Com. v. Romberger, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM THOMA ROMBERGER :
:
Appellant : No. 79 MDA 2021
Appeal from the Judgment of Sentence Entered March 4, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004558-2018
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 17, 2021
Appellant William Thoma Romberger appeals nunc pro tunc from the
judgment of sentence following his convictions for rape of an unconscious
person and indecent assault of an unconscious person.1 On appeal, Appellant
challenges the denial of his motion to allow evidence of the victim’s sexual
conduct pursuant to the Rape Shield Law2 without a hearing. We affirm.
The trial court summarized the facts of this case as follows:
In the morning hours of July 25, 2018, [the victim] awoke to
Appellant touching her and having his penis inside of her.[fn2] The
victim yelled at the Appellant to leave, the Appellant said “sorry”
and left. The victim identified the Appellant in court and testified
that she did not engage in consensual sex.
[fn2] As a way of background, the victim recently moved to
the Elizabethtown, PA area and connected with family. She
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1 18 Pa.C.S. §§ 3121(a)(3), and 3126(a)(4), respectively.
2 18 Pa.C.S. § 3104.
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had a cousin who lived across the street who introduced her
to Appellant (who also was the victim’s cousin). The
Appellant would help the victim watch her children. On the
night in question, the Appellant asked if he could stay at the
victim’s house. The victim left the front door open.
The Commonwealth also introduced the testimony of Pennsylvania
State Trooper Timothy Krauth. Trooper Krauth was the first officer
to arrive on the scene and make contact with the victim. Trooper
Krauth testified that the victim’s eyes were welled up, she had
tears in her eyes, and appeared defeated and scared. Faith Mong,
a SANE (sexual assault nurse examiner) also testified. Ms. Mong
examined the victim on July 25, 2018, and through Ms. Mong, the
Commonwealth introduced a Pennsylvania State Police serology
report and a DNA report. Ms. Mong testified that the Appellant’s
DNA was present inside the victim’s internal genitalia.
Trial Ct. Op., 2/22/21, at 2-3 (some formatting altered and record citations
omitted).
The Commonwealth filed the instant charges against Appellant on
December 3, 2018. Information, 12/3/18, at 1. On December 5, 2019, a jury
found Appellant guilty of both charges, and on March 4, 2020, the trial court
sentenced Appellant to a term of five to ten years of incarceration on the rape
conviction and a concurrent term of one to two years of incarceration for
indecent assault. Appellant did not file a direct appeal.
On October 19, 2020, Appellant filed a pro se “petition to waive all or a
portion of transcript costs” in which he alleged that trial counsel was
ineffective for failing to file a direct appeal. The trial court properly treated
Appellant’s pro se filing as a Post Conviction Relief Act3 (PCRA) petition and
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3 42 Pa.C.S. §§ 9541-9546.
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appointed PCRA counsel.4 On December 14, 2020, PCRA counsel filed a PCRA
petition requesting the reinstatement of Appellant’s direct appeal rights nunc
pro tunc.
On December 15, 2020, the Commonwealth filed a response stating that
it did not oppose the reinstatement of Appellant’s direct appeal rights, and on
December 18, 2020, the trial court reinstated Appellant’s direct appellate
rights nunc pro tunc. Appellant filed a timely notice of appeal on January 14,
2021, and both the trial court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues:
1. Whether the trial court erred in failing to allow evidence of a
third [party’s] DNA within the alleged victim where the alleged
victim indicated she did not have sex with anyone other than
the alleged assault by [Appellant]?
2. Whether the trial court erred in not ordering an in camera
hearing where the motion and offer of proof were sufficient on
their faces to warrant an evidentiary hearing?
Appellant’s Brief at 6.
As Appellant’s issues are interrelated, we address them concurrently.
Appellant contends that the trial court abused its discretion in precluding
certain forensic evidence. Appellant states that the victim gave a statement
to the police in which she said that she did not have sexual intercourse in the
two weeks prior to the assault. Appellant’s Brief at 11 (citing N.T. Trial,
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4 See Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)
(stating that “the PCRA provides the sole means for obtaining collateral
review, and that any petition filed after the judgment of sentence becomes
final will be treated as a PCRA petition”) (citation omitted)).
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12/4/19, at 7-8). Appellant argues that the forensic evidence recovered from
the victims’ genitals revealed DNA from Appellant and the victim, and it also
noted the presence of a third party’s DNA. Id. at 11. Appellant contends that
evidence of a third person indicates either that the DNA test was inaccurate
or that the victim’s statement wherein she said that she had not engaged in
sexual intercourse for two weeks was false and casts doubt on her
truthfulness. Id. at 11-12. Appellant asserts that the DNA may directly
exculpate Appellant, and he claims that the trial court abused its discretion in
failing to hold an in camera hearing regarding the admissibility of the finding
of a third party’s DNA. Id. at 13-14.
The Commonwealth states that the vaginal swab of the victim’s genitals
revealed a mixture of DNA from two individuals: Appellant and the victim.
Commonwealth’s Brief at 6. However, there was also evidence of “minor/less
intense alleles,” or genetic information present. Id. The Commonwealth
argues that the “minor/less intense alleles” were of an insufficient quantity for
any further analysis, and there is no way to know the origin of those alleles,
as they could have been from prior intercourse or could have been present on
Appellant’s genitalia when he penetrated the victim. Id. Moreover, the
Commonwealth notes that evidence of a third person does not make it more
or less likely that Appellant raped the victim, and evidence of prior consensual
sexual intercourse is inadmissible under the Rape Shield Law. Id. at 6-7.
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Our standard of review is as follows:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the trial
court upon a showing that it abused its discretion or committed
an error of law. Thus, our standard of review is very narrow. To
constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation
omitted). This Court has stated that “abuse of discretion is not merely an
error of judgment, but rather where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.” Commonwealth v. Aikens,
990 A.2d 1181, 1184-85 (Pa. Super. 2010) (citation omitted).
This Court has explained:
Relevance is the threshold for admissibility of evidence; evidence
that is not relevant is not admissible. Commonwealth v. Cook,
952 A.2d 594, 612 (Pa. 2008); Pa.R.E. 402. Evidence is relevant
if it logically tends to establish a material fact in the case, tends
to make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.
Our Rules of Evidence provide the test for relevance: evidence is
relevant if “(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Pa.R.E. 401.
Further, “the court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Pa.R.E. 403.
Under Rule 607, “the credibility of a witness may be impeached
by any evidence relevant to that issue.” Pa.R.E. 607(b). The
Comment to Rule 607 further emphasizes that any evidence
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offered to impeach the credibility of a witness must be relevant
under the Rule 401 relevancy test. In addition, Rule 608 provides
that “a witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character
for truthfulness or untruthfulness.” Pa.R.E. 608(a). However,
“the character of a witness for truthfulness may not be attacked
or supported by cross-examination or extrinsic evidence
concerning specific instances of a witness’s conduct.” Pa.R.E.
608(b)(1).
Commonwealth v. Leap, 222 A.3d 386, 390-91 (Pa. Super. 2019) (some
citations omitted and formatting altered), appeal denied, 233 A.3d 677 (Pa.
2020).
Pennsylvania’s Rape Shield Law provides, in relevant part, as follows:
(a) General rule.—Evidence of specific instances of the alleged
victim’s past sexual conduct, past sexual victimization, allegations
of past sexual victimization, 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 of any offense listed in subsection (c) 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.
(b) Evidentiary proceedings.—A defendant who proposes to
offer evidence of the alleged victim’s past sexual conduct, past
sexual victimization, allegations of past sexual victimization,
opinion evidence of the alleged victim’s past sexual conduct and
reputation evidence of the alleged victim’s past sexual conduct
pursuant to subsection (a) shall file a written motion and offer of
proof at the time of trial. If, at the time of trial, the court
determines that the motion and offer of proof are sufficient on
their faces, the court shall order an in camera hearing and shall
make findings on the record as to the relevance and admissibility
of the proposed evidence pursuant to the standards set forth in
subsection (a).
18 Pa.C.S. § 3104(a)-(b).
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The purpose and application of the Rape Shield Law has been
summarized as follows:
[I]t is intended to prevent a trial from shifting its focus from the
culpability of the accused towards the virtue and chastity of the
victim. This protective measure is salient where defendants
attempt to utilize evidence of the complainant’s alleged
promiscuity to bolster their claim of consent. Thus, the shield law
prevents a sexual assault trial from degenerating into an attack
upon the victim’s reputation for chastity. It additionally removes
obstacles to the reporting of sex crimes.
With that said, the shield law may not be applied in a manner that
violates a defendant’s constitutional right to a fair trial, including
his right to present evidence and cross-examine witnesses. In
this regard, the Sixth Amendment and Article I, Section 9 of the
state Charter both protect a defendant’s right to be confronted
with adverse witnesses. See U.S. CONST. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.[”]); PA. CONST. art.
I, § 9 (same). The federal right to be confronted with such
witnesses has been incorporated to the States and includes the
right to conduct reasonable cross-examination. This is true of the
state provision as well.
At the same time, the confrontation right is not absolute. It
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish. Thus, trial courts retain
wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.
. . . Rape Shield laws, if rigidly construed, could impermissibly
encroach upon a defendant’s right to confront and cross-examine
witnesses which is secured under the United States and
Pennsylvania Constitutions. As a consequence, Pennsylvania
courts have sought to balance the defendant’s fundamental right
to a fair trial, including his right to confront his accuser, against
the state’s interests embodied in the statute (as outlined above)
and in the rules of evidence. Thus, courts have found the law
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unconstitutional as applied in circumstances where the defendant
seeks to introduce evidence for reasons unrelated to impugning
the complainant’s character, and the probative value of that
evidence outweighs the danger of unfair prejudice.
Commonwealth v. Rogers, 250 A.3d 1209, 1215-17 (Pa. 2021) (footnotes
and some citations omitted; some formatting altered).
Here, the trial court addressed Appellant’s claims as follows:
[T]here was no evidence presented that the victim had a desire to
engage in sexual conduct with the Appellant, the victim’s cousin.
The Appellant attempts to question the victim on third-party DNA
found inside her genitalia to discredit the victim and “shift the
focus from the culpability of the accused toward the virtue and
chastity of the victim.” The Rape Shield Law was specifically
designed to exclude irrelevant and abusive inquiries regarding
prior sexual conduct. Additionally, despite trial counsel’s
contention that the third-party DNA was a male, the
Commonwealth quickly corrected and indicated that we do not
know whether it was female or male DNA. N.T. Trial, 12/4/19, at
10. Also, the Commonwealth indicated that the amount was such
a minor amount. This evidence also does not exonerate the
Appellant because his DNA was also found inside the victim’s
genitalia. This proposed evidence (third-party DNA) is not
relevant to show the victim’s bias or motive. While [Appellant]
attempts to discredit the victim’s testimony by claiming that the
victim lied about not having any sexual intercourse two weeks
prior to the incident, the minute amount of DNA found[fn4] does
not assist in refuting the argument that the victim did not consent
to the sexual activity at issue.
The Commonwealth also argued that the DNA could
[fn4]
have been on the Appellant’s penis when he penetrated her
and then left behind when he ejaculated. N.T. Trial,
12/4/19, at 10.
With regards to [whether the probative value of the evidence
outweighs its prejudicial effect], the prejudicial impact of the
proposed evidence would far outweigh any probative value as it
serves no purpose other than to shift the fact finder’s focus “from
the culpability of the accused toward the virtue and chastity of the
victim.” Commonwealth v. Burns, 988 A.2d 648, 689 (Pa.
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Super. 2009). Simply put, this evidence does not have probative
value that is exculpatory to the defendant and would merely
inflame the minds of the factfinders. We note that if there was
any “probative value at all to the proffered evidence, it is greatly
outweighed by the prejudice and underlying policy considerations
of the rape shield statute.” Commonwealth v. Largaespada,
184 A.3d 1002 (Pa. Super. 2018).
Finally, with regards to [whether there were alternative means of
proving bias or motive to challenge credibility], trial counsel had
ample opportunity to cross-examine the victim concerning
inconsistencies and contradictions as to her memory about the
morning of the alleged incident. See generally N.T. Trial,
12/4/19, at 119-131. . . .
As such, Appellant has failed to establish how the third-party DNA
was admissible under the Rape Shield Statute. Accordingly, a
hearing was not required as the evidence was insufficient on its
face. Additionally, the evidence was not relevant and thus not
admissible.
Trial Court Op., 2/22/21, at 5-6 (some formatting altered).
Following our review of the record, we agree with the trial court’s
conclusion. Although the forensic evidence revealed a third insignificant
contributor of DNA, there is no evidence that this DNA was seminal fluid or
that it was deposited through sexual contact. Further, there is no indication
that these minor alleles establish another instance of sexual intercourse or in
any way diminish the credibility of the victim or the truthfulness of her
statement to police. As the trial court noted, the minor alleles could not be
determined to be male or female, and there was no indication of the source.
N.T. Trial, 12/4/19, at 10. We agree with the trial court that this evidence
shows merely that in addition to measurable quantities of DNA belonging to
Appellant and the victim, a third party’s DNA was minutely present. See id.-9-
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at 8-10 (noting that the recovered DNA matched Appellant, the victim, and an
unknown third contributor); see DNA Analysis, 2/11/19, at 2 (providing that
in addition to identifying DNA from Appellant and the victim, “additional
minor/less intense allele(s) were also present. No further Interpretation could
be made due to an insufficient quantity of DNA from this minor component”).
For the reasons set forth above, we agree with trial court that the
indication of a third party’s DNA does not provide a basis for concluding that
the victim was not credible. Therefore, the evidence would have been more
prejudicial that probative. See Leap, 222 A.3d at 390-91. As such, Appellant
has not established an exception to the Rape Shield Law, and we conclude
that there was no abuse of discretion in the trial court precluding this evidence
without a hearing.5 See id.; see also 18 Pa.C.S. § 3104. Accordingly, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/17/2021
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5 Because we conclude that the evidence in question, which did not exculpate
Appellant, was related to impugning the victims’ character and that the
probative value of the evidence was clearly outweighed by the danger of unfair
prejudice, the circumstances in which the Rape Shield Law has been held to
be unconstitutional as applied are not present. See Rogers, 250 A.3d at
1217.
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