Com. v. Pugh, R. ( 2014 )

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2014 Pa. Super. 221
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MICHAEL PUGH,
Appellant No. 343 EDA 2012
Appeal from the Judgment of Sentence entered December 19, 2011
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000303-2010.
BEFORE: GANTMAN, P.J., FORD ELLIOT, P.J.E., BENDER, P.J.E., PANELLA,
DONOHUE, ALLEN, LAZARUS, MUNDY AND OLSON, JJ.
CONCURRING OPINION BY OLSON, J.: FILED OCTOBER 07, 2014
with respect
Therefore, I write separately.
In his second issue on appeal, Appellant contends that the trial court
1
Specifically,
Appellant arg
that she was a virgin when that representation could not have been true
The learned
1
At times, Alverio is identified as Rocky Alverio; however, his name is Raziel
Alverio. See N.T., 9/15/11, at 3.
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See Majority Opinion,
ante at 8-9. However, I do not believe that the Rape Shield Law is
applicable in this case.
The Rape Shield Law provides that:
sexual conduct shall not be admissible in prosecutions under this
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.
word conduct does not include prior sexual assaults and that evidence of
prior sexual assaults is admissible as long as such evidence is relevant and
material u Commonwealth v. Fink,
791 A.2d 1235, 1241 (Pa. Super. 2002) (emphasis added; internal quotation
marks and footnote omitted), citing Commonwealth v. Johnson, 638 A.2d
940, 942 (Pa. 1994); see Commonwealth v. Holder, 815 A.2d 1115,
1118-1119 (Pa. Super. 2003), appeal denied, 827 A.2d 430 (Pa. 2003)
(citation omitted); Commonwealth v. L.N., 787 A.2d 1064, 1069 (Pa.
Super. 2001), appeal denied, 800 A.2d 931 (Pa. 2002) (citation omitted). In
this case, any sexual contact between Alverio and S.P. was a sexual assault
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as S.P. had yet to reach the age of consent.2 See 18 Pa.C.S.A. § 3122.1
(age of consent in Pennsylvania is 16); Commonwealth v. Slocum, 86
A.3d 272, 283 n.3 (Pa. Super. 2014) (same). Accordingly, evidence of
protected by the Rape Shield Law, and, therefore, the Rape Shield Law does
not apply to this case.
Shield Law was
misplaced, its ultimate conclusion to bar further examination of Alverio
medical center that she was a virgin was medically false. See
Brief at 42. The trial court permitted Alverio to be examined regarding the
fact that he had sexual intercourse with S.P. See N.T., 9/15/11, at 17.
Thus, the jury was made aware of the fact that Appellant was attempting to
elicit. Any further inquiry would have had no probative value and would
have been highly prejudicial. Thus, the evidence was properly excluded.
See
3
v see also
2
Alverio pled guilty to statutory sexual assault for the sexual contact
between himself and S.P. See Commonwealth v. Alverio, CP-45-CR-
0000995-2010.
3
The quoted text is that of the former Rule 403, which was in place at the
March 18, 2013, former Rule 403 was
(Footnote Continued Next Page)
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Commonwealth v. Turner, 73 A.3d 1283, 1286 n.5 (Pa. Super. 2013),
appeal denied
In his third issue on appeal, Appellant argues that the trial court erred
recorded. The learned majority concludes that the trial court had
ante
at 10. My review of the jury charge reveals that, although the jury
, the credibility of witnesses and
interrogation was not addressed. See N.T., 9/19/11, at 96-126. However, I
ultimately agree that the trial court did not abuse its discretion in declining
interrogation.
Appellant implicitly argues that the failure to record his custodial
interrogation violated his right to due process. In Commonwealth v.
Harrell, a panel of this Court held that the due process clause of the
Pennsylvania Constitution does not require that custodial interrogations be
recorded. 65 A.3d 420, 429 (Pa. Super. 2013), citing Commonwealth v.
_______________________
(Footnote Continued)
rescinded and replaced with current Rule 403. See 43 Pa.B. 620 (Feb. 2,
2013).
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Craft, 669 A.2d 394 (Pa. Super. 1995) (Del Sole, J. opinion announcing the
judgment of the court).
the Pennsylvania Constitution guarantee due process protections. Our
Commonwealth v. Nase, 2014 WL 4415061, *2 (Pa. Super. Sept. 9,
2014). (footnote and citation omitted). Thus, the question is whether
recording is required under the Fourteenth Amendment of the United States
Constitution.
There is no authority for the proposition that recording is required by
the Fourteenth Amendment. The Alaska Supreme Court is the only court to
have held that failure to record a custodial interrogation violates a
Const
Stephan v. Alaska, 711 P.2d 1156, 1162-1165 (Alaska 1985). This issue
has been litigated in courts throughout the country for at least three decades
and not a single jurisdiction has held that recording is required by the
Fourteenth Amendment. Federal Courts have similarly aligned themselves
with this view. At least 11 United States Courts of Appeals have held that
neither the Fifth nor Fourteenth Amendment requires that custodial
interrogations be recorded.4 See United States v. Meadows, 571 F.3d
4
The same due process requirements that apply to the states through the
Fourteenth Amendment apply to the federal government through the Fifth
(Footnote Continued Next Page)
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131, 147 (1st Cir. 2009); United States v. Tykarsky, 446 F.3d 458, 477
requiring the recording of interrogations may be, it is clear that such
United
States v. Williams per curiam);
United States v. Cardenas, 410 F.3d 287, 296 (5th Cir. 2005); United
States v. Smith, 319 F. per curiam);
United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004);
United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005); United
States v. Toscano-Padilla, 996 F.2d 1229 (9th Cir. 1993) (table) (per
curiam); United States v. Zamudio, 211 F.3d 1279 (10th Cir. 2000)
(table); United States v. Boston
(per curiam); United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988).
In Harrell, this Court restated the law as it stood when Craft was
decided, i.e., only two states required custodial interrogations to be
recorded.5 Harrell, 65 A.3d at 429. The laws of our sister states have
_______________________
(Footnote Continued)
Amendment. Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991)
(citation omitted).
5
In addition to Alaska, the Minnesota Supreme Court required (and still
requires) recording pursuant to its supervisory authority. Minnesota v.
Scales, 518 N.W.2d 587, 591-592 (Minn. 1994).
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changed significantly since Craft.6 Today, 24 states and the District of
Columbia require the recording of custodial interrogations in certain
circumstances and Vermont will begin requiring such recording in October
2015.7 See Stephan, 711 P.2d at 1162-1165; Ark.R.Crim.P. 4.7; Cal. Penal
Code § 859.5; Conn. Gen. Stat. § 54-1o; D.C. Code § 5-116.01; 705
Ill.Comp.Stat. 405/5-401.5; 725 Ill.Comp.Stat. 5/103-2.1; Ind.R.Evid. 617;
Me. Rev. Stat., title 25, § 2803-B(1)(K); Md. Code, Crim. Proc. § 2-402;
Mich. Comp. Laws § 763.8; Minnesota v. Scales, 518 N.W.2d 587, 591-
592 (Minn. 1994); Mo. Rev. Stat. ch. 590.700; Mont. Code § 46-4-408; Neb.
Rev. Stat. § 29-4503; N.J.R.Crim.P. 3:17; N.M. Stat. § 29-1-16; N.C. Gen.
Stat. § 15A-211; Ore. Rev. Stat. § 133.400; Tex. Code Crim. Proc., art.
6
See Compendium: Electronic Recording of Custodial
Interrogations (July 11, 2014), available at
http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=33287&libID=33256
(last accessed Sept. 15, 2014).
7
Each state differs with respect to the scope of its recording requirement.
In some states, all custodial interrogations must be recorded. Other states
only require that a custodial interrogation be recorded if police are
investigating certain enumerated offenses. Furthermore, some states have
certain exceptions to the recording requirement. For example, some states
do not require a custodial interrogation be recorded if the person being
interrogated requests that the interrogation not be recorded. As the exact
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38.22; Wis. Stat. § 968.073; see also 2014 Vt. Adv. Legis. Serv. 193
(effective Oct. 1, 2015).8
Although beginning next year, a majority of jurisdictions in the United
States will require custodial interrogations to be recorded in certain
circumstances, that does not alter my analysis of the discrete issue of
whether the Fourteenth Amendment requires the recording of custodial
interrogations. On that issue, states are unanimous that it does not.
The fact that the Fourteenth Amendment does not require the
recording of custodial interrogations is not dispositive of whether the trial
court abused its discretion in rejecting a jury instruction regarding the
court in this Commonwealth has addressed the issue of whether a trial court
is required to give such an instruction when so requested by the defendant.
At least two states require a jury instruction upon request when an
interrogation is not recorded. Massachusetts v. DiGiambattista, 813
8
Appellant argues that Iowa, New Hampshire, and Massachusetts also
mandate recording of custodial interrogations. Those three jurisdictions,
however, have not implanted mandatory recording. See Iowa v. Hajtic,
particularly videotaping, of custodial interrogations should be encouraged,
Massachusetts v.
DiGiambattista, 813 N.E.2d 516, 532-535 (Mass. 2004) (requiring a jury
instruction be given if a custodial interrogation is not recorded); New
Hampshire v. Barnett, 789 A.2d 629, 632-633 (N.H. 200
incomplete recording of an interrogation results in the exclusion of the tape
recording itself, evidence gathered during the interrogation may still be
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N.E.2d 516, 533 (Mass. 2004); N.J.R.Crim.P. 3:17(e). The instruction is
required in Massachusetts, however, because failing to record an
interrogation goes against the preferred procedure of the Supreme Judicial
Court of Massachusetts. DiGiambattista, 813 N.E.2d at 533. Likewise, the
failure to record an interrogation violates a rule of criminal procedure in New
Jersey; thus, such an instruction has been mandated. In Pennsylvania;
however, no statute, rule of court, or court decision mandates that custodial
interrogations be recorded. Thus, the reasons that an instruction is
appropriate in Massachusetts and New Jersey do not apply to Pennsylvania.
The proposed instruction submitted by Appellant instructs the jury that
the failure to record an interrogation can be considered when determining
voluntary. A criminal defendant is not entitled to a jury instruction regarding
credibility. See Commonwealth v. Stoltzfus, 337 A.2d 873, 883 (Pa.
charge requested would have given undue weight to a single factor in the
. . the trial court acted
Commonwealth
v. Powers, 577 A.2d 194, 197 (Pa. Super. 1990).
Furthermore, if this Court were to require such an instruction upon
request in all cases in which an interrogation was not recorded, it would
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strongly suggest that such recording is mandatory. As noted below, that is
not the job of this Court. As such, I conclude that the trial court did not
nstruction.
confusion. The learned majority states that:
Furthermore, we note that [Appellant] cites to no legal authority
requiring instructions on the absence of recorded interrogations.
Indeed, while acknowledging that recording such interrogations
is not mandatory in Pennsylvania, Appellant invites us to create
such a rule. Creation of such a rules and regulations, however,
is a role reserved for the General Assembly, not the courts.
Majority Opinion, ante at 10-11 n.10. I do not interpret this footnote as
prohibiting a trial court from giving an instruction similar to that requested
by Appellant in this case. Instead, the learned majority merely holds that
there is no requirement that such an instruction be given. Accordingly, I
believe that there is no legal prohibition to giving such an instruction if a trial
court, in the exercise of its discretion, believes such an instruction is
appropriate under the facts and circumstances of the case before it.
statement that only the General Assembly may create a rule requiring that
custodial interrogations be recorded. As noted above, although a majority of
states that have adopted such a rule have done so through the legislative
process, one court of last resort has done so under its supervisory authority
and three jurisdictions have done so through rulemaking authority. Thus,
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such a rule can be promulgated by either our Supreme Court or our General
Assembly, and not just our General Assembly. See Harrell, 65 A.3d at 450
-based decision to compel recordation of
all police interrogations is a step that we, as an intermediate appellate court,
cannot take. Our legislature and our Supreme Court are empowered to do
In sum, I believe that the Rape Shield Law is not applicable in this case;
however, further examination of Alverio was properly excluded pursuant to
Pennsylvania Rule of Evidence 403. I also believe that the jury charge did
however, the trial court did not abuse its discretion in declining to give
be affirmed.
Judge Donohue joins this Concurring Opinion.
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