Com. v. Grove, M. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL JOSEPH GROVE, : No. 1183 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, July 3, 2014,
in the Court of Common Pleas of Washington County
Criminal Division at No. CP-63-CR-0001264-2012
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 12, 2016
Michael Joseph Grove appeals the judgment of sentence in which the
Court of Common Pleas of Washington County sentenced him to serve a
term of five to ten years’ imprisonment for sexual assault, 18 Pa.C.S.A.
§ 3124.1, and a consecutive term of two and one-half to five years’
imprisonment for indecent assault by forcible compulsion or threat of forcible
compulsion, 18 Pa.C.S.A. § 3126(a)(2), for a total term of imprisonment of
seven and one-half to fifteen years.
The facts as recounted by the trial court are as follows:
During trial, the jury heard evidence that on
April 14, 2012, “Victim”) was participating in a social
event at an on campus residence following California
University of Pennsylvania’s annual alumni rugby
game when she was assaulted by Michael Joseph
Grove (hereinafter referred to as [appellant]. At the
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time of the incident, Victim was a freshman at
California University of Pennsylvania.
On the morning of April 14, 2012, Victim was
participating in a rugby event at the University.
During the course of the rugby match, Victim
encountered [appellant], who was serving as a
referee. Victim testified that there was alcohol
present at the game, but she did not imbibe any
alcohol.
After the matches concluded, members of the
team and the alumni, including Victim, returned to a
residence that was referred to as the “rugby house.”
Victim did not reside at the rugby house. Victim and
some fellow teammates then attended a social event
held for the alumni game at McMonagle’s Pub
nearby.
Victim testified that alcohol was served at the
pub, but Victim did not drink any alcohol. Victim
testified she was given a wristband by the pub to
indicate she was not twenty-one (21) years of age.
Victim testified that she again encountered
[appellant] at the pub. Victim explained that
although she did not know [appellant] by name,
when she saw [appellant] at the pub she recognized
him as the rugby referee and they acknowledged one
another by nodding heads at each other. She further
testified that as she proceeded to walk by
[appellant], he tapped Victim on her butt.
Later that evening, Victim joined other
members of the male and female rugby teams and
left the pub and returned to the rugby house. While
at the rugby house, Victim re-encountered
[appellant] as she stood in the kitchen waiting to use
the bathroom.
Victim made conversation with [appellant] until
the bathroom became available. Victim stated to
[appellant] that he did a poor job of refereeing the
rugby match. At that point, [appellant] grabbed
Victim’s arm and pulled her close to him and he said
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to her, “let me make it up to you.” Victim tried
pushing [appellant] away, but he continued to pull
her close to him and repeating [sic] “let me make it
up to you.” Victim testified that the actions made
her uncomfortable and she tried telling [appellant]
she was gay to turn him off.
The bathroom door opened and [appellant]
quickly dropped his grasp of the Victim. Victim’s
friend Rachel Schleicher exited the bathroom. After
Ms. Schleicher exited the kitchen, Victim testified
that she was immediately forcibly drug [sic] into the
bathroom by [appellant]. Victim further testified
that the bathroom door was locked behind her.
Victim indicated that the incident happened very
quickly and she did not yell for help. Victim also
indicated that there was no one in the kitchen to yell
to for help. She indicated that the television and
music were being played loudly from the other room
and did not believe anyone would hear her.
Victim testified that after the bathroom door
was shut and locked behind her, [appellant] began
kissing her face. Victim testified that she attempted
to push away from [appellant]. However,
[appellant] began touching her vaginal area. Victim
indicated she had spandex on under her sweatpants,
so [appellant’s] hand, despite his efforts, did not
come into skin contact with her vaginal area. Victim
continued to try to push away, but [appellant] kept
pulling her close to him with one hand. Victim
further testified that [appellant] continuously
attempted to force Victim to touch and stroke his
penis. [Appellant] then grabbed Victim’s pigtail and
tried shoving his penis into her mouth. However,
Victim testified that she kept her mouth shut, so
[appellant’s] penis touched her lips and teeth, but
did not pass that point into her mouth. Testimony
demonstrated that after [appellant] was unsuccessful
in putting his penis into Victim’s mouth, he began
kissing her neck and ear.
Victim testified that during the assault she
began trying to find her cell phone to reach out for
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help. Victim indicated that she found her phone and
texted her friend, Rachel Schleicher. Victim testified
that she had exchanged text messages with
Ms. Schleicher earlier in the day, so her name was
[at] the top of her text message list. Testimony
demonstrated that Victim held her phone away from
her body for fear that [appellant] would see her.
Therefore, Victim was blindly attempting to text
message Ms. Schleicher “Help.” However, Victim’s
first attempted text message to Ms. Schleicher
spelled out the word “hall.” Following the word
“hall,” Victim typed “help plz.”
Ms. Schleicher testified that she was sitting in
a bedroom with Ashley Dixon when she received a
text message from the Victim. Ms. Schleicher
responded to the message and inquired where Victim
was located. Victim responded via text message that
she was in the bathroom. Soon thereafter,
Ms. Schleicher began knocking on the door and
attempting to enter the locked bathroom.
As soon as Ms. Schleicher began pounding on
the bathroom door, [appellant] threw Victim off of
him and pushed her into the corner. Ms. Schleicher
then yelled out “let me in or I’m going to have to
break in.” Ms. Schleicher testified that she ran to
get a butter knife to try to unlock the door.
Defendant then proceeded to unlock the door and
exit. As Ms. Schleicher is [sic] retrieving the butter
knife, she testified that the door opened and
[appellant] was standing in the doorway.
Victim testified she remained on the bathroom
floor and began hysterically crying. Ms. Schleicher
consoled her. Victim then texted her boyfriend,
Joseph Arafa, who came to the house. Testimony
demonstrated that at some time after Ms. Schleicher
left the bedroom, [appellant] came in and began
talking to Ashley Dixon. Ms. Dixon testified that
[appellant] stated “someone should go get that girl,
she is pretty drunk.” As Victim was exiting the
bathroom, Victim saw [appellant] sitting on a bed in
a bedroom talking to Ms. Dixon. Victim then
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informed Mr. Arafa and Ms. Schleicher that
[appellant] had assaulted her. Ms. Schleicher then
began yelling for [appellant] to get out of the house.
Victim remained at the house as the police
were called to the scene. Officer Timothy Sheehan,
of the California Borough Police Department, arrived
at the scene and testified that when he arrived the
Victim was crying hysterically. He took a verbal
statement from the Victim. Officer Sheehan further
testified that the Victim came to the police station
the next day or so and gave a written statement.
Based on the information received, Officer Sheehan
filed criminal charges against [appellant].
Trial court opinion, 7/9/15 at 5-9 (footnotes omitted).
The jury found appellant guilty of the two charges on which he was
sentenced and not guilty of the charges of involuntary deviate sexual
intercourse by forcible compulsion, 18 Pa.C.S.A. § 3123(a)(1), and simple
assault, 18 Pa.C.S.A. § 2701(a)(1).
Appellant raises the following issues for this court’s review:
I. DID THE TRIAL COURT ERR IN PERMITTING
TERTIMONY [SIC] THAT APPELLANT HAD
GRABBED OR TOUCHED THE BUTTOCKS OF
WOMEN OTHER THAN THE VICTIM ON THE
NIGHT OF THE INCIDENT IN QUESTION?
II. DID THE TRIAL COURT ERR IN PERMITTING
THE COMONWEALTH [SIC] TO REPEATEDLY
ELICIT TESTIMONY THAT APPELLANT WAS
KNOWN AS “CHESTER” OR HAVE IT’S [sic]
WITNESSES REFER TO APPELLANT BY THE
NICKNAME “CHESTER” AND IN NOT GRANTING
APPELLANT’S MOTION FOR MISTRIAL?
III. DID THE TRIAL COURT ERR IN NOT
PERMITTING TRIAL COUNSEL TO INTRODUCE
TWEETS THAT COULD HAVE BEEN PROVEN TO
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BE WRITTEN BY ALLEGED VICTIM AFTER THE
INCIDENT THAT FORMED THE BASIS OF THE
CHARGES AGAINST APPELLANT, IN WHICH
SHE TALKED ABOUT SMOKING KUSH[1] AND
CONSUMING ALCOHOL, WHERE THE
COMMONWEALTH INTRODUCED EVIDENCE OF
HER CONDITION AFTER THE INCIDENT,
WHICH WAS INCONSISTENT WITH THE
STATEMENTS MADE IN SAID TWEETS?
Appellant’s brief at 5.
This court’s standard of review regarding the admissibility of evidence
is as follows:
Our standard of review regarding the admissibility of
evidence is an abuse of discretion. The admissibility
of evidence is a matter addressed to the sound
discretion of the trial court and . . . an appellate
court may only reverse upon a showing that the trial
court abused its discretion. An abuse of discretion is
not a mere error in judgment but, rather, involves
bias, ill will, partiality, prejudice, manifest
unreasonableness, or misapplication of law.
Commonwealth v. Cox, 115 A.3d 333 (Pa.Super. 2015). The standard of
review for the admission of prior bad acts is also an abuse of discretion
standard. Commonwealth v. Trippett, 932 A.2d 188 (Pa.Super. 2007).
Initially, appellant contends that the trial court erred when it permitted
testimony that appellant had grabbed or touched the buttocks of women
other than the victim on the night of the incident in question. The trial court
did not order the redaction of any reference to other women and did not
issue a cautionary jury instruction. Further, appellant alleges that the trial
1
“Kush” refers to high grade marijuana.
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court failed to weigh the probative value of the evidence versus the
prejudicial effect on appellant as required under Pa.R.E. 403. Appellant also
argues that the Commonwealth failed to comply with Pa.R.E. 404(b)(3)
because it did not provide notice that it intended to introduce evidence of
appellant’s bad acts.
Specifically, appellant points to two separate incidents during the
course of the trial. First, the Commonwealth chose to have the victim read
the entire statement which she gave to the police in open court:
After the tournament, there was a social for all
teams and sirs[2] to attend at McMonagle’s Pub.
While the teams, as well as [appellant] was at the
pub, [appellant] made sexual remarks and kept
grabbing my buttocks. But this was not happening
only to myself but to other teammates and other
girls.
Notes of testimony, 12/9/13 at 164.
Prior to the reading of this statement, appellant’s counsel objected on
the basis that touching other women was “other criminal conduct” as an
indecent assault. (Id. at 158.) The trial court overruled the objection.
Second, appellant refers to testimony from Meaghan Juba (“Juba”),
another rugby player, who testified regarding appellant’s touching the
2
In rugby, the referee is known as “sir.”
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buttocks of women at McMonagle’s.3 Appellant’s counsel objected. The trial
court overruled the objection.
Regarding the two statements, the trial court opined:
During cross examination, Victim was
questioned at length about her recollection of the
events of April 14, 2012. Further, Victim was
questioned several times by defense counsel about
her written statement in connection with what she
had testified to on direct examination.
3
The Commonwealth questioned Juba:
Q: Is there anything you remember about
[appellant] at McMonagle’s?
A: Yeah. He was going around . . . trying to pick
up some girls, but grabbing butts as well.
Q: What do you mean by grabbing butts?
A: Well, a couple times when I wasn’t paying
attention, I would feel someone walk by and
grab my butt. It was kind of like a grab. And I
would turn around and kind of give him . . .
like a what are you doing look, like who are
you. And he would kind of look at me and
walk away. He was doing that to other girls at
the bar.
....
Q: Did you know anyone else, in particular, other
than yourself, that he grabbed their butt?
A: I saw him grab the victim’s and Dixon’s and
Rachel’s, but not like too, too much. I mean,
there is a lot . . . grabbing going on at bars, so
nothing out of the ordinary too, too much.
Id. at 310-311.
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The Trial Court submits that the written
statement read into evidence by Victim was
admissible as a prior consistent statement as
rebuttal to the cross-examination questions
attempting to paint the statement as a prior
inconsistent statement.
Pennsylvania Rule of Evidence 613(c)
states:
Evidence of a prior consistent statement
by a witness is admissible for
rehabilitation purposes 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’ denial or explanation.
In Commonwealth v. Swinson, 626 A.2d
627 (Pa.Super. 1993), the Pennsylvania Superior
Court determined that a detective was permitted to
read from his report statements made to him by a
victim/witness during an interview regarding the
incident in question. The Superior Court opined that
the witness was subject to extensive cross-
examination and that the statement was merely a
prior consistent statement offered to rehabilitate the
witness, whose credibility was attacked.
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The Trial Court finds the Swinson reasoning
analogous and persuasive to the matter at bar. A
review of the transcripts revealed that the Victim
was subject to extensive cross-examination of her
recollection of the events on April 14, 2012, with the
design of casting doubt on her memory and general
credibility. Defense counsel, by bringing out
inconsistencies in the Victim’s testimony, clearly
advanced the issue of Victim’s credibility. Therefore,
it was not error for the Trial Court to permit the
Victim to read her written statement that she made
to the police in order to rehabilitate and rebut any
claim of inconsistency with respect to her prior
testimony.
....
[A]ppellant asserts the Trial Court erred in
permitting the testimony of Commonwealth witness
Megan [sic] Juba. . . . [Appellant] claims that such
conduct was uncharged criminal conduct and the
Commonwealth provided no notice and the
testimony was extremely prejudicial.
....
Preliminarily, the Trial Court reiterates that
evidentiary decisions will not be disturbed absent an
abuse of discretion. During direct examination of
Victim, the prosecution introduced evidence that
[Appellant] had “tapped” the Victim on the butt at
McMonagle’s Bar, prior to the assault in question.
No objection to the questioning was lodged by
defense counsel. On cross-examination of the
Victim, the matter was rekindled by defense counsel.
However during redirect examination of Victim,
defense counsel stated an objection asserting that
any testimony or evidence that [Appellant] touched
the buttocks of other individuals, not a party to this
matter, should be barred as it is uncharged criminal
conduct. The Trial Court reasoned that it was
appropriate to enter evidence of [Appellant] touching
and grabbing butts of people other than the Victim,
on the evening in question.
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Initially, the Trial Court observed that during cross
examination of Victim, defense counsel alleged that
the Victim consented to the assault by inferring that
because Victim was touched on the butt at the bar,
she should have been fearful of [appellant] later that
evening. Defense counsel urged that in the kitchen
of the rugby house, the Victim should have either left
the room or cried out for help.
....
The Trial Court submits that it did not abuse its
discretion in admitting evidence of the [appellant]
touching and/or grabbing butts of individuals other
than the Victim, during the course of the evening in
question. During cross examination of Victim,
defense counsel attempted to present a defense that
the Victim consented to the activity. Defense
counsel asked numerous questions as to why the
Victim did not run away or yell for help after she
knew that the [appellant] had already grabbed her
butt at the bar. This line of questioning inferred that
because [appellant] grabbed her butt at the bar, she
should have been alarmed and fearful of him later in
the evening when they were alone in the kitchen.
Testimony demonstrating that [appellant] grabbed
the buttocks of others exhibited that there was no
indication to Victim that the [appellant] was
targeting her. Accordingly, there was no reason for
her to be on guard that there may be an impending
sexual assault. Moreover, such evidence showed a
lack of consent and that the grabbing was not a
prelude to consensual sexual activity, rebutting any
inference by the defense that the Victim consented
to sexual contact.
We have recognized that evidence of
prior bad acts or crimes may be admitted
to show motive, intent, absence of
mistake or accident, common scheme,
plan, or design, or identity of the
perpetrator of a crime. In addition,
evidence of other crimes may be
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introduced where such evidence was part
of the chain or sequence of events which
became part of the history of the cases
in question and formed part of the
natural development of the facts.
The evidence demonstrates [appellant’s]
motive and completes the picture of the actual
events of that night and the natural development of
the facts of the case. It [is] well established that:
Pennsylvania courts are not “required to
sanitize the trial to eliminate all
unpleasant facts from the jury’s
consideration where those facts are
relevant to the issues at hand and form
part of the history and natural
development of the events and offenses
for which the defendant is charged.”
After careful consideration, the probative value
of the evidence that the [appellant] grabbed the butt
of the individuals other than the Victim outweighs
any potential for prejudice. “Evidence of uncharged
crimes of the most serious and offensive nature has
been admitted pursuant to the res gestae
exception.” The prior bad acts in question were not
serious and offensive and were not described as
such. The [appellant] is not being tried in a vacuum
and the evidence did not invite the jury to determine
the matter on an improper basis. Therefore, there
was no abuse of discretion here.
Trial court opinion, 7/9/15 at 24-25, 34-35, and 37-38 (footnotes and
citations omitted).
This court finds no abuse of discretion by the trial court. First, as the
Commonwealth and the trial court stated, the evidence was not introduced
to establish appellant’s bad character in violation of Pa.R.E. 404. The
Commonwealth offered the evidence to counter the argument that the
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sexual assault was consensual because appellant earlier had grabbed the
victim’s buttocks and that her failure to yell or fight when he confronted her
at the Rugby House indicated that she was willing to engage in sexual
activity with appellant. This evidence indicated that while appellant grabbed
the victim’s buttocks, he did the same to other people.
Second, the Commonwealth did not need to provide notice of its
intention to introduce this evidence because the Commonwealth only did so
in response to the appellant’s argument that the sexual activity was
consensual. As the trial court stated, appellant opened the door to this
evidence when he suggested that the victim was aware that appellant was
targeting her by this action. Evidence that he grabbed the buttocks of other
women refuted this contention. Third, this court finds that the trial court did
not abuse its discretion when it determined that the probative value of the
evidence outweighed the prejudicial effect.
Appellant next contends that the trial court erred when it permitted
the Commonwealth to repeatedly elicit testimony that appellant was known
as “Chester” or have the Commonwealth’s witnesses refer to appellant as
“Chester” and when it failed to grant a mistrial. Appellant argues that the
use of the name “Chester” is a shortened version of “Chester the Molester”
and the use of the name “Chester” when referring to appellant was so
prejudicial that a mistrial should have been granted. Appellant asserts that
a “Google” search on the internet of “Chester the Molester” resulted in
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103,000 results including a Wikipedia entry that “Chester the Molester” was
a comic character in Hustler magazine who was known for molesting women.
The victim testified that she had heard that appellant was called
“Chester.” (Notes of testimony, 12/9/13 at 36.) Appellant moved for a
mistrial which was denied. Later, Ashley Dixon also referred to appellant as
“Chester.” (Id. at 262.)
The trial court explained:
The Trial Court submits that the unsolicited
remark from the Victim did not rise to the level of
depriving the [appellant] of a fair and impartial trial
and there was no ground for a mistrial.
In the second instance, the Commonwealth
witness, Ashley Dixon, repeatedly referred to
[appellant] by his last name, “Grove.” The
prosecution queried whether Ms. Dixon always
referred to the [appellant] by his last name. In
response, Ms. Dixon stated that she previously
referred to the [appellant] as “Chester.” Defense
counsel again made a motion for mistrial.
The Trial Court observes that, “the remedy of a
mistrial is an extreme remedy required ‘only when
an incident is of such nature that its unavoidable
effect is to deprive the appellant of a fair and
impartial tribunal.’” The Trial Court asserts that the
prosecution had a good faith basis for the question
and that the mere passing reference of the name
“Chester” did not inflame the passions of the jury
such that [appellant] would be deprived of his right
to a fair and impartial jury. Accordingly, the Trial
Court discerned no prejudice to the [appellant] and
likewise found no grounds for a mistrial. (Footnote
omitted.)
Trial court opinion, 7/9/15 at 16.
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The standard governing our review of a trial
court’s refusal to grant a request for a mistrial has
been previously well summarized by this Court:
The decision to declare a mistrial is
within the sound discretion of the court
and will not be reversed absent a
“flagrant abuse of discretion.”
Commonwealth v. Cottam, 420
Pa.Super. 311, 616 A.2d 988, 997
(1992); Commonwealth v. Gonzales,
415 Pa.Super. 564, 570, 609 A.2d 1368,
1370-71 (1992). A mistrial is an
“extreme remedy . . . [that] . . . must
be granted only when an incident is of
such a nature that its unavoidable effect
is to deprive defendant of a fair trial.”
Commonwealth v. Vazquez, 421
Pa.Super. 184, 617 A.2d 786, 787-88
(1992) (citing Commonwealth v.
Chestnut, 511 Pa. 169, 512 A.2d 603(1986), and Commonwealth v.
Brinkley, 505 Pa. 442, 480 A.2d 980(1984)).
Commonwealth v. Stilley, 455 Pa.Super. 543, 689
A.2d 242, 250 (1997).
Commonwealth v. Bracey, 831 A.2d 678, 682-683 (Pa.Super. 2003),
appeal denied, 844 A.2d 551 (Pa. 2004).
Here, this court finds no abuse of discretion by the trial court. Despite
appellant’s references to his “Google” search which, incidentally, is not part
of the record, there is no indication that the jury understood that the name
“Chester” could have the meaning ascribed to it by appellant.
Next, appellant contends that the trial court erred when it did not
permit appellant to introduce “tweets” where the victim talked of smoking
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“kush” and consuming alcohol where the Commonwealth introduced
evidence of the victim’s condition after the incident which was inconsistent
with the statements in the “tweets.” Because the Commonwealth portrayed
the victim as a non-drinking, damaged individual following the incident with
appellant, appellant argues that it should have been permitted to place the
“tweets” into evidence.
Appellant attempted to introduce this evidence during the
cross-examination of the victim’s boyfriend, Joe Arafa, who testified that the
victim did not drink or use marijuana.
The trial court determined:
Defense counsel did not inquire during cross
examination of the Victim if she had been affected by
her encounter with the [appellant] or whether since
the encounter she drinks alcohol or uses drugs.
Later, during direct examination of Mr. Arafa,
testimony was elicited as to how he has seen the
Victim affected by the assault and whether she had
become introverted. Thereafter, defense counsel
argued he should be permitted to submit evidence
that the Victim has not become introverted because
an unauthenticated twitter message states she
drinks alcohol and smokes marijuana.
Developing an inference through Mr. Arafa’s
testimony that the Victim’s encounter with the
[appellant] must have been consensual due to an
unauthenticated twitter message from Victim is not
admissible. There were no facts in evidence that the
Victim ever used drugs or whether she has
consumed alcohol since the assault. Moreover, the
defense did not question the Victim in this regard.
Instead, defense sought to impeach Mr. Arafa about
his personal knowledge of the Victim which was an
issue not material to this matter. Therefore, the
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Trial Court found this to be a collateral issue and not
admissible.
Defense counsel was given wide latitude to
cross-examine Mr. Arafa to test his recollection of
those events. The defense had similar latitude for
cross-examination of the Victim. For the reasons
stated above, the Trial Court did not abuse its
discretion and asserts this claim of error has no
merit.
Trial court opinion, 7/9/15 at 41-42 (footnote omitted).
Appellant argues that the tweets could have cast doubt on the
Commonwealth’s evidence regarding the current state of the victim’s mental
health.
This court agrees with the trial court that the trial court did not abuse
its discretion. Appellant does not explain how the fact that someone drank
alcohol or smoked marijuana would indicate the state of their mental health.
Further, the alleged tweet was posted approximately one year after
appellant’s assault. The question of whether the victim consumed alcohol a
year after the assault is not probative of whether or not she was attacked by
appellant.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
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