J-A14017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS AUGUST RABOIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 976 WDA 2018

Appeal from the Judgment of Sentence Entered June 11, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0009844-2017

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 22, 2021

Thomas August Raboin appeals from the judgment of sentence imposed 

following his conviction for involuntary deviate sexual intercourse with a child, 

unlawful contact with a minor, indecent assault person less than 13 years of 

age, endangering the welfare of a child, corruption of minors, and indecent 

exposure.1 This Court initially affirmed Raboin’s judgment of sentence. 

However, our Supreme Court reversed that ruling and remanded the matter 

back to this Court for consideration of an evidentiary issue. Having considered 

that issue, we vacate the judgment of sentence and remand for a new trial.

Our Supreme Court summarized the relevant factual and procedural 

background of this matter as follows:

____________________________________________

1 See 18 Pa.C.S.A. §§ 3123(b), 6318(a)(1), 3126(a)(7), 4304(a)(1), 

6301(a)(1), and 3127(a).
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In January 2011, [Raboin] began dating K.B. He moved into 

K.B.’s home shortly thereafter, where she lived with her three 

minor daughters and multiple other individuals. At this time, 

K.B.’s eldest daughter (“the victim”) was in kindergarten. 

[Raboin] moved out a few years later when the couple ended their 

relationship, at which point the victim was in second grade. 

During the victim’s fourth-grade year, she disclosed to her mother 

that [Raboin] had sexually abused her while living in their home. 

She explained that on several occasions, [Raboin] summoned her 

into the shower and sexually assaulted her. K.B. immediately 

contacted the police, who arranged for a forensic interview.

The forensic interview was videotaped and observed by a 

detective behind a one-way mirror. During the interview, the 

victim recounted these instances of sexual abuse. She also 

explained several times that she complied with [Raboin’s] 

requests because she was scared that he would hurt her, her 

sisters, or her mother. See Forensic Interview Transcript, 7/6/17, 

at 11, 32, 37-38. The victim also reported that [Raboin] was 

“really mean.” Id. at 18. She also explained that [Raboin] would 

frequently “push [her] mom” and “slap her hands and push her to 

the ground. And I didn’t tell anyone because I thought that if I 

did tell someone, he would try to hurt me or my mom again.” Id. 

at 32.

Following this interview, the detective prepared a police 

report and an arrest warrant was issued. [Raboin] was 

subsequently arrested and charged with the following offenses: 

involuntary deviate sexual intercourse with a child, unlawful 

contact with a minor, indecent assault of a person less than 

thirteen years of age, endangering the welfare of a child, 

corruption of minors, and indecent exposure.

On March 9, 2018, [Raboin] proceeded to a jury trial. At 

trial, the victim testified that [Raboin] began sexually assaulting 

her in the shower sometime between kindergarten and second 

grade, but she could not recall the exact time period. She also 

stated that she got in the shower with [Raboin] out of fear 

“[b]ecause he was much taller and had once pushed [her] 

mother.” N.T. Trial, 3/9-12/18, at 38. The victim also testified 

that she was afraid to tell anyone about the abuse because she 

believed [Raboin] might hurt her. Id. at 48. On crossexamination, [Raboin’s] attorney attempted to draw 

inconsistencies between the victim’s forensic interview and her 
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trial testimony regarding when the abuse occurred and the time 

period in which [Raboin] lived in the family’s home. Id. at 68-73, 

79-80.

The Commonwealth also called as witnesses K.B. and the 

detective who observed the forensic interview. Both corroborated 

the victim’s trial testimony to the extent she relayed the same 

information concerning the assault when questioned by them. 

During cross-examination of the detective, [Raboin’s] attorney 

similarly attempted to draw inconsistencies between the victim’s 

forensic interview and the detective’s trial testimony. Id. at 159-

63. He inquired whether the victim ever mentioned during the 

forensic interview that [Raboin] would call out to the victim from 

the shower and ask her to come in, to which the detective replied, 

“I don't think so.” Id. at 160. The detective also recalled the 

victim stating that the abuse took place when she was in 

kindergarten. Defense counsel challenged this by asking the 

detective whether he was certain and proceeded to confront him 

with the police report prepared based on the victim’s forensic 

interview. The report stated that “a former boyfriend was in the 

bathroom when [the victim] was eight years old and sexually 

assaulted her numerous times.” Id. at 161. The detective 

responded by explaining he was unsure how old children are in 

kindergarten, which is why he also included in the report, “See 

DVD for full interview.” Id.

[Raboin] testified in his own defense at trial, denying the 

allegations. At the conclusion of [Raboin’s] presentation of 

evidence, the Commonwealth requested to play the victim’s 

forensic interview in rebuttal on the basis that it was a prior 

consistent statement. See Pa.R.E 613(c)(1). [Raboin] objected 

to the admission of the interview in its entirety. Then, following a 

lengthy in-chambers discussion involving specific objections to 

portions of the forensic interview, the trial court largely permitted 

its introduction, aside from several pages that the court reasoned 

were hearsay. The trial court’s rationale for allowing introduction 

of the forensic interview was that it constituted a prior consistent 

statement and rehabilitative evidence. At the conclusion of the 

video, the trial court instructed the jury that “the forensic 

interview . . . offered by the Commonwealth [is] . . . what is known 

as a prior consistent statement, and as such, it is to be used by 

you only for the purpose of helping you to determine the credibility 

of [the victim] as she testified here in court. It is not to be used 

by you for proof of the truth of any matter stated here in court. 
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It is not to be used by you for proof of the truth of any matter 

stated in her forensic interview.” N.T. Trial, 3/9-12/18, at 243.

The jury ultimately convicted [Raboin] of involuntary 

deviate sexual intercourse with a child, unlawful contact with a 

minor, indecent assault of a person less than thirteen years of 

age, endangering the welfare of a child, corruption of minors, and 

indecent exposure. He was sentenced to 168 to 416 months’ 

imprisonment to be followed by five years’ probation. [Raboin] 

filed post-sentence motions, which the trial court denied. He then 

filed a timely notice of appeal claiming, inter alia, that the trial 

court erred in admitting the victim’s forensic interview as rebuttal 

evidence.

In its Pa.R.A.P 1925(a) opinion, the trial court explained that 

it deemed the forensic interview admissible as a prior consistent 

statement based on two cases, Commonwealth v. Willis, . . . 

552 A.2d 682 (Pa. Super. 1988), and Commonwealth v. 

Hunzer, . . . 868 A.2d 498 (Pa. Super. 2005), which had since 

been called into question by, inter alia, Commonwealth v. Bond, 

. . . 190 A.3d 664 (Pa. Super. 2018). Trial Ct. Op., 11/14/18, at 

10. It reasoned, however, that this decision was harmless. Id. 

The court explained that [Raboin] had an opportunity to review 

the interview during pretrial discovery and was also afforded an 

opportunity to, and did in fact, cross-examine the victim at trial 

concerning the reasons for her delay in reporting the assaults. Id. 

at 10-11. The court maintained that admission of the interview 

was cumulative and harmless as a result. Id. at 11.

[Raboin] appealed to the Superior Court, claiming the trial 

court erred in admitting the forensic interview during the 

Commonwealth’s rebuttal. He specifically averred the interview 

was inadmissible as a prior consistent statement because it did 

not predate the victim’s initial accusations, which [Raboin] 

claimed were false. In support of this position, [Raboin] relied on 

Bond, decided only two days following the trial court’s imposition 

of sentence, to argue the forensic interview was inadmissible 

under Rule 613(c).

* * * *
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In the instant matter, the Superior Court affirmed in a 

unanimous, unpublished memorandum. Commonwealth v. 

Raboin, 221 A.3d 328 . . . ([Pa. Super.] 2019) (unpublished 

memorandum). The court recognized that in Bond the victim’s 

forensic interview was deemed inadmissible as a prior consistent 

statement because the child’s statements in the interview were 

not made before the alleged fabrication. [Id.] at *3 (citing Bond, 

190 A.3d at 670). It then explained that the Bond court 

nonetheless concluded the victim’s forensic interview was 

admissible as a remainder of a recorded statement pursuant to 

Rule 106. Id. (citing Bond, 190 A.3d at 673) (“Given the extent 

to which defense counsel relied on the [i]nterview [v]ideo during 

her cross-examination of the victim, the prosecution was entitled 

to introduce [the victim’s] entire account of the assault in order to 

provide full context.”). [Id]. The court explained that similar to 

Bond, present defense counsel thoroughly cross-examined both 

the victim and the assigned detective regarding the contents of 

the interview. Id. The Commonwealth was therefore permitted to 

admit the victim’s “entire account of the assault in order to provide 

full context.” Id. The Superior Court never addressed whether 

the victim’s forensic interview was admissible as a prior consistent 

statement, instead relying on the alternative holding in Bond

which found the victim’s forensic interview admissible under Rule 

106. Id. (citing Commonwealth v. Fant, . . . 146 A.3d 1254, 

1265 n.13 (explaining “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 of 

record”) (citations omitted)). The Superior Court therefore 

affirmed [Raboin’s] judgment of sentence.

Commonwealth v. Raboin, 258 A.3d 412, 415-17 (Pa. 2021).

Following this Court’s decision, Raboin filed a petition for allowance of 

appeal in our Supreme Court. The High Court granted the appeal to consider 

the following question:

Where the Commonwealth is permitted a near blanket 

introduction of [the] videotaped forensic examination of a child 

victim in a sexual assault case, during rebuttal, and thus not 

contemporaneous with any limited reference to said forensic 

examination by the defense, where numerous unfairly prejudicial 

statements are contained in the forensic examination, is such 
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appropriate under the rule of completeness set [forth] in Pa.R.E. 

106?

Commonwealth v. Raboin, 233 A.3d 672 (Pa. 2020) (per curiam)

The High Court determined that defense counsel’s introduction of the 

forensic interview through extensive questioning of the victim and the 

detective on cross-examination created a misleading impression that the 

victim’s trial testimony was at odds with or contained additional information 

than that relayed in the forensic interview. The Court concluded that these 

lines of questioning permitted the Commonwealth to seek admission of 

additional portions of the forensic interview to provide the jury with a clear 

picture of the victim’s statement. However, the Court ruled that, pursuant to 

the temporal requirements of Rule 106, the additional portions the forensic 

interview should have come in at or near the time of defense counsel’s 

questioning of the victim or the detective, such as during defense counsel’s 

cross-examination of the victim and the detective or on re-direct. The Court 

ruled that Rule 106 does not authorize the admission of the forensic interview 

on rebuttal, such as occurred in this case. 

The High Court additionally ruled that the fairness requirement of Rule 

106 merely allows introduction of that evidence necessary to correct the 

misleading impression. The High Court determined that although the 

admission of some of the forensic 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. For these reasons, the Court
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concluded that the trial court erred in admitting nearly all of the victim’s 

forensic interview pursuant to Rule 106.

Nevertheless, because Raboin had preserved his challenge to the trial 

court’s alternate ruling that the forensic interview was admissible as a prior 

consistent statement, the High Court remanded the matter for this Court to 

address the admissibility of the forensic interview under Rule 613(c).2 We 

therefore re-examine this matter to determine whether the forensic interview 

was admissible as a prior consistent statement under Rule 613(c).

Our standard of review concerning the admissibility of evidence is wellsettled:

The admission of evidence is solely within the discretion of

the trial court, and a trial court’s evidentiary rulings will be

reversed on appeal only upon an abuse of that discretion. An

abuse of discretion will not be found based on a mere error of

judgment, but rather occurs where the court has reached a

conclusion that overrides or misapplies the law, or where the

judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).

Rule 613(c) states, in pertinent part:

(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence 

of a witness’s prior consistent statement is admissible to 

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2 As explained above, this Court declined to address whether the victim’s 

forensic interview was admissible as a prior consistent statement due to our 

ruling that the victim’s forensic interview was admissible under Rule 106. See

Fant, 146 A.3d at 1265 n.13 (explaining that appellate courts may affirm for 

any valid reason appearing of record). Thus, because this Court found a basis 

to affirm the trial court’s ruling, it did not need to address the question of 

whether the forensic interview was admissible on any other basis.
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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).

In the instant matter, the trial court ruled at trial that the forensic 

interview was admissible as a prior consistent statement under Willis and 

Hunzer.

3

 However, in its Pa.R.A.P. 1925(a) opinion, the trial court tacitly 

acknowledged that it’s reliance on Willis and Hunzer was undermined by 

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3 Willis and Hunzer 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. See Raboin, 

258 A.3d at 425 n.2. However, two days after Raboin’s sentencing, this Court 

issued its decision in Bond, 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.
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Bond, but instead asserted that the error was harmless. See Trial Court 

Opinion, 11/14/18, at 10-11.

4

 The trial court stated:

This Court permitted the playing of the video in rebuttal as 

a prior consistent statement. As stated above, th[is] court relied 

upon Willis and Hun[z]er. This court would again assert that the 

harmless error doctrine applies. Admission of the video interview 

of [the victim] does not prejudice [Raboin], inasmuch as counsel 

for [Raboin] had reviewed the forensic interview during pretrial 

discovery and had a full opportunity to cross-examine [the victim]

at trial regarding the reasons for her delay in reporting the sexual 

assaults. In fact, counsel for [Raboin] cross-examined [the 

victim] regarding the forensic interview. As the forensic interview 

was cumulative, any error in admitting the interview was

harmless.

Id. (citations to the record and unnecessary capitalization omitted).

Based on our review, we conclude that some of defense counsel’s crossexamination of the victim and the detective touched on an implicit or explicit 

accusation of the grounds listed in Rule 613(c)(1) because counsel attempted 

to establish that the victim omitted some details from her forensic statement 

and/or changed her version of events in ways that suggested her testimony 

____________________________________________

4 The Commonwealth similarly acknowledges that Rule 613 does not apply 

under governing Superior Court precedent:

[A]ny motive that [the victim] 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 [the trial court], as outlined in Bond, was not 

justified in admitting the video as a prior consistent statement to 

rehabilitate the victim.

Commonwealth’s Brief at 18 (footnote omitted).
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did not meet the beyond a reasonable doubt threshold needed to convict. See

Raboin, 258 A.3d at 429 (Donohue J., concurring and dissenting opinion). 

Nevertheless, our Supreme Court ruled that “[a]lthough 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.” 

Id. at 423-24. Although the majority reached this conclusion with respect to 

its Rule 106 analysis, the same reasoning applies to a Rule 613(c) analysis. 

See id. at 429 (Donohue J., concurring and dissenting opinion) (reasoning 

that “[a]dmitting prior consistent statements that respond to an accusation of 

fabrication would not justify permitting statements that had nothing to do with 

that charge”). Thus, while some portions of the forensic interview may have 

been admissible under Rule 613(c), most of the interview was not. Given this 

determination, we need not identify each and every statement may have been 

justifiably admitted as prior consistent statements and which were not. See 

id. (Donohue J., concurring and dissenting opinion) (concluding that “we need 

not parse out which statements may have been justifiably admitted as prior 

consistent statements and which were not”). Instead, we conclude that the 

trial court abused its discretion by admitting the portions of the forensic 

interview which did not directly address the rationale for admitting the prior 

consistent statement.

Having determined that the trial court’s discretion was abused, we must 

determine whether such error was harmless. Our legal standards governing 
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harmless error are well-settled. An error warrants relief only if the appellate 

court is convinced beyond a reasonable doubt that the error is harmless.

Commonwealth v. Story, 383 A.2d 155, 162, 164 (Pa. 1978) (holding that 

“an error cannot be held harmless unless the appellate court determines that 

the error could not have contributed to the verdict”). In making such a 

determination, we are guided by the following principles:

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. Smith, 861 A.2d 892, 897 (Pa. 2004). Whenever there 

is a reasonable possibility that an error might have contributed to the 

conviction, the error is not harmless. Story, 383 A.2d at 164. When 

reviewing for harmless error, the appellate court considers only the 

uncontradicted evidence and, having done so, proceeds to determine whether 

that body of uncontradicted evidence was so overwhelming that the erroneous 

admission of the evidence could not have impacted the verdict. See 

Commonwealth v. Fitzpatrick, 255 A.3d 452, 470 (Pa. 2021). The 

Commonwealth bears the burden of proving that the error was harmless 

beyond a reasonable doubt. Story, 383 A.2d at 162 n.11.

In the instant matter, the evidence of abuse was disputed. Raboin took 

the witness stand and denied all of the allegations levied against him. Several 
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defense witnesses testified that Raboin was never alone in the house with the 

victim, and that another adult resident or a babysitter was always present 

when Raboin was home. Raboin himself similarly testified that there were 

always multiple adults in the home when the victim was there. Thus, we 

cannot conclude that there is any body of uncontradicted evidence which was 

so overwhelming that the erroneous admission of the forensic interview could 

not have impacted the verdict.

Nor can we conclude that the erroneously admitted portions of the 

forensic interview were merely cumulative of other untainted evidence which 

was substantially similar to the erroneously admitted evidence. Without 

explanation, the trial court concluded that “the forensic interview was 

cumulative” Trial Court Opinion, 11/14/18, at 11. The Commonwealth 

contends that the forensic interview was cumulative of the victim’s trial 

testimony that she was afraid Raboin might hurt her or her family if she 

reported the abuse. Commonwealth’s Brief at 39. However, in the forensic 

interview, the victim expressed more than just a general fear of Raboin. 

Indeed, the victim stated in the interview that Raboin “was really mean,”

physically abused her mom, and would withhold food from her and her siblings 

when he watched them. See Forensic Interview Transcript, 7/6/17, at 18; 

see also id. at 31 (where the victim stated that “he wouldn't feed us”); id. 

at 32 (where the victim stated “[h]e would always push my mom, and he 

would hurt her, you know? He would slap her hands and push her to the 
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ground.”). Thus, the forensic interview was not merely cumulative evidence, 

and instead constituted supplemental evidence which expanded on the 

victim’s trial testimony.

Finally, we cannot conclude that the erroneous admission of the forensic 

interview did not prejudice Raboin or that any prejudice was de minimis. The 

forensic interview (which consisted of forty-two pages) was not introduced 

until the rebuttal phase of trial. Therefore, the interview video was the last 

thing that the jury saw before it received instructions and debated whether 

the Commonwealth met its burden. Moreover, because the rebuttal took place 

three days after the victim’s testimony, whatever effect Raboin’s crossexamination of the victim had would be diminished by viewing a testimonial 

videotape that was not subject to rebuttal or cross-examination. See Raboin, 

258 A.3d at 431-32 (Donohue, J., concurring and dissenting) (citing the 

confrontation clause and observing that “Raboin could not cross-examine the 

tape, and the myriad audio and visual clues that it contains were not subject 

to any adversarial testing”). As Raboin was unable to rebut the interview

video, it may have bolstered the victim’s credibility in the minds of the jurors. 

See id. at 424 (Wecht, J., concurring and dissenting). Based on these 

considerations, it would be impossible for this Court to determine what effect 

such supplementary material had on the jury's credibility assessments or 

conclude beyond a reasonable doubt that the interview did not influence the 
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jury’s verdict. See id. at 431 (Donohue, J., concurring and dissenting); see 

also id. at 424 (Wecht, J. concurring and dissenting)

As this Court is not convinced beyond a reasonable doubt that the 

admission of nearly all of the forensic video was harmless, we are compelled 

to vacate Raboin’s judgment of sentence and remand for a new trial.

Judgment of sentence vacated. Case remanded for new trial. 

Jurisdiction relinquished.

Judge Ott did not participate in the consideration or disposition of this 

appeal.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2021