all or part of a . . . recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other . . . recorded statement—that in fairness out to be considered at the same time.” Pa.R.E. 106.

In January 2011, Thomas August Raboin (Raboin) and K-L.B. began dating and sharing a home with her three minor daughters, including A.W. The family and Raboin moved to Verona, Pennsylvania, where they lived together for three years. During this time, K-L.B. would leave the children in Raboin’s care. In Spring 2014, Raboin and K-L.B.’s relationship ended and Raboin moved out. In 2017, K-L.B’s minor daughter, A.W., informed K-L.B. that Raboin performed sexually explicit acts on A.W. and made A.W. perform sexually explicit acts on Raboin in the shower. K-L.B. immediately reported Raboin to the police.

Subsequently, A.W. underwent a recorded forensic interview where she described the abuse. As the forensic interview was conducted, Detective Dale Canofari watched the interview behind a one-way mirror. Canafori used the interview to prepare his police report. Raboin was arrested and charged with involuntary deviate sexual intercourse with a child, unlawful contact with a minor, indecent assault of a person less than 13 years of age, endangering the welfare of a child, corruption of minors, and indecent exposure. During Raboin’s jury trial, A.W. was deemed competent to testify and testified as to Raboin’s actions. K-L.B. also testified regarding her relationship with Raboin, Raboin’s interactions with her daughters, and A.W.’s disclosure of the abuse. Detective Canofari also testified as to the police report. Raboin testified that he was never alone with the children, he left because of the responsibilities and stress of parenting and his relationship with K-L.B., and denied ever taking A.W. into the shower and performing any sexual acts on A.W.  During rebuttal and over the defense’s objection, the trial court permitted A.W.’s forensic interview to be played to the jury. Raboin was convicted of all charges and sentenced. Raboin appealed to the Superior Court, claiming that the trial court erred in permitting A.W.’s forensic interview to be played to the jury during the Commonwealth’s rebuttal.

The Superior Court found the trial court did not abuse its discretion and affirmed the conviction. It reasoned that even though A.W.’s forensic interview was not admissible as a prior consistent statement, Pa.R.E. 613(c), it was admissible under Pa.R.E. 106 because defense’s repeated questioning of A.W. and Canofari regarding the forensic interview and attempts to create inconsistencies between A.W.’s testimony and interview entitled the Commonwealth to introduce the video of A.W.’s interview to provide full context of A.W’s account. Slip Op. at 7-8.

The Supreme Court granted allocatur to determine:

Where the Commonwealth is permitted a near blanket introduction of videotaped forensic examination of a child victim in a sexual assault case, during rebuttal, and thus not contemporaneously with any limited reference to said forensic examination by the defense, where numerous unfairly prejudicial statements are contained in the forensic examination, is such appropriate under the rule of completeness set for in Pa.R.E. 106?

For more information, contact Kevin McKeon or Dennis Whitaker.