Com. v. Vo, K., 2327 EDA 2016

Victim Maggie Kane drank heavily at a dorm gathering on Jan 21–22, 2015, and later returned to her dorm where Appellant Kyle Vo gave her multiple vodka shots. She testified she became very intoxicated, went in and out of consciousness, and later awoke to find Vo having penile-vaginal intercourse with her; she denied consent.
Several witnesses (roommates and friends) described Kane as increasingly intoxicated that night and corroborated that she had said she was a virgin and did not want sex; one witness observed Vo having intercourse with an apparently limp Kane.
Twelve hours after the incident, under police supervision, Kane made a recorded (consensual) phone call to Vo in which she discussed pregnancy/Plan B, condom use, and told Vo he had gotten her drunk and had sex with her; Vo made admissions on the call about condoms and ejaculation.
At trial the Commonwealth sought to introduce portions of the call; the defense sought to use the transcript to cross-examine Kane for prior inconsistent statements (arguing the call showed she at times said she was sober or had said yes to sex), but the trial court reviewed and excluded use of the transcript for impeachment.
A jury convicted Vo of rape and related sexual-assault offenses; Vo was sentenced to 6–20 years plus probation. On appeal, Vo argued the exclusion of the call/transcript deprived him of his right to present a full defense and to impeach the victim with prior inconsistent statements.

Issue	Appellant's Argument	Commonwealth/Trial Court Argument	Held
Whether the trial court erred by barring use of the recorded phone call/transcript to cross-examine the victim as prior inconsistent statements and thereby violated Vo’s due process/right to present a defense	The transcript contained statements by Kane inconsistent with her trial testimony (e.g., she told Vo she was "sober" when she told him she would remain a virgin; she allegedly said "yes" to sex), so Vo should be allowed to impeach her credibility and show consent	The court found no true inconsistencies: Kane’s call statements about pregnancy/condoms and about having been drunk are consistent with her trial testimony; statements by Vo on the call are not prior inconsistent statements of Kane and her alleged failures to speak do not equate to impeachable prior statements	Affirmed. The court ruled the phone-call excerpts were not prior inconsistent statements of the victim; exclusion was not an abuse of discretion and, in any event, any error was harmless due to overwhelming admissible evidence of intoxication and nonconsent

Commonwealth v. Towles, 106 A.3d 591 (Pa. 2014) (admissibility review is discretionary; appellate reversal only for abuse of discretion)
Commonwealth v. Ragan, 645 A.2d 811 (Pa. 1994) (silence on a prior occasion may be probative where witness had a duty or it was natural to speak)
Commonwealth v. Parker, 104 A.3d 17 (Pa. Super. 2014) (a question can be a statement if it contains an implied assertion)
Commonwealth v. Rasheed, 640 A.2d 896 (Pa. 1994) (harmless-error framework where evidence of guilt is overwhelming)
Commonwealth v. Story, 383 A.2d 155 (Pa. 1978) (harmless error standard explained)
Commonwealth v. Hitcho, 123 A.3d 731 (Pa. 2015) (issues not raised below are waived on appeal)