*3 WIEAND, Before KELLY CERCOME, and JJ.
WIEAND, Judge:
Dennis Jubilee was tried by jury and was found guilty rape and corruption of a minor in connection with a sexual assault upon his six year old niece. Post-trial motions were denied, and Jubilee was sentenced to serve consecutive terms of imprisonment (10) not less than ten years nor more (20) than twenty years on the rape conviction and for less than (2V2) two and one-half years nor more than (5) five years for corrupting a minor. A motion to modify sentence was denied hearing, without and Jubilee appealed. He (1) contends that he was denied his right constitutional public to a trial when the trial court ordered the courtroom during locked jury instructions; (2) the trial court erred denying defense motions for mistrial following prosecutori- al during misconduct closing argument; (3) the trial court committed error when it allowed the prosecution to intro- duce consonant victim; statements of the (4) and required it mother to read appellant’s
trial court erred when during containing a letter to the cross-examination jury drugs. sins use of We conclude references to her son’s and arguments. of these There- there merit several a fore, and remand for new trial. we will reverse an against appellant arose from charges criminal or appel- in June while July, incident which occurred sister, Jubilee, Lydia his at home of and living lant was six evening, year Late one old Keia her five children. to the living left and went downstairs Jubilee her bedroom sitting While she had been on the room to watch television. pants his said, had removed and couch, appellant she her, little into forcing on “a bit” top penis “jumped” her, said, her He told she causing cry. vagina reported kill her mother if she what he was that he would one of the victim’s sisters doing. appellant heard When her, he off and she ran back upstairs, got moving about to her bedroom. upstairs mother, later, to tell her attempted
A the child short time However, December, 1986, ignored. her words were but she had questioned the mother victim about whether her uncle. The victim then denied sexually abused been day, Later the same that she had been abused. twice her mother the incident for which however, she related to the details of also related appellant prosecuted. She Department of workers from the to two social assault police officer. and to Human Services mother trial, contended that victim’s At the defense against to make false accusations the victim had forced money *4 extort from her so the mother could appellant that Therefore, vigorously cross-exam- the victim was family. she had been assault- her denials that regarding ined initial pressured her had whether she been ed and was asked The victim said that she had to appellant. mother accuse happened her mother to tell what initially reluctant been on good make appellant that would she feared because had concluded kill mother. After the victim to the threat the presented testimony, the Commonwealth policeman two social workers and the to the whom victim had reported the assault. These witnesses testified to the assault, victim’s the description which generally consistent with the version which she had told her mother.
Prior to the charging jury, the trial court ordered prevent children, that the courtroom be locked doors who trial, had been at from present causing the a disturbance by running in and out of courtroom. Defense counsel objected.1 appeal, argues On by closing the defendant the courtroom doors him court denied the constitu tionally guaranteed right to a public disagree. trial. We decision Court Superior Commonwealth v. Bullock, 269, 282-283, Pa.Super. 558 A.2d (1989) controlling There, of this issue. the trial court had ordered spectators or permitted enter leave during courtroom the jury charge because squeaky courtroom doors have would caused a disturbance. rejecting argument the trial court’s action had trial, public denied the defendant a the Superior Court public observed: “Members of the were free to remain in Thus, during charge. protec courtroom the court’s guaranteed right public tions offended____” by the to a trial were not Bullock, supra,
Commonwealth v. Pa.Superior Ct. at 542. at “In reviewing prosecutorial remarks to determine their prejudicial comments cannot quality, be viewed but, rather, isolation must be considered in the context in were they Williams, made.” Commonwealth v. 456, 459, Pa.Super. overruled Hill, on grounds, other Commonwealth v. Smith,
A.2d 252 See also: Commonwealth v. following exchange 1. The between defense counsel and the trial court immediately charging jury. to the occurred of the Honor, thing. object MR. MAAS: Your one other I would public locking the doors. This is courtroom. during my charge. I THE COURT: don’t want be disturbed I running don’t want these kids in and out. MR. MAAS: understand. *5 594
Toledo,
224, 236,
480,
(1987).
486
Pa.Super.
365
529 A.2d
do
con
“Generally,
attorney
‘comments
the district
not
effect of
stitute reversible error unless
unavoidable
forming
prejudice the jury,
such comments would be
so
hostility
minds fixed
and
toward the defendant
their
bias
weigh
objectively
could not
the evidence
and
they
”
v. Strong,
522
Commonwealth
render a true
verdict.’
—
cert
445, 454,
479,
563 A.2d
483
U.S.
Pa.
1536,
Com
—,
(1990), quoting
110 S.Ct.
MR. MAAS: Sustained. THE COURT: I testify, suggest Rashanna did PERLIS: MS. reason is that with for that. The you the reason testifying got he two Tamika Angela Jubilee and Jubilee stories. different She was available— object.
MR. MAAS: THE COURT: Sustained.
MR. MAAS: —to the Commonwealth. I suggest
MS. PERLIS: third, that would have been a *6 would been a story. have third gentlemen— also suggest, ladies and
' MR. I object MAAS: that. to The Commonwealth could called that have witness.
We find in no abuse discretion the trial court’s denial of a defense for motion on mistrial the basis of the above quoted prosecuting remarks the Where attorney. the prosecutor merely the challenged defendant’s failure to produce a who allegedly witness would have provided favor able testimony, the were comments not improper. See: Yarris, v. Commonwealth 571, Pa. 597, 513, 519 549 A.2d 526 cert. 910, 3201, 491 U.S. 109 S.Ct. 105 Johnson, v. (1989); L.Ed.2d 708 Commonwealth Pa. 554, 561-562, 327 A.2d Common (1974); Womack, wealth v. 396, 406, 307 Pa.Super. (1982). case, event, this in any the trial court
sustained to the objections prosecuting attorney’s remarks. The denial of the defense motion additional relief in the nature of a mistrial was not error.
Later by prosecuting remarks attorney present a different and more difficult issue. She said:
Furthermore, a judge went talked to once [the victim] before, and heard you the defense cross-examine attorney minor points about some that she said differently to you. Well, first than she judge did in that entire packet hearing you from first can assume that all consistent, the rest it was wasn’t, because if it attorney picked defense would it have out. Objection,
MR. MAAS: Your Honor.
THE COURT: Sustained. So, words,
MS. PERLIS: other said what she at the hearing was she preliminary consistent with what said at the trial.
MR. Objection, MAAS: Your Honor.
THE COURT: Overruled. prosecutor these comments Appellant argues referring credibility by bolstered the victim’s improperly facts not evidence. must attorney district
It is well settled “[t]he legitimate to facts evidence and limit remarks [her] Anderson, 490 inferences therefrom.” See also: Common Pa. A.2d 309; ’Amato, D A.2d at supra wealth v. 514 Pa. at Barren, Glass, 334, 347, 405 Here, preliminary record of the Therefore, it improper was not in evidence. was hearing that the attorney suggest jury prosecuting for the testimony consistent with victim’s this hearing. given preliminary By she at the had *7 attempted improperly prosecuting attorney the statement asserting that she had credibility by the victim’s bolster Where, here, the as story. a consistent previously told of credibility the by jury issue decided was central to be testimony witness’s had witness and that the complaining of inconsistent statements which by evidence attacked been with made, reviewing court cannot conclude a she had regard comments improper that the certainty prosecutor’s testimony with of the victim’s ing consistency the jury’s did not influence testimony hearing preliminary improper. conduct attorney’s prosecuting verdict. a Commonwealth testimony of could not bolster She had not introduced been referring to facts by witness at trial. into evidence prior a admissibility of witness’s regarding
The law by the Supreme has summarized been consistent statements as follows: Court their use as a hearsay, are such statements
Because
impeached
of an
credibility
to rehabilitate
means
limited; and such state-
is
testimony
severely
witness’
alleged
if it is
witness’
only
ments are admissible
or a result
recently
fabricated
present
testimony
597
corrupt
Gaddy,
Commonwealth v.
303,
motives.
468 Pa.
317,
217,
(1976). Furthermore,
362
223
A.2d
evidence of
such statements is “admissible
in rebuttal and then
only
only for the
purpose
showing that which the
witness
now testifies
has not
recently
been
fabricat
v.
ed”.
Pa.
Gaddy,
468
362
Wilson,
217,
(1976),
A.2d
223
quoting
602-03,
234,
394 Pa.
242
cert.
A.2d
(1959).
361 U.S.
S.Ct.
Vento, A.2d 161 If they thing one testifies that did a eertain at a given time, challenged said they may they something is impeachment by prior different before. contra- Such has dictory Ordinarily, always statement. that one said thing same is subsumed their and need not be evidence of prior consistency, buttressed unless by allegation that consistency, of recent fabrication is challenged. challenged, prior When evidence and con- tinued may be offered. Evidence of consistency such challenge *8 required absent is not consistency, and is and To essentially repetitious. cumulative regularly al- easily low of prior consistency may .become a augment device to the of merely credibility witnesses by others. Hutchinson, 482, 487-488,
Commonwealth v.
521
Pa.
556
370,
v. Gaddy,
Commonwealth
A.2d
372
See also:
217,
Commonwealth
(1976);
A.2d
223
468
362
Wilson,
234,
v.
602-603,
(1959),
394 Pa.
242
cert.
(1959);
However, of are prior consonant statements a witness the credibility the witness’ where bolster admissible he or she made inconsistent prior has witness admitted White, 139, 16 statements. the exclusion Supreme Court affirmed A.2d 407 circumstances, such statement under prior of a consistent as reasoning follows: of and allegedly exclusion judge’s
Here the trial entirely right; to have allowed statements was consonant an exercise unwise only represented have them would matters, in him such but would the discretion vested of For, as he states reversible error. well have constituted exception “The of the court below: opinion in his of such consonant permits rule which evidence hearsay rests some circumstances received under statements to be support credit theory they altogether upon he the inconsist- denied that ever made who has a witness has Before been offered. proof ent statement at all there can be admissible statements such consonant has in fact the witness an issue as to whether must be in the or not. as statement Where made an inconsistent witnesses, his self-contra- and case this defendant fact, is conceded, damaging it as is remains diction the consistent statement. explained away by no sense or the other false at one time must have been witness still to show that at no of his credit restoration and it in accordance with statements he has made other times many No how times testimony. matter present *9 consistent story may told, have been the inconsistent one is not erased. An inquiry ascertain which of the two different statements has been made most frequently by the witness would furnish no means by which the credit due Ms testimony could be satisfactorily determined.” See People, 78; Stewart v. 28 Mich. 9 Am.Rep. Wig- Evidence, Ed., more on 3rd section 1126. 143-144,
Id.
contained
an en
opinion
Superior
banc
of the
Court
Willis,
Pa.Super.
Here, the victim admitted that she initially had told her mother that she had not been assaulted. explained She that she had done so because of her fear of appellant. The admission of the statements detailing the assault which the victim made to police officer, two social workers and a therefore, could not offered to properly deny the fact that the victim had made inconsistent statements. Similar of the ly, testimony police two social workers and the man did not explain why given the victim had inconsistent Instead, statements. the Commonwealth used these wit nesses to provide testimony which was of the cumulative intended to bolster the vic- thereby
victim’s *10 demonstrating she had told a ver- credibility by tim’s that more sion of with her trial events consistent often than told the inconsistent events. Such she version limited a use of consonant statements exceeds the prior court for are allowed. When purpose they statements for such purpose, allowed the consonant a and committed an error of law. it abused its discretion case, its had rested After witness, as its first Sandra Jubilee. She was defense called Jubilee, Lydia and of the victim’s appellant the mother of grandmother mother. also the the victim.2 She was the victim’s mother had threat Sandra testified that Jubilee she, Sandra, appellant unless bring charges against ened to her also said that the relation gave money. witness deteriorated, that daughter daughter had her ship with her harassing daughter her that her constantly had been and through appellant. ‘"'fix”her On cross- had threatened to examination, asked Sandra Jubilee the Commonwealth trial. daughter prior she had to her to about letter written the wit attorney for the Commonwealth asked When the objected letter defense counsel jury, ness to read the to ensued at sidebar: following and the discussion interfering to THE That has come close lady COURT: to justice. totally trying the administration of She’s with trial. suborn this Honor, that, doing she denied
MR. Your has MAAS: concerned, I as this is thing, for one and as far note envelope. is But— have idea what else no I I’ll to it to counsel. happy MS. PERLIS: show be got myself. it just else’s can anybody opinion
MR. No more than MAAS: not, he or have guilty is introduced as whether his talking read about sins— that note employed by Philadelphia Court Common 2. The witness probation juvenile officer. Pleas as a THE right. COURT: That’s talking And she’s the one he is good about such a then she guy, contradicts that by this I going note. am it let in.
MR. I think MAAS: that is mistrial material. MS. PERLIS: Absolutely not.
THE I COURT: don’t think so. It is note she wrote and she testified as to not him favoring and not trying punish Lydia bringing this case to court.
MS. PERLIS: Absolutely. Honor,
MR. MAAS: Your as far requests as that she might have made of that is one Lydia, thing. But as to sinned, her beliefs as to he goes whether has to her opinion as to guilt. was unaware she had wrote that that, or said certainly thing but the same as *11 her putting saying, on the stand and Do think you he is It is guilty. inadmissible.
THE I’ll permit COURT: it. And I am totally outraged that lady this conducted herself in this manner. This she to lady, ought brought be fired and to trial herself for to I’ll trying subvert this trial. admit it. objection
When defense was the witness read the contents of her letter into evidence as follows:
A. you “Can find it in heart your judge to ask the to have mercy on Dennis for his sins. Dennis did a lot of wrong while he drugs getting was on drunk. isHe in suffering ways now cannot you believe. He’ll for pay life, his sins the rest of his stay should he in for 25 jail I years. punishing know God is me too my for sins.” letter, asked to explain purpose When of her the wit- responded ness as follows: purpose
A. The for delivering that and other material Lydia was because I wanted to see I really what felt in her, my heart that it was not hate. I wanted to clear having of been myself trying accused of to take her from Iwhy gave children her. That is her of copy actual I letter that had written to That was the DHS. I what, reason. wanted to that of Lydia regardless know her, I I her I thought loved still cared for and that in she her heart. mercy should have some Jubilee, I am read Q. may, going Miss if I to the second pay to sentence on this note. “He’ll for his sins the last life, stay years.” rest should he for 25 jail of Lydia What line this note to purpose was Jubilee? line
A. The of that was to make think purpose doing. really what she was words, in that Q. So, purpose in other line charges; note to to isn’t that Lydia drop was convince true? her to drop charges.
A. I had never asked things or is purpose to make her aware is these true was just people. she to trying punish Ma’am, this, talked Keia about have Q. you never you?
A. I not. have
Q. you Keia and haven’t even spoken You don’t believe her, do you? approach A. I told not to them. was Ma’am, delivering this was Q. your purpose envelope trial, it not? this subvert No, try A. I do that. would never questions. PERLIS: No further MS. letter states that had no— My
THE WITNESS: *12 Any THE redirect? COURT: trying pur- No on not to authority THE WITNESS: I anybody’s opinion. my or wanted change suade [sic] I regardless, to that I loved her. never daughter know her hurt I never tried to take children tried to her. why And is she was from her. I believe that me, thought hurt she trying because wanted of her children. custody take this line of cross-examination Appellant contends interpreted letter only could improper was because appellant guilty. of was fact opinion as an expression
603 The Implicated letter also appellant other conduct involv- ing drinking drug and abuse. argues, hand, on the other that the cross-examination proper rebut the inference raised by the witness on direct examina- daughter tion that believed she had induced the victim charges to bring against appellant. false It is well settled that scope and limits of cross- “[t]he examination are largely within discretion the trial pertaining court and the actions thereto will not be reversed a dear or absence abuse discretion error of Perdue, 473, 485, law.” Commonwealth v. 387 Pa.Super. 489, (1989). 564 A.2d 495 also: See Buehl, 1167, (1986), 510 Pa. 1179 cert. denied, 871, 187, (1988); 488 109 102 U.S. S.Ct. L.Ed.2d 156 165, Fried, Pa.Super. 156, 382 119, 123 rule, general
As a
if
elementary
is
that a
is
party
entitled
on cross-examination
bring
out every circumstance
relating to
fact
which an adverse witness
called to
521,
prove.
Shear,
Peters v.
351 Pa.
A. cert. 302 U.S. S.Ct. L.Ed. we cited 70 approval CJ.S. with as follows: bearing
As
on his credibility,
may
a witness
be cross-
examined as to
acts
inconsistent
or conduct generally,
acts or conduct inconsistent with Ms
or
testimony,
on
part
omissions
which tend to discredit Mm.
Commonwealth
Pa.
Snoke,
v.
(1990).
also: Commonwealth
See
558-559
However,
Pa.
principle
under the
of this
proper
‘it would not be
cover
used to
the
of cross-examination
be
permit
vehicle
highly prejudicial
a circumstance
convey
jury
to the
placed
directly
which could not
be
parties
one
the
an
in the use
impropriety
the trier of fact. Such
before
should
within the control
of cross-examination
be
judicial
discre-
impartial
in the exercise of
judge,
trial
tion.’
Green,
supra
Commonwealth Loev, 465, 467-468, 194 A. quoting Kaplan v. denied, 302 U.S. cert. (1937), 58 S.Ct. 82 L.Ed 595 no simple issue. There can doubt
This is not a damag- letter appellant’s mother were statements However, charges of fabrication to the defense. ing during direct examination were seri- by the witness made in the letter were ous, contained and the contradictions assessing the witness’s to aid the credibili- jury relevant therefore, review, we conclude ty. After careful it its discretion when allowed the trial court did abuse of the letter. to introduce the contents errors, a trial is Nevertheless, of other new because required. a new trial. Jurisdiction and remanded for
Reversed not retained.
KELLY, opinion. J., concurring files a KELLY, Judge, concurring. error in prosecutor committed reversible agree not introduced at that was
referring to pre-trial However, for argument during closing. support Willis, 380 Pa.Su- set forth in reasons the trial not find that I would per. of the consonant statements allowing erred court *14 child witness to be introduced to explain a reason for the i.e., child’s prior statement, inconsistent because the child appellant’s Hence, threats. I concur in the result. feared
Superior Pennsylvania. Court of
Submitted Nov. 1990. April
Filed 1991.