Commonwealth v. Raboin

On its face, a four-justice majority found this case to be about Rule of Evidence 106, typically referred to as the rule of completeness. But this case might be more persuasive as evidence that individual justices on the Pennsylvania Supreme Court do not want their names associated with an appeal where a convicted child molester wins. Raboin was accused of sexually assaulting a kindergartener. The victim submitted to a recorded forensic interview that a detective watched from behind a one-way mirror. On cross-examination, defense counsel questioned the victim and the assigned detective on inconsistencies between the forensic interview and the victim’s trial testimony. On rebuttal, the Commonwealth sought to introduce the entire forensic interview as a prior consistent statement under Rule of Evidence 613(c). The trial court granted the request and Raboin was convicted on all counts. Two days after sentencing, the Superior Court issued its opinion in Commonwealth v. Bond, which essentially held that a forensic interview is not admissible in these circumstances under Rule 613. So, on appeal, the Commonwealth argued that the evidence was admissible under Rule 106 and abandoned its argument regarding Rule 613. The Superior Court affirmed based on Rule 106. The Supreme Court reversed, finding that Rule 106 allows introduction of that portion of a statement necessary to correct the misleading impression. Here, the trial court permitted the Commonwealth to present all but roughly two pages of the more than forty page forensic interview transcription; far more than necessary to correct any misleading impression. But, instead of granting a new trial, the majority remanded to the Superior Court to determine if the statement was admissible nonetheless under Rule 613. That, notwithstanding the fact the Commonwealth abandoned that argument on appeal and the Supreme Court had the right, the power, and some may argue the duty to resolve that issue. How many criminal defense appellate attorneys are given the chance afforded the Commonwealth here to go back and argue a ground that they never argued in the first place? Dare I say none? This case is evidence that judges should not be elected.

RABOIN

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