Background
Timothy Tarver was tried in Delaware County on charges arising from sexual abuse reported by A.H., who was eleven when police first interviewed her and fifteen by the time of trial. A.H. described three incidents, beginning when she was seven or eight, and testified that Tarver forced sexual contact on her. The jury also watched her recorded forensic interview. Tarver called no witnesses and did not testify.
The jury acquitted Tarver of rape of a child and corruption of minors but convicted him of indecent assault of a person under thirteen. On appeal, he argued first that the evidence was insufficient because the jury’s mixed verdict showed that it did not fully credit A.H. He also challenged a hearsay ruling that prevented him from eliciting testimony from Officer Robert Graves about statements A.H.’s stepmother, J.H., had made during a police interview.
Tarver characterized the proposed testimony as impeachment. According to his theory, A.H. had made statements to J.H. that differed from her trial testimony, and J.H. later repeated those statements to Graves. Tarver relied on Pennsylvania Rule of Evidence 613(b), which permits extrinsic evidence of a witness’s prior inconsistent statement when the required foundation is laid. The Commonwealth responded that the proposed account contained two separate out-of-court statements and that Tarver never called J.H.
The Court’s Holding
The Superior Court affirmed the conviction. Judge Nichols explained that A.H.’s testimony, if believed, established every element of indecent assault. A verdict need not be internally consistent across separate counts, and an acquittal cannot be used to impeach a conviction that rests on sufficient evidence. The jury was free to accept parts of the testimony and reject others, so its acquittals on the remaining charges did not make the indecent-assault evidence legally inadequate.
The panel also upheld the exclusion of Graves’s proposed testimony. The evidence involved two layers: A.H.’s alleged statement to J.H., followed by J.H.’s account of that statement to Graves. Rule 613(b) might provide a route for proving A.H.’s own inconsistent statement after the proper foundation, but Tarver did not explain why J.H.’s separate out-of-court statement to Graves was admissible. Each layer of hearsay needs its own exception or non-hearsay purpose.
Calling the evidence impeachment did not solve the problem. To show that A.H. had actually told J.H. something different, the factfinder would have to accept as true J.H.’s assertion to Graves that the conversation occurred. Tarver also did not call J.H. and therefore could not satisfy Rule 613(b) through her. In any event, any error was harmless because defense counsel directly cross-examined A.H. and her father about the alleged inconsistency.
Key Takeaways
- Each level of a layered out-of-court account must independently satisfy the hearsay rules.
- Rule 613(b) does not automatically permit a police witness to repeat someone else’s description of a witness’s prior statement.
- A party must disclose the prior statement to the witness and provide an opportunity to explain or deny it before using extrinsic evidence.
- Mixed verdicts do not undermine an otherwise sufficient conviction because juries may credit testimony selectively.
Why It Matters
Tarver gives Pennsylvania trial lawyers a practical warning about impeachment by proxy. When a witness allegedly spoke to an intermediary who then spoke to police, counsel should identify the admissibility theory for both conversations. The cleanest route may require calling the intermediary, laying the Rule 613 foundation with the trial witness, and explaining whether the evidence is offered for truth or only to expose inconsistency.
The decision also reinforces the limited role of consistency review. Defense counsel cannot turn acquittals on related counts into a sufficiency argument on the count of conviction. The proper question remains whether the evidence, viewed in the Commonwealth’s favor, proves that count’s elements. Evidentiary objections and offers of proof should therefore be made precisely and preserved independently of any anticipated verdict pattern.