Commonwealth v. Rogers, E., Aplt.

[J-90-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 8 EAP 2020
:
Appellee : Appeal from the Judgment of Superior
: Court entered on 9/25/19 at No. 342
: EDA 2017 affirming the judgment of
v. : sentence entered on 7/2/15 in the Court
: of Common Pleas, Philadelphia County,
: Criminal Division at Nos. CP-51-CR-
ERIC ROGERS, : 0000721-2013, CP-51-CR-0001717-
: 2013, CP-51-CR-0005681-2012, CP-
Appellant : 51-CR-0007377-2012, and CP-51-CR-
: 0007563-2012
:
:
: ARGUED: October 21, 2020
OPINION
JUSTICE SAYLOR DECIDED: May 18, 2021
The primary issue raised in this discretionary appeal is whether the trial court
properly excluded evidence that two of Appellant’s rape victims had a history of
prostitution convictions, where Appellant’s defense included a contention that the
encounters were consensual instances of prostitution.
I.
Section 3104 of Pennsylvania’s Crimes Code, referred to as the Rape Shield
Law (the “shield law”), is designed to protect alleged rape victims in the context of a
criminal trial. Subject to limited exceptions, it excludes evidence of an alleged victim’s
past sexual history. Its purpose is to prevent the trial from shifting its focus from the
defendant’s guilt or innocence to the victim’s reputation or moral virtue. See
Commonwealth v. Johnson, 536 Pa. 153, 158, 638 A.2d 940, 942 (1994) (citing
Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983)). The law provides:
(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.
18 Pa.C.S. §3104(a). Under subsection (c), the above provision applies, inter alia, in
cases where the defendant is charged under Chapter 31 of the Crimes Code, relating to
sexual offenses. See id. §3104(c).1
In Philadelphia, over the course of approximately ten months beginning in May
2011, Appellant physically and sexually assaulted five women – two of whom were
minors – and stole various items of personal property from them. Appellant was
charged with dozens of crimes, including multiple counts of rape, robbery, and
involuntary deviate sexual intercourse. The charges were consolidated for trial.
In a pretrial motion in limine, Appellant sought permission to introduce evidence
that two of the three adult victims, A.P. and M.H., had a history of convictions for
1 Subsection (a) also applies in the context of prosecutions under the following aspects
of the Crimes Code: Chapter 27 (relating to assault), Chapter 29 (relating to
kidnapping), Chapter 30 (relating to human trafficking), Section 4302 (relating to incest),
Section 4304 (relating to endangering welfare of children, but only if the offense
involved sexual contact with the victim), Section 6301(a)(1)(ii) (relating to corruption of
minors), Section 6312(b) (relating to sexual abuse of children), Section 6318 (relating to
unlawful contact with a minor), and Section 6320 (relating to sexual exploitation of
children). See id. §3104(c).
Subsection (b) relates to the procedures for a defense proffer, an in-camera review
where warranted, and the court’s issuance of findings as of record. See id. §3104(b).
[J-90-2020] - 2
prostitution in the general area where the incidents occurred. He wanted to use such
proofs to support the defense theory, as to those victims, that his encounters with them
were consensual acts of prostitution. In his filing, labeled as a combined motion and
memorandum of law, Appellant acknowledged the shield law, but maintained it did not
exclude the evidence in question. He also claimed that exclusion would violate his
rights under the United States and Pennsylvania Constitutions. The common pleas
court, per Judge Anders, denied the motion in relevant part, noting that none of the
convictions related to encounters with Appellant. See N.T., Feb. 9, 2015, at 5-6.2
The matter proceeded to a consolidated, four-day waiver trial before Judge
Woelpper in February 2015. At trial, the victims testified and described the attacks,
including the threats of violence and actual violence Appellant used to subdue his
victims – including tackling, punching, and choking. Several of the victims indicated
that, after Appellant assaulted them, he stole personal property from them, such as
credit cards, identification cards, cell phones, and cash. With regard to the three adult
victims, the Commonwealth presented evidence that DNA matching Appellant’s was
recovered from the victims’ clothing or bodies shortly after each attack.
Appellant testified in his defense. He admitted to having sexual relations with all
of the victims, but portrayed it as consensual in each instance. He denied that he
physically harmed, or stole property from, any of them. Further, he described the
2 In the same motion, Appellant also requested permission to introduce certain evidence
concerning the third adult victim, C.B. That aspect of the motion is not presently at
issue. As well, no sexual-history evidence concerning the two minor victims is in issue.
Separately, the record indicates that some of the evidence pertained to alleged
instances of prostitution that occurred after the offenses committed by Appellant. See
N.T., Feb. 10, 2015 (Motion), at 6, 10; Commonwealth v. Rogers, Nos. CP-51-CR-5861-
2012, et al., Post-Sentence Motion dated July 13, 2015 (C.P. Phila.) (“Appellant’s Post-
Sentence Motion”), at ¶6(c). This facet of the dispute is discussed below.
[J-90-2020] - 3
encounters with the adult victims as sex-for-money transactions. He claimed to have
propositioned A.P. and that she agreed she wanted to “make some money.” N.T., Feb.
11, 2015, at 103. As for M.H., Appellant testified that she was walking back and forth in
a manner suggestive of solicitation. See id. at 104.
The court, sitting as fact-finder, convicted Appellant of rape, aggravated assault,
robbery, and related offenses as to all three of the adult victims. The court also found
him guilty of rape and other offenses as to one of the minor victims, and corruption of
minors with regard to the other minor victim. See N.T., Feb. 19, 2015, at 3-4. Appellant
was classified as a sexually-violent predator and sentenced to an aggregate prison term
of 55-170 years. See N.T., July 2, 2015, at 50. Appellant’s post-sentence motion was
denied.3
In early 2017, after his direct appeal rights were reinstated nunc pro tunc,
Appellant lodged his appeal and filed a Rule 1925(b) concise statement. See Pa.R.A.P.
1925(b). The common pleas court issued two opinions, one by Judge Woelpper
summarizing the trial evidence and addressing claims relating to evidentiary weight and
sentencing discretion, see Commonwealth v. Rogers, Nos. CP-51-CR-5861-2012, et al.,
slip op. (C.P. Phila. May 1, 2018), and the other by Judge Anders concerning the denial
of Appellant’s pretrial motion in limine. See Commonwealth v. Rogers, Nos. CP-51-CR-
5861-2012, et al., slip op. (C.P. Phila. May 7, 2018).
In the latter opinion, the court relied on the Rape Shield Law as the basis for its
determination that the proffered evidence was properly excluded. The court explained
that, while exculpatory proofs are not barred by the statute, that precept was
inapplicable in the present case:
3 In his post-sentence motion, Appellant raised weight-of-the-evidence claims as to
some of his convictions, and asserted that his sentence was excessive. He also
challenged Judge Anders’ ruling on his motion in limine.
[J-90-2020] - 4
Defendant sought to introduce evidence that [two] of the rape victims had
prior convictions for prostitution. All of these convictions were for sexual
conduct with persons other than Defendant. As in [Commonwealth v.
Jones, 826 A.2d 900 (Pa. Super. 2003) (en banc)], these convictions did
not exculpate Defendant and were inadmissible to prove that any of the
victims consented to sexual intercourse with Defendant. For similar
reasons, the convictions were also inadmissible to test the credibility of the
[two] rape victims because the convictions were irrelevant to the defense
of consent and were more prejudicial than probative.
Id. at 3-4.
On appeal, Appellant renewed, inter alia, his challenge to the exclusion of the
prostitution evidence, as well as his contention that the verdicts were against the weight
of the evidence.
A three-judge panel of the Superior Court affirmed the judgment of sentence in a
non-precedential opinion. See Commonwealth v. Rogers, No. 342 EDA 2017, 2019 WL
4686960, at *8 (Pa. Super. Sept. 25, 2019). As to the issue involving the shield law, the
panel noted that Appellant urged it to reexamine its precedent in Jones and
Commonwealth v. Dear, 342 Pa. Super. 191, 492 A.2d 714 (1985), both of which had
held that a complainant’s history of prostitution convictions involving third persons, when
offered to prove consent with regard to the defendant, is inadmissible under the Rape
Shield Law. See id. at 202, 492 A.2d at 720; Jones, 826 A.2d at 909 (indicating that
such evidence “is not probative of the complainant’s willingness to commit sexual acts
with [the defendant], for hire or for any other reason”).4 The panel stated that it lacked
4 The Superior Court referred to all three adult victims when discussing this claim. See
Rogers, 2019 WL 4686960, at *4. As noted, however, Appellant only sought to
introduce prostitution-history evidence with respect to A.P. and M.H., not C.B. In his
brief, Appellant occasionally makes reference to C.B.’s non-prostitution sexual history.
See, e.g., Brief for Appellant at 21 (referring to evidence of C.B.’s “relatively
contemporaneous sexual encounter with another unknown man”). However, there is no
issue before this Court with regard to evidence concerning C.B. See generally Brief for
Commonwealth at 20 n.4.
[J-90-2020] - 5
the power to overrule a prior decision of the Superior Court except where there is
intervening authority by this Court calling that decision into question – and that
Appellant did not assert any such intervening authority existed. See id. at *4 (quoting
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006)).
The panel also dismissed Appellant’s evidentiary-weight claim as waived on the
basis that he had failed, in his Rule 1925(b) statement, to specify which verdicts were
contrary to the weight of the evidence, or what proofs at trial so contradicted the
complainants’ testimony that the verdicts shocked one’s sense of justice. See id. at *5
(quoting Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa. Super. 2015)
(indicating a concise statement “which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement”)). See
generally Commonwealth v. Brown, 538 Pa. 410, 438-39, 648, A.2d 1177, 1189 (1994)
(noting a new trial may only be granted on a weight-of-the-evidence claim where the
“verdict is so contrary to the evidence as to shock one’s sense of justice, and the award
of a new trial is imperative so that right may be given another opportunity to prevail”
(internal quotation marks and citation omitted)).
This Court allowed further review to determine whether the exclusion of evidence
concerning A.P.’s and M.H.’s prostitution convictions denied Appellant his right to cross-
examine witnesses and present a defense where Appellant claimed at trial that the
encounters were “prostitution transactions.” Commonwealth v. Rogers, ___ Pa. ___,
___, 224 A.3d 1263, 1264 (2020) (per curiam). We also granted review as to the
question of whether the Superior Court erred in holding that Appellant’s evidentiary-
weight claim was waived. See id.[J-90-2020] - 6
II.
The admissibility of proffered evidence generally depends on its relevance and
probative value. See Commonwealth v. Drumheller, 570 Pa. 117, 135, 808 A.2d 893,
904 (2002). Even where evidence is probative, it may be excludable for policy reasons.
For example, evidence may be barred under the Pennsylvania Rules of Evidence where
there is a danger of “unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. As
illustrated by the present case, it may also be excluded based on policy as embodied in
a legislative enactment.
Rulings on admissibility are committed to the common pleas court’s discretion
and will only be reversed on appeal where there is an abuse of discretion. See
Commonwealth v. Maconeghy, 642 Pa. 770, 778, 171 A.3d 707, 712 (2017). An abuse
of discretion occurs when the law is overridden or misapplied, or the judgment
exercised was either manifestly unreasonable or the product of partiality, prejudice,
bias, or ill will. See Commonwealth v. Spiewak, 533 Pa. 1, 7 n.4, 617 A.2d 696, 699 n.4
(1992). Here, the contention is that the Rape Shield statute should not have been
applied under the circumstances. This raises an issue of law as to which our review is
de novo and plenary. See Commonwealth v. Renchenski, 616 Pa. 608, 614-15, 52
A.3d 251, 255 (2012).
Initially, it is not entirely clear from Appellant’s pretrial motion whether he sought
permission to introduce documentary evidence concerning the victims’ alleged
prostitution convictions, or merely permission to cross-examine them about those
matters. See Commonwealth v. Rogers, Nos. CP-51-CR-5861-2012, et al., Defendant’s
Motion & Memorandum of Law in Support Thereof to Admit Evidence Pursuant to the
Pennsylvania Rape Shield Statute dated Oct. 21, 2015, at ¶6 (C.P. Phila.) (stating in
[J-90-2020] - 7
general terms that “the defense seeks admission of evidence of the complainants’
sexual conduct to corroborate [the defense’s] contention that in the case[s] of [A.P.] and
[M.H.] the sexual contact[s] were consensual acts of prostitution”).5 The motions court
understood the request as directed to cross-examination of the complainants during the
prosecution’s case in chief, and Appellant did not suggest it was more expansive in
response to the court’s invitation to make any corrections on the record. See N.T., Feb.
9, 2015 (Motion), at 5-6. Further, there is nothing in the parties’ present advocacy
suggesting, based on any identified aspect of the record, that the request should be
viewed as having extended beyond cross-examination. Accordingly, we will proceed
from the premise that Appellant challenges the motions court’s denial of his request as
framed in terms of cross-examination of A.P. and M.H., as well as the Superior Court’s
affirmance of the denial.6
The purpose of the Rape Shield Law has been explained in prior decisions and
need not be repeated at length. To summarize, it is intended to “prevent a trial from
shifting its focus from the culpability of the accused towards the virtue and chastity of
the victim.” Commonwealth v. Allburn, 721 A.2d 363, 366-67 (Pa. Super. 1998)
(internal quotation marks and citations omitted). This protective measure is salient
where defendants attempt to utilize evidence of the complainant’s alleged promiscuity to
bolster their claim of consent. See, e.g., Commonwealth v. Widmer, 446 Pa. Super.
5The motion, which is undated, was not docketed until October 2015. However, it is
apparent that Judge Anders reviewed it before the pretrial hearing on February 9, 2015.
6 The parties briefly discussed the possibility that the evidence could also be used to
rehabilitate Appellant as a witness should he be cross-examined about his prostitution
defense. See N.T., Feb. 10, 2015 (Motion), at 6-8. In light of our analysis below, the
resolution of this appeal would not be different regardless of whether Appellant sought
to use the victims’ alleged prostitution history in connection with rehabilitation and/or
sought to introduce documentary proofs.
[J-90-2020] - 8
408, 422, 667 A.2d 215, 222 (1995), rev’d on other grounds, 547 Pa. 137, 689 A.2d 211(1997). Thus, the shield law “prevent[s] a sexual assault trial from degenerating into an
attack upon the victim’s reputation for chastity.” Commonwealth v. Berkowitz, 537 Pa.
143, 151, 641 A.2d 1161, 1165 (1994) (citing cases).7 It additionally removes obstacles
to the reporting of sex crimes. Accord Williams v. State, 681 N.E.2d 195, 200 (Ind.
1997).
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. See Spiewak, 533 Pa. at 11, 617 A.2d at 701(“Notwithstanding these worthy legislative aims, rules excluding evidence cannot be
mechanistically applied to abridge a defendant’s right of confrontation by denying
admission of highly reliable and relevant evidence critical to his defense.”). 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. See Olden v. Kentucky, 488 U.S. 227,
231, 109 S. Ct. 480, 483 (1988) (per curiam); Davis v. Alaska, 415 U.S. 308, 315-16, 94
S. Ct. 1105, 1110 (1974); Commonwealth v. Williams, 624 Pa. 183, 189, 84 A.3d 680,
7 See also Priest v. Rotary, 98 F.R.D. 755, 761 (N.D. Cal. 1983) (recognizing that at one
time rape victims “ran the risk of finding their own moral characters on trial during the
prosecution of their assailants”). See generally 75 C.J.S. Rape §96 (2020) (indicating
that rape shield laws reflect the view that evidence of a complainant’s prior sexual
conduct is irrelevant or, if relevant, substantially outweighed by its prejudicial effect);
Rachel M. Kane, 5 SUMM. PA. JUR. 2D Criminal Law §15:22 (2d ed. & 2020 update)
(relating to the general purpose of the rape shield statute).
[J-90-2020] - 9
684 (2014). This is true of the state provision as well. See Commonwealth v. Gribble,
550 Pa. 62, 83-84, 703 A.2d 426, 437 (1997), abrogated on other grounds,
Commonwealth v. Burke, 566 Pa. 402, 413, 781 A.2d 1136, 1142 (2001).8
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.” United States v.
Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842 (1988) (internal quotation marks and
emphasis omitted). 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.”
Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986).
In terms of the present controversy, our intermediate court has noted that “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.” Commonwealth v. Nieves, 399 Pa. Super. 277, 287, 582
A.2d 341, 346 (1990). 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. Accord Commonwealth v. Quartman, 312 Pa. Super. 349, 353,
458 A.2d 994, 996 (1983). Thus, courts have found the law unconstitutional as applied
in circumstances where the defendant seeks to introduce evidence for reasons
8 As there is no developed advocacy in the parties’ briefs suggesting the state
guarantee is more expansive than its federal counterpart with regard to the asserted
right in this case, for present purposes they will be considered coterminous.
[J-90-2020] - 10
unrelated to impugning the complainant’s character, and the probative value of that
evidence outweighs the danger of unfair prejudice.
In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), this Court held
that evidence of the complainant’s act of consensual intercourse, which was said to
have occurred two hours before the time she claimed she was raped, could not be
barred by the shield law. The defense evidence was designed to provide an alternate
explanation for the presence of live sperm cells in the complainant’s vagina as
determined by medical testing shortly after the alleged incident. This Court noted that
“[a]dmitting such evidence for the limited purpose of denying the act charged properly
balances the laudable goals of the statute and an accused’s fundamental right to
present in defense his own version of the facts under both the Sixth Amendment to the
Federal Constitution and Article I, Section 9 of our Pennsylvania Constitution.” Id. at
605, 470 A.2d at 81.
In Spiewak, the defendant was accused of committing a sexual offense with his
step-daughter when she was fifteen years old, and the complainant’s credibility was a
critical issue in the case. Spiewak admitted the encounter occurred but claimed the
victim was over sixteen at the time. The prosecution adduced evidence that she had
had a sexual encounter with an unnamed older man approximately one month before
her sixteenth birthday. In response, the defendant suggested an inference that that
older man was not him but a friend of his. To support the inference, he sought to cross-
examine the complainant concerning her testimony at an earlier proceeding in which
she stated that she had engaged in sexual conduct with Spiewak’s friend in an incident
similar to the one at issue. The trial court disallowed the cross-examination under the
shield law, and this Court reversed. Noting Majorana had established that the shield
law cannot be utilized to prohibit relevant, potentially-exculpatory evidence, the Spiewak
[J-90-2020] - 11
Court held that the trial court’s ruling abridged the defendant’s right to present his own
version of the facts in his defense. See Spiewak, 533 Pa. at 8-9, 617 A.2d at 699-700.9
See generally Commonwealth v. McGowan, 535 Pa. 292, 295, 635 A.2d 113, 115
(1993) (explaining that proofs tending to show someone else committed the charged
offense are relevant and admissible).
Sexual-history evidence has also been permitted when proffered to reveal the
complainant’s bias or hostility toward the defendant, or that the complainant otherwise
had a motive to fabricate or color the accusation. See, e.g., Commonwealth v.
Ruggiano, 14 A.3d 844, 847 (Pa. Super. 2010) (holding that the Rape Shield Law did
not preclude sexual-history evidence offered to show that the witness sought to falsely
accuse the defendant as a way of deflecting blame for the witness’s own conduct),
vacated on other grounds, 611 Pa. 368, 26 A.3d 473 (2011) (per curiam).10
In Commonwealth v. Black, 337 Pa. Super. 548, 487 A.2d 396 (1985), for
example, the defendant was accused of having sexually victimized his 13-year-old
daughter. Black testified that the alleged incident never occurred. He also sought to
show his daughter had a motive to fabricate the story. In particular, he sought to cross-
examine her concerning her alleged ongoing consensual sexual relationship with her
15-year-old brother, which ended when the brother left the family home. This line of
inquiry supported the defense theory because: the daughter made her first complaint
9 The Spiewak Court did not expressly state that application of the statute to bar the
proffered evidence was unconstitutional. The implication is clear from context, however,
because Spiewak relied on Majorana – which reached its holding based on the Sixth
Amendment and Article I, Section 9 – and there is no evident non-constitutional basis
for the Spiewak Court not to have applied the shield law.
10In its per curiam order, this Court acknowledged that an exception to the Rape Shield
Law exists in relation to evidence showing the bias or motive of the witness in question.
See id. at 368, 26 A.3d at 473.
[J-90-2020] - 12
against Black shortly after the brother left home due to violent arguments the brother
was having with Black; the complainant admitted she wanted her brother to return
home; and the brother inquired concerning moving back home once Black was arrested
and removed. As the extent of the complainant’s potential bias against Black – and
thus her motive to fabricate – could only be explored through such cross-examination,
the intermediate court held that the cross-examination was permissible notwithstanding
the shield law in view of the defendant’s Sixth-Amendment right to confront adverse
witnesses. See id. at 558, 548 A.2d at 401-02 (observing, as well, that the cross-
examination was not offered to show general moral turpitude or defect of character);
see also Commonwealth v. Eck, 413 Pa. Super. 538, 550-51, 605 A.2d 1248, 1255
(1992) (where the jury had to weigh the credibility of the victim and the defendant,
finding error in the trial court’s exclusion of evidence of the victim’s sexual history which
could have revealed a motive to invent the charges (quoting Commonwealth v. Erie,
361 Pa. Super. 44, 52-53, 521 A.2d 464, 468 (1987))); Commonwealth v. Fernsler, 715
A.2d 435, 442 (Pa. Super. 1998) (permitting sexual-history evidence which could
demonstrate the accused had a motive to fabricate the allegations to gain favorable
treatment while in a juvenile sex-offender program).11
On the threshold question of whether the prostitution evidence promoted by
Appellant is statutorily precluded, we note initially that some of the evidence pertained
to alleged instances of prostitution in the post-offense timeframe. See supra note 2. An
issue thus arises whether the evidence concerns “past sexual conduct” for purposes of
the shield law. The statute is ambiguous on this point because, as a textual matter,
“past” could reasonably mean either prior to trial or prior to the offense. See Trizechahn
11 The Black and Eck opinions were cited with approval in this Court’s per curiam order
in Ruggiano. See supra note 10.
[J-90-2020] - 13
Gateway LLC v. Titus, 601 Pa. 637, 653, 976 A.2d 474, 483 (2009) (explaining that an
ambiguity exists when there are at least two reasonable interpretations of the text). We
will therefore ascertain the meaning that best aligns with legislative intent. See 1
Pa.C.S. §1921(a) (indicating that the object of all interpretation and construction of
statutes is to ascertain and effectuate legislative intent); Commonwealth v. Cullen-
Doyle, 640 Pa. 783, 787, 164 A.3d 1239, 1242 (2017) (same).12
It makes little difference in terms of the shield law’s purposes whether the
evidence in question relates to conduct which occurred before or after the alleged
offense. The shield law reflects the General Assembly’s judgment that, in relation to the
issue of consent with the defendant, a complainant’s sexual history with third parties
should not be aired. This objective would be ill served if the victim’s excludable sexual
history were limited to that which occurred prior to the alleged offense. This is true
because evidence of post-offense sexual conduct could lead to the same types of
distractions as proofs concerning pre-incident conduct – most notably, the improper
shifting of the trial’s focus away from the defendant’s guilt or innocence and toward the
complainant’s character. See generally Del. Cty. v. First Union Corp., 605 Pa. 547, 561,
992 A.2d 112, 121 (2010) (noting that the practical results of a particular interpretation
may be considered when construing statutory text (quoting Lehigh Valley Coop.
Farmers v. Bureau of Emp’t Sec., 498 Pa. 521, 526, 447 A.2d 948, 950 (1982))).
Additionally, although the statute appears in the Crimes Code, it is remedial rather than
penal. Consequently, the textual reference to the alleged victim’s “past” conduct should
be read broadly. See 1 Pa.C.S. §1928(c) (directing that, subject to certain enumerated
12 Appellant does not advance that the General Assembly intended for acts of illegal
prostitution to be excluded from the statute’s protective scope, see Brief for Appellant at
32 n.4 (indicating that Appellant “takes no position” on that question), and there is no
reason based in its text to reach that conclusion.
[J-90-2020] - 14
exceptions not implicated here, statutory provisions should be “liberally construed to
effect their objects and to promote justice”). Understood broadly, “past sexual conduct”
signifies sexual conduct which occurred at any time in the past, meaning, prior to trial
rather than solely prior to the alleged sexual assault.
Under our broad construction, there is little doubt that the proofs offered by
Appellant were statutorily precluded. Assuming the complainants engaged in
prostitution with third parties at any time before trial, those encounters qualify as their
“past sexual conduct,” and there is no suggestion that Appellant himself was involved in
any of the prior acts of prostitution.
Given this state of affairs, Appellant seeks admission of the evidence on
constitutional grounds by analogizing the present case to those in which courts have
determined that otherwise-barred proofs may be admitted as bearing on the question of
the complainant’s credibility. He argues that here, the defense theory – consistent with
what Appellant told the police – was that A.P. and M.H. gave their financially-induced
consent to the encounter, and that he should have been allowed to put evidence before
the fact-finder that they had engaged in prostitution with others. Summarizing a litany of
extra-jurisdictional cases which have announced a variety of rules and applied them
with varying results, see Brief for Appellant at 27-48, Appellant contends we should
follow the lead of states that have adopted a liberal approach to admissibility in order to
avoid injury to his constitutional rights. See id. at 48-49.
Appellant additionally maintains that the evidence’s probative value outweighed
its prejudicial effect in the circumstances. He emphasizes that the balancing test in
reality deals, not with prejudice as such – as most relevant trial evidence is, by design,
prejudicial to the opposition – but with the risk of unfair prejudice. See Pa.R.E. 403
(permitting the exclusion of relevant evidence if its probative value is outweighed by a
[J-90-2020] - 15
danger of, among other things, unfair prejudice). Appellant indicates that, to embody
that risk, the evidence must “inflame the mind” of the fact-finder. Brief for Appellant at
50 (quoting Eck, 413 Pa. Super. at 549, 605 A.2d at 1254 (stating that otherwise-
admissible evidence may be excluded if “it would so inflame the minds of the jurors that
its probative value is outweighed by unfair prejudice”)). He argues that that standard
was not met here as the complainants’ alleged involvement in the sex-for-hire trade was
“just business” and unrelated to an accusation of promiscuity. Id. at 52.
Appellant indicates that the reported Pennsylvania decision which is most
relevant to the present matter is the intermediate court’s ruling in Dear, and he urges
this Court to disapprove or limit that decision. See id. at 54. We will therefore briefly
review that decision.13
In Dear, the defendant was charged with rape. He testified that he was solicited
by the victim and knew her to be a prostitute. He sought to introduce proofs that the
victim had three prior convictions for solicitation of prostitution in the same area where
the alleged rape occurred. The common pleas court excluded the evidence under the
shield law, and Dear was found guilty. On appeal, the Superior Court observed that the
legislative objective of protecting a complainant from undue harassment must be
balanced against the defendant’s fundamental right to a fair trial. In such balancing, the
court indicated, a victim’s sexual conduct with third parties is generally of only slight
relevance to the issue of consent with the defendant. Thus, the court continued, absent
extraordinary circumstances it should be excluded per the statute. See Dear, 342 Pa.
13 Appellant also asks this Court to disapprove or limit the Superior Court’s decision in
Jones. See id. That dispute primarily dealt with the statutory-construction issue which
we have resolved above – i.e., whether “past” means prior to trial or only prior to the
alleged offense. See Jones, 826 A.2d at 903. Consistent with our determination, the
court held that “past sexual conduct” subsumes all such conduct prior to trial. See id. at
908.
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Super. at 198, 492 A.2d at 718 (quoting Commonwealth v. Boone, 319 Pa. Super. 358,
360-62, 466 A.2d 198, 199-200 (1983)). As no such circumstances existed, the court
affirmed the exclusion of the evidence. See id. at 199, 492 A.2d at 718. The court also
distinguished Black, expressing that that case concerned proofs tending to demonstrate
the complainant’s bias and hostility toward the defendant, rather than consent. See id.
at 201-02, 492 A.2d at 719-20.
The question becomes, then, whether the shield law’s prohibition must yield,
under the Sixth Amendment and Article I, Section 9, to Appellant’s ability to question
A.P. and M.H. concerning their acts of prostitution with third parties. As reflected in the
cases reviewed above, the circumstances in which Pennsylvania courts have admitted
evidence notwithstanding the shield law involve proofs offered to demonstrate factual
premises other than consent – such as that the conduct was committed by someone
other than the defendant, the complainant harbored bias and hostility toward the
defendant which would induce him or her to fabricate or color testimony, or that the
complainant otherwise had an ulterior motive to manufacture charges.
In some limited situations, prostitution evidence may be germane to these other
issues. In Commonwealth v. Joyce, 415 N.E.2d 181 (Mass. 1981), for instance, the
police approached a car in which the defendant and the complainant were both
undressed, and the latter accused the former of raping her. The defense theory was
that the complainant’s previous prostitution arrests – which involved factual
circumstances similar to the incident in question – had occurred shortly before the
incident, and the complainant was motivated to claim (falsely) that she was raped in
order to avoid yet another prostitution arrest. See id. at 187.
This matter is not at all like Joyce. Here, both A.P. and M.H. initiated contact
with the police, and the trial evidence indicated they had been physically beaten shortly
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before reporting the crimes. See N.T., Feb. 9, 2015 (Trial), at 68-70 (M.H.); N.T., Feb.
10, 2015 (Trial), at 133-36 (A.P.).14 Thus, Appellant’s objective in promoting the
evidence is limited to suggesting that, because the victims had been engaged in
prostitution in the same geographic area on other occasions, the fact-finder should give
more weight to his testimony that his own encounters with them entailed prostitution.
The prostitution evidence, therefore, amounted to propensity evidence – that is,
evidence of the complainants’ prior bad acts promoted in an effort to show that, on the
occasion in question, they acted in accordance with their character. While propensity
evidence may have some limited probative value, it is inadmissible to demonstrate a
person’s character in order to show conduct conforming therewith. See Pa.R.E. 404(b);
Commonwealth v. Busanet, 618 Pa. 1, 43, 54 A.3d 35, 61 (2012) (citing Commonwealth
v. Sherwood, 603 Pa. 92, 114, 982 A.2d 483, 497 (2009)).
Appellant denies that he sought introduction of the evidence solely to establish
that the complainants acted in conformity with their conduct on other occasions. He
couches his reason for promoting the prostitution evidence as supporting his “defense
of financially-induced consent.” Brief for Appellant at 17. The argument fails, however,
as it is internally inconsistent: the evidence was relevant only insofar as the
complainants gave their “financially-induced consent” to third parties on other
occasions. Indeed, “absent [Appellant’s] disavowed propensity theory, he is left with no
theory of relevance at all.” Amicus Brief of the Office of Attorney General, at 4.
In light of the above, we conclude, consistent with Dear, that the proofs offered
by Appellant are the very types of items that the Rape Shield Law is designed to
preclude. They would cast aspersions upon the moral character of the complainants
14The evidence of the complainants’ injuries is in obvious tension with the premise that
the encounters were consensual.
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and do little to prove consent at the relevant time – even if the victims had engaged in
prostitution on other occasions. Accord State v. Higgins, 821 A.2d 964, 972 (N.H. 2003)
(indicating that a person’s “status as a prostitute” does not imply that “she will accept
every opportunity that comes along to engage in sexual relations or relent to the desires
of any paying customer, regardless of her motivation for engaging in prostitution in the
first instance”). See generally State v. Green, 260 S.E.2d 257, 261 (W. Va. 1979)
(observing that a victim’s “previous sexual conduct with other persons has very little
probative value about her consent to intercourse with a particular person at a particular
time”). Further, the evidence was not offered to prove that another person committed
the crimes or that the complainants harbored hostility toward Appellant or otherwise had
a motive to fabricate or exaggerate the charges.
Finally, Appellant was not prohibited from establishing a consent defense. He
testified concerning the events and, as noted, portrayed them all as consensual. On
this record there is no reason to believe that the fact-finder was impeded in reconciling
the conflict between Appellant’s testimony and the other trial evidence based on
judgments concerning the credibility or veracity of that evidence. In brief, the shield law
barred the evidence and the statutory prohibition was not overridden in this case by
Appellant’s constitutional rights.
III.
The last issue is whether the Superior Court erred when it found that Appellant’s
weight-of-the-evidence claim was waived for lack of development in his Rule 1925(b)
concise statement. See Pa.R.A.P. 1925(b). As discussed, Appellant included such
contention in his post-sentence motion. See supra note 3. In that motion, he stated:
7. [Appellant] contends that the testimony of [A.P.] was so contradictory
and inconsistent that the verdict was against the weight of the evidence.
[A.P.] gave two different accounts of how she arrived at the location where
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she claimed to be assaulted, two different locations where the assault
occurred, two different explanations for how she sustained her injuries,
and inconsistent testimony of how or when her property was lost or taken.
8. [Appellant] likewise contends that the testimony of [M.H.] was against
the weight of the evidence. The testimony of [M.H.] was incredible based
on inconsistencies, her drug usage, and that [sic] it generally made no
sense. [Appellant] contends that the circumstances of how and when
[M.H.] reported the incident further call her credibility into question. . . .
9. [Appellant] contends that the evidence presented as to [C.B.] was . . .
against the weight of the evidence. [Appellant] concede[d] that he had
consensual sexual relations with [C.B.], which he claimed was as a result
of an agreement to commit prostitution, but denied beating her. During
her testimony, [C.B.] maintained that she did not know her assailant and
that their conversation was limited prior to the assault. It is undisputed
that [C.B.] was “a little tipsy” celebrating her birthday, and lived a few
blocks away from the area of the physical assault. [Appellant] spoke to
the police and testified that he told them her name, that it was her
birthday, that she had been drinking, and that the sexual interaction
happened not in an alley, but on a porch, in a location that [Appellant]
contends was very close to [C.B.’s] home. [Appellant] also gave the
amount of money paid to [C.B.] as $40.00, taken from the MAC machine
as described by [C.B.]; this was coincidentally the amount of money [C.B.]
claimed was taken. When questioned by police, [Appellant] gave a
statement containing all of the information about [C.B.], which he testified
to at trial. [Appellant] contends that the only way he could possibly have
had all of that information was that he had indeed had some protracted
conversation with her on the date in question.
10. [Appellant] contends that the agreed upon evidence, that DNA
comparisons showed the presence of DNA in a sperm fragment from an
unidentified male, lends credibility to the proposition that although
[Appellant] engaged in sexual intercourse with [C.B.], so did another
unidentified male. [Appellant] contends that it was the other male who
also beat [C.B.] again consistent with [Appellant’s] statement to the police
and testimony at trial. The question of whether [C.B.] was sexually active
at the time prior to the assault was initially answered differently from the
trial, when the prosecution attempted to discount the unknown sperm
fraction. . . .
Appellant’s Post-Sentence Motion at ¶¶7-10.
In his Rule 1925(b) statement, he did not repeat the above details, opting instead
to articulate the issue in a substantially-shortened form:
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The verdicts were so contrary to the weight of the evidence as to shock
one’s sense of justice, where [A.P.’s], [M.H.]’s and [C.B.]’s testimony was
vague, inconsistent and incredible. New trials should have been granted
in the interests of justice so that right may prevail, as the fact finder’s
verdict based upon such testimony was speculative and conjectural.
Commonwealth v. Rogers, Nos. CP-51-CR-5861-2012, et al., Final Statement of Errors
Complained of on Appeal (C.P. Phila. Apr. 10, 2018), at ¶2. The Superior Court faulted
Appellant for failing to specify which verdicts were against the weight of the evidence, or
to offer specific reasons why those verdicts were contrary to the weight of the evidence.
See Rogers, 2019 WL 4686960, at *5.15
Appellant complains that the Superior Court’s waiver ruling was based solely on
the face of his Rule 1925(b) statement. As his post-sentence motion was included in
the record, he argues, it should have been considered in tandem with his concise
statement so as to avoid waiver, particularly as the trial court had authored an opinion
addressing the claim on its merits. In this respect, Appellant notes the purpose of Rule
1925(b) is to facilitate appellate review when the common pleas court intends to issue
an opinion addressing the substance of any issue raised in the appeal. He quotes from
Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982), which stated:
The statement provided for [in Rule 1925(b)] is intended to aid the trial
court in the preparation of an opinion where the basis of an appeal is
unclear after post-verdict motions have been disposed of. The waiver
provision of the Rule is properly invoked only where failure to file a
statement or omission from a statement of issues raised on appeal
defeats effective appellate review. Mere omission from the statement of
matter complained of on appeal of an issue preserved by post-verdict
motion, argued before and disposed of by the trial court, and briefed on
appeal, does not, in itself, defeat effective review of that issue.
Id. at 238, 452 A.2d 1333.
15 Appellant was convicted of more than three dozen different offenses in relation to the
three victims mentioned in his concise statement. See Rogers, Nos. CP-51-CR-5861-
2012, et al., slip op. at 1 n.1 (Woelpper, J.).
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For its part, the Commonwealth argues – and references several reported
Superior Court decisions in support – that under the intermediate court’s precedent,
vague and undeveloped evidentiary-weight claims are considered waived. It adds that
even if Appellant prevails on this issue, he will only be entitled to a remand to the
intermediate court to address the merits of his claim.
The Commonwealth’s substantive argument is not entirely responsive, as it does
not contend – nor does our own review suggest – that in any of the cases it cites the
trial court issued an opinion resolving the merits of the claim the Superior Court deemed
waived.16 Moreover, the Commonwealth does not reference any decision of this Court
addressing waiver in circumstances similar to those of the present case.
At the same time, Appellant overstates his position; he fails to recognize that,
after Silver was decided, this Court set forth a rule contradicting any suggestion that
failure to include an issue in a Rule 1925(b) statement does not always result in waiver.
In fact, sixteen years after Silver, the Court held that, going forward, if a trial court
orders a party to file a concise statement, any issue not raised in the statement is
waived, see Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998), and
the precept was eventually incorporated into the rule itself. See Pa.R.A.P.
1925(b)(4)(vii). That development is potentially relevant because a claim or argument
that is substantially underdeveloped can amount to “the functional equivalent of no
argument at all,” and on that basis be deemed waived. Commonwealth v. D’Amato, 579
Pa. 490, 504, 856 A.2d 806, 814 (2004); accord Commonwealth v. Dowling, 778 A.2d
683, 686-87 (Pa. Super. 2001) (suggesting that an overly-vague concise statement is
the equivalent of no statement at all).
16 In one of the cases, the Superior Court explained that the trial court summarily
dismissed the claim without discussing the evidence. See Commonwealth v. Seibert,
799 A.2d 54, 62 (Pa. Super. 2002), cited in Brief for Appellee at 52.
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In all events, it bears noting that the purpose of Rule 1925 is to facilitate
appellate review and to provide the parties and the public with the legal basis for a
judicial decision. See Commonwealth v. Parrish, ___ Pa. ___, ___, 224 A.3d 682, 692
(2020) (quoting Commonwealth v. DeJesus, 581 Pa. 632, 638, 868 A.2d 379, 382
(2005)). If that basis is evident from the record, the trial court need not issue an opinion
explaining it. See Pa.R.A.P. 1925(a) (requiring an opinion only where “the reasons for
the order [appealed from] do not already appear of record”). The function of the concise
statement is to clarify for the judge who issued the order the grounds on which the
aggrieved party seeks appellate review – so as to facilitate the writing of the opinion.
See Pa.R.A.P. 1925(b) (“If the judge entering the order giving rise to the notice of
appeal . . . desires clarification of the errors complained of on appeal, the judge may
enter an order directing the appellant to file of record . . . a concise statement of the
errors complained of on appeal[.]”).
In Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 1058 (2007) (per curiam),
this Court faced a situation comparable to the present controversy. The defendant’s
Rule 1925(b) statement was exceedingly brief in setting forth an evidentiary-sufficiency
claim. Nevertheless, the common pleas court issued a Rule 1925(a) opinion resolving
the claim on its merits. The Superior Court found the claim waived due to its brevity and
did not address its merits. This Court held that the Superior Court should have afforded
the requested sufficiency review, as the trial transcript was short, it was fairly evident
from context that the sole legal issue was whether the defendant was vicariously liable
for his co-defendant’s actions, and “the common pleas court readily apprehended
Appellant’s claim and addressed it in substantial detail.” Id. at 415, 936 A.2d at 1060.17
17This Court has referenced Laboy in summarily granting allocatur, vacating the
Superior Court’s decision, and remanding for a merits disposition of certain issues.
See, e.g., Commonwealth v. Malave, 98 Pa. 494, 957 A.2d 1175 (2008) (per curiam).
[J-90-2020] - 23
Here, the trial transcript is admittedly much longer than in Laboy. Nevertheless,
the weight-of-the-evidence claim was readily understandable from context. Appellant’s
theory, for which he provided his own supporting testimony, was that he was innocent of
all charges in relation to the three adult victims because he did not physically attack or
steal from any of them, and his intercourse with all of them was consensual. Further,
and as noted, in his post-sentence motion Appellant articulated the evidentiary-weight
claim at some length as to the three adult victims, and those were the same individuals
he mentioned in his Rule 1925(b) statement. The common pleas court summarized the
victims’ credited testimony contradicting Appellant’s theory and determined that the
verdicts were not contrary to the weight of the evidence. Thus, as in Laboy, the trial
court had no difficulty apprehending the claim as set forth in the concise statement and
addressing its substance.
This latter circumstance is particularly salient because, as explained, the concise
statement’s purpose is to assist the trial judge in apprehending the issues and authoring
an opinion accordingly for the benefit of the parties, the appellate court, and the public.
If a concise statement’s explanation of a particular issue is overly long, moreover, the
appellant runs the risk of invoking the waiver rule on that basis. See Pa.R.A.P
1925(b)(4)(iv) (prohibiting “lengthy explanations as to any error”); 1925(b)(4)(vii)
(providing, among other things, that failure to raise issues in accordance with paragraph
(b)(4) results in waiver); 1925(b)(4)(ii) (mandating issues be stated concisely); cf. Eiser
v. Brown & Williamson Tobacco Corp., 595 Pa. 366, 384 n.19, 938 A.2d 417, 428 n.19
(2007) (plurality) (observing that Rule 1925 as revised “now explains that frivolous or
redundant issues continue to provide grounds for waiver, and clarifies that a lengthy
explanation of the claimed error(s) should not be provided in the statement”).
[J-90-2020] - 24
In light of these principles, we find that the brevity of Appellant’s weight-of-the-
evidence claim as set forth in his concise statement represents a good-faith attempt to
comply with Rule 1925’s concision requirement, and that it did not prevent meaningful
appellate review. That being the case, the intermediate court should have considered
the claim on its merits. Accord Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa.
Super. 2015) (applying Laboy to reach an issue set forth in a “boilerplate” concise
statement where the trial court readily apprehended the issue).18
IV.
For the reasons given above, the Superior Court’s ruling is affirmed insofar as it
upheld the common pleas court’s denial of Appellant’s motion in limine, thereby
excluding from trial any evidence concerning the alleged prostitution convictions of A.P.
and M.H. The intermediate court’s order is vacated, however, to the extent it found
Appellant’s weight-of-the-evidence claim waived, and the matter is remanded for a
merits disposition of that claim.
Chief Justice Baer and Justices Todd, Donohue, Dougherty and Wecht join the
opinion.
Justice Mundy files a concurring opinion.
18 Our holding does not purport to alter this Court’s precedent indicating that, if the
appellant fails to file a timely concise statement in compliance with the trial court’s
directive – or entirely omits certain issues from an otherwise compliant statement – the
issues are waived regardless of whether the trial court issued a Rule 1925(a) opinion
addressing them. See Commonwealth v. Hill, 609 Pa. 410, 426-27, 16 A.3d 484, 493-
94 (2011). Hill noted that the only exception is for issues subject to automatic statutory
review in a direct capital appeal. See id. at 425, 16 A.3d at 492.
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