Com. v. Brown, D. ( 2018 )

J-A32016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 466 MDA 2017
DAYAR D. BROWN
Appeal from the Order Entered March 15, 2017
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000400-2016
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 06, 2018
Appellant, Commonwealth of Pennsylvania (“Commonwealth”), appeals
from the March 15, 2017 Order entered in the Centre County Court of Common
Pleas, which, inter alia, denied the Commonwealth’s Motion to Preserve the
Rape Shield Law and granted Appellee’s Motion in Limine to present evidence
of Complainant’s prior sexual conduct. Upon careful review, we reverse.
FACTUAL AND PROCEDURAL HISTORY
The factual and procedural history, as gleaned from the trial court’s
Opinion, are as follows. On October 28, 2015, 16-year-old G.L.
(“Complainant”) visited her co-worker, 22-year-old Appellee, at his
apartment. Complainant alleges that she entered Appellee’s bedroom where
he proceeded to rape her. Appellee concedes that he had sexual intercourse
with Complainant, but maintains that the sexual intercourse was consensual.
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* Retired Senior Judge assigned to the Superior Court.
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On November 6, 2015, Complainant sought medical treatment at
Planned Parenthood and disclosed that Appellee raped her. Planned
Parenthood contacted the Pennsylvania State Police (“PSP”).
On November 7, 2015, Complainant met with the PSP. Complainant
told the PSP that Appellee did not wear a condom during the alleged rape and
seminal fluid was present on her lower body afterwards. Complainant
informed the PSP that she had not washed the clothing that she wore on the
evening of the alleged rape.
Complainant provided the clothing that she wore that night to the PSP,
who sent it to the PSP Crime Lab for testing. The PSP Crime Lab found
spermatozoa, or semen, on Complainant’s underwear and proceeded to
conduct a DNA test. The DNA test results excluded Appellee as the source of
the semen and identified another male (“Mr. D”) to be the source of the
semen.1
On March 30, 2016, the District Attorney charged Appellee with Rape by
Forcible Compulsion, Sexual Assault, and Corruption of Minors.2 On February
27, 2017, the Commonwealth filed Motions in Limine, including, inter alia, a
Motion to Preserve the Rape Shield Law, which requested that the trial court
preclude Appellee from introducing evidence at trial concerning Complainant’s
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1Court documents only identify this minor male by his last name, and, thus,
we will refer to him as “Mr. D.”
2 18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3124.1; and 18 Pa.C.S. § 6301(a),
respectively.
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sexual conduct and/or reputation. On the same day, Appellee filed a Motion
in Limine seeking, inter alia, permission to introduce evidence of
Complainant’s sexual conduct.
Appellee sought to use the evidence of Mr. D’s semen on Complainant’s
underwear to demonstrate that Complainant had a sexual relationship with
Mr. D at the time of the alleged rape and thus, had a motive to testify falsely
that she did not consent to the sexual intercourse with Appellee in order to
preserve that relationship.3
The Commonwealth, in contrast, argued that at the time of the alleged
rape, Complainant had already terminated her relationship with Mr. D and
thus, she had no motive to testify falsely that she did not consent because
she had no relationship to maintain.
On March 13, 2017, the trial court held an in camera hearing on the
Motions in Limine. The Commonwealth called an expert witness, Jennifer
Marchland, a forensic scientist employed by the PSP Crime Lab who is an
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3 Appellee also proffered that the evidence was relevant to: (1) challenge
Complainant’s credibility by showing a prior inconsistent statement as to when
she last had sexual intercourse with Mr. D; and (2) show that Complainant
had a motive to fabricate the rape allegation so she could seek pregnancy and
STD testing at Planned Parenthood. The trial court rejected the introduction
of the proffered evidence for these purposes, concluding that it would be more
prejudicial than probative. See Findings of Fact, Conclusions of Law, and
Order, dated 3/15/17, at 5.
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expert in serology.4 Ms. Marchland testified that she tested Complainant’s
clothing and found spermatozoa, or semen, on the crotch area of
Complainant’s underwear. N.T., Motion, 3/13/17, at 69. She, however,
testified that it cannot be determined when or how the semen was deposited
onto Complainant’s underwear. Id. at 73. Ms. Marchland further testified
that no scientific test exists to determine how long ago semen was deposited
onto clothing. Id. at 70. She explained that detectable semen can last on
clothing for several years, survive under most conditions, survive multiple
launderings, and transfer from one article of clothing to another in a shared
washing machine. Id. at 70, 72-73.
Appellee presented no evidence refuting Ms. Marchland’s testimony that
it cannot be determined when Mr. D’s semen was deposited on Complainant’s
underwear.
On March 15, 2017, the trial court granted Appellee’s Motion in Limine
to permit introduction of Complainant’s sexual conduct with Mr. D, specifically
the introduction of DNA evidence showing the presence of Mr. D’s semen on
Complainant’s underwear. The trial court concluded that the evidence of Mr.
D’s semen on Complainant’s underwear was relevant to the issue of whether
Complainant was in an ongoing relationship with Mr. D. If Complainant were
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4 Ms. Marchland testified that serology is the study of blood. Ms. Marchland
explained, “[i]n forensic serology I examine and identify blood in addition to
other body fluids such as semen and saliva and urine. I also conduct hair
examinations and I conduct blood stain pattern analysis.” N.T. Motion,
3/13/17, at 65.
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involved in a relationship, the court opined, Complainant would have a motive
to testify falsely that she did not consent to alleged rape. See Findings of
Fact, Conclusions of Law, and Order, dated 3/15/17, at 4. The trial court then
concluded that the proffered evidence was more probative than prejudicial
and non-cumulative. Id.
On the same day, the trial court denied the Commonwealth’s Motion to
Preserve the Rape Shield.
The Commonwealth filed a timely Notice of Appeal. 5 Both the
Commonwealth and the trial court complied with Pa.R.A.P. 1925.
ISSUE ON APPEAL
The Commonwealth raises one issue for our review:
Did the [trial court] err in granting [Appellee]’s motion to pierce
Rape Shield protections in order to both cross examine a minor
rape victim and introduce extrinsic DNA evidence of her prior,
consensual, sexual relationship with an individual other than
[Appellee] and commit an abuse of discretion by denying the
Commonwealth’s Motion in [L]imine to exclude such irrelevant,
statutorily protected evidence?
Commonwealth’s Brief at 4.
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5 The trial court’s March 15, 2017 Order is an appealable collateral order
pursuant to Pa.R.A.P. 311(a). See Commonwealth v. Minich, 4 A.3d 1063,
1067-68 (Pa. Super. 2010) (holding that trial court's order denying
Commonwealth's in limine motion to exclude evidence of child rape victim's
alleged dishonest conduct, in that he had been caught lying in school, was an
appealable collateral order; resolution of issue did not require consideration
of defendant's guilt or innocence, child's privacy interests were matters of
paramount concern which were too important to be denied review until final
judgment, and in event of an acquittal, Commonwealth's ability to appeal the
evidentiary issue would be irreparably lost if review were postponed until after
final judgment, due to constitutional prohibition against double jeopardy).
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STANDARD OF REVIEW
This Court has established that a trial court’s ruling on the admissibility
of a sexual abuse victim’s prior sexual conduct will be reversed only where
there has been a clear abuse of discretion. Commonwealth v. K.S.F., 102
A.3d 480, 483 (Pa. Super. 2014). “An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is overridden or
misapplied or the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill will, as shown by the evidence or the record,
discretion is abused.” Id. (citation and quotation omitted).
THE RAPE SHIELD LAW
The Rape Shield Law restricts the introduction of evidence of a victim’s
past sexual conduct and provides, in pertinent part, as follows:
Evidence of specific instances of the alleged victim's past sexual
conduct, opinion evidence of the alleged victim's past sexual
conduct, and reputation evidence of the alleged victim's past
sexual conduct shall not be admissible in prosecutions under this
chapter except evidence of the alleged victim's past sexual
conduct with the defendant where consent of the alleged victim is
at issue and such evidence is otherwise admissible pursuant to the
rules of evidence.
18 Pa.C.S. § 3104(a). The purpose of the Rape Shield Law is “to prevent a
trial from shifting its focus from the culpability of the accused toward the virtue
and chastity of the victim.” Commonwealth v. Burns, 988 A.2d 684, 689
(Pa. Super. 2009) (citation omitted). Moreover, “[t]he Rape Shield Law is
intended to exclude irrelevant and abusive inquiries regarding prior sexual
conduct of sexual assault complainants.” Id.-6-
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The Rape Shield Law includes one statutory exception to the general
prohibition against evidence of victim’s past sexual conduct, namely the
admission of evidence of past sexual conduct with the defendant where
consent is at issue. See 18 Pa.C.S. § 3104(a). In addition, this Court has
recognized several other exceptions in an effort “to reconcile the effect of the
statute in excluding evidence with the accused's sixth amendment right to
confrontation and cross-examination.” Commonwealth v. Guy, 686 A.2d
397, 400 (Pa. Super. 1996). Established exceptions include evidence that
directly negates the act of intercourse with which a defendant is charged,
evidence demonstrating a witness' bias, or evidence that attacks credibility.
Commonwealth v. Allburn, 721 A.2d 363, 367 (Pa. Super. 1998). Notably,
“evidence tending to directly exculpate the accused by showing that the
alleged victim is biased and thus has a motive to lie, fabricate, or seek
retribution is admissible at trial.” Guy, supra at 400. In other words, the
evidence must be “relevant to exculpate the accused, more probative than
prejudicial, and non-cumulative in nature.” Id. at 401.
Piercing the Rape Shield Law
Instantly, the Commonwealth avers that the trial court abused its
discretion when it allowed Appellee to pierce the Rape Shield Law.
Commonwealth’s Brief at 10. The Commonwealth argues, as an initial matter,
that the evidence of Mr. D’s semen on Complainant’s underwear is not relevant
to establish whether, at the time of the alleged rape, Mr. D and Complainant
were involved in a relationship because Ms. Marchland testified that it cannot
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be determined when or how the semen was deposited on the underwear. Id.
at 20. We agree.
The trial court erred by ignoring the undisputed expert testimony that it
could not be determined from the semen sample when Complainant and Mr.
D had sex. The trial court instead erroneously concluded that the existence
of the semen itself is relevant because it can permit the fact-finder to
determine whether there was an ongoing relationship between Complainant
and Mr. D at the time of the alleged rape. However, the expert could not
conclude when Mr. D deposited semen on Complainant’s underwear. Thus,
the presence of Mr. D’s semen on Complainant’s underwear does not make it
any more or less likely that, on the night of the alleged rape, Complainant was
in an ongoing relationship with Mr. D and would thereby have a motive to
testify falsely that she did not consent to the rape.
In light of the fact that the evidence is irrelevant to the issue of whether
Complainant had a motive to fabricate, questioning Complainant about the
sexual nature of her relationship with Mr. D serves no purpose other than to
shift focus “from the culpability of the accused toward the virtue and chastity
of the victim[,]” which is exactly what the Rape Shield Law was intended to
prevent. Burns, supra at 689.
This holding, however, does not preclude Appellee’s counsel from cross-
examining Complainant about her alleged ongoing romantic relationship with
Mr. D in order to attempt to establish that Complainant had a relationship with
Mr. D at the time of the alleged rape and, thus, Complainant had a motive to
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lie about the lack of consent. Appellee’s counsel, however, cannot ask about
the sexual nature of that relationship because the evidence of the sexual
nature of the relationship is not relevant and is highly prejudicial. See
Commonwealth v. Poindexter, 539 A.2d 1341, 1344 (Pa. Super. 1988)
(concluding that defendant could attempt to show the victim’s motive to
fabricate rape allegations by presenting evidence of her romantic relationship
with her boyfriend, but evidence that the relationship was sexual in nature
was non-probative and highly prejudicial).
In sum, we find that the trial court erred in denying the Commonwealth’s
Motion in Limine to Preserve the Rape Shield Law and granting Appellee’s
Motion in Limine to present evidence of Complainant’s prior sexual conduct.
Upon remand, the trial court shall preclude Appellee from questioning
Complainant about the sexual nature of her relationship with Mr. D and from
introducing into evidence Complainant’s underwear that contained Mr. D’s
semen.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/06/2018
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