Com. v. Rosser, W.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WANYA ROSSER, :
:
Appellant : No. 3258 EDA 2013
Appeal from the Judgment of Sentence June 4, 2013,
Court of Common Pleas, Montgomery County,
Criminal Division at No. CP-46-CR-0008571-2010
BEFORE: DONOHUE, WECHT and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MARCH 16, 2015
Appellant, Wanya Rosser (“Rosser”), appeals from the judgment of
sentence following his convictions of rape, 18 Pa.C.S.A. § 3121(a)(1), sexual
assault, 18 Pa.C.S.A. § 3124.1, indecent assault, 18 Pa.C.S.A. § 3126(a)(1),
indecent assault by forcible compulsion, 18 Pa.C.S.A. § 3126(a)(2),
recklessly endangering another person, 18 Pa.C.S.A. § 2705, and terroristic
threats, 18 Pa.C.S.A. § 2706(a)(1). For the reasons that follow, we vacate
the judgment of sentence and remand for a new trial.
On April 27, 2012, the trial court declared a mistrial after the jury was
unable to reach a verdict. On January 17, 2013, a second jury found Rosser
guilty of the above-referenced crimes. On June 4, 2013,1 the trial court
1
Rosser purports to appeal from the trial court’s order denying his post-
sentence motions. A direct appeal in a criminal proceeding is instead from
*Retired Senior Judge assigned to the Superior Court.
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sentenced Rosser to an aggregate term of imprisonment of not less than six
and one half nor more than thirteen years of imprisonment, followed by
seven years of probation.2
This direct appeal followed, in which Rosser presents two issues for our
review and determination:
1. Did the trial court abuse its discretion in denying the
Appellant’s post sentence motion for a new trial
insofar as his convictions for rape, sexual assault,
indecent assault, indecent assault by forcible
compulsion, simple assault, recklessly endangering
another person and terroristic threats are manifestly
against the weight of the evidence presented at trial?
2. Did the trial court violate the Appellant’s right to
confront the witnesses against him as guaranteed by
the Sixth Amendment to the United States
Constitution and Article I, Section 9 of the
Pennsylvania Constitution by granting the
Commonwealth’s objection to defense counsel’s
attempt to cross-examine the alleged victim
regarding her conversation with Appellant during the
walk to her house as such testimony was aimed at
establishing the complainant’s motive to fabricate
the allegations against Appellant?
Rosser’s Brief at 5.
We will address Rosser’s second issue, as we consider it to be
dispositive. As set forth at length in its written opinion pursuant to Rule
the judgment of sentence. Commonwealth v. Preacher, 827 A.2d 1235,
1236 n.1 (Pa. Super. 2003). We have amended the caption accordingly.
2
The trial court initially sentenced Rosser to nine years of probation, but
later granted his post-sentence motion to vacate his conviction for simple
assault, which resulted in a reduction of his probationary period to seven
years. The trial court denied all other post-sentence motions.
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1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial court’s
review of the evidence reflects that the Commonwealth’s principal witness,
Shannon Ryan (“Ryan”), testified that Rosser attacked and forcibly raped
her, and that she did not struggle during the rape and acquiesced in certain
of his requests thereafter (including to give him her real name and phone
number and to allow him to walk her to her door) to gain his trust so that he
would not hurt or even kill her. Conversely, Rosser’s principal defense was
that the sexual intercourse with Ryan was consensual and that she was a
willing participant during the entire episode (including the walk to her door
and the exchange of the phone number).
At the end of Ryan’s cross-examination at the first trial, the following
exchange occurred:
Q. Ms. Ryan, it is true that when you got up to your
house and you were waiting there and you gave him
your phone number and he was entering it into your
phone, you asked him when am I going to see you
again; isn’t that true?
A. He entered nothing into my phone. I was not
waiting there for him. I was waiting for him to finish
taking the number so I can finish whatever it was
that I was able to take from this rape and turn it into
what seemed to be a meet-cute in a movie and got
inside my house.
Q. And he told you, I can’t see you again, we could be
friends, but I have a girlfriend, didn’t he?
A. Absolutely not.
[Commonwealth]: Objection, Your Honor.
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[Trial Court]: All right. Sustained. That
objection is sustained. Strike that
question from your deliberations.
Okay?
[Counsel for Rosser]: Your Honor, may we see you at
sidebar?
(A conference was held in the robing room, not reported.)
N.T., 4/24/2012, at 289-90.
Before the second trial, Rosser filed a motion in limine seeking to
pursue at the second trial this same line of cross-examination regarding his
alleged girlfriend.3 The Commonwealth filed a conflicting motion in limine to
prohibit any such cross-examination. The trial court granted the
Commonwealth’s motion in limine, concluding that the questioning elicited
hearsay testimony (Rosser’s alleged statements to Ryan). The trial court
precluded Rosser’s counsel from pursuing this line of cross-examination
unless he could represent that he was going to introduce other evidence to
support Rosser’s statement about his girlfriend and their child. N.T.,
1/14/2013, at 25. In its Rule 1925(a) opinion, the trial court contends that
its ruling regarding the hearsay nature of the proposed line of cross-
examination was correct. Trial Court Opinion, 1/24/2014, at 15-17. The
3
Rosser’s proposed cross-examination also included that he informed her
that he could not see her again because he and his girlfriend had a child
together.
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trial court also argues that even if incorrect, its ruling constituted harmless
error.
In evaluating the denial or grant of a motion in limine, our standard of
review is to apply the abuse of discretion standard used for other evidentiary
rulings. Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super.
2014). “A trial court has broad discretion to determine whether evidence is
admissible,” and a trial court's ruling regarding the admission of evidence
“will not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous.” Commonwealth v. Huggins, 68 A.3d
962, 966 (Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013).
The Confrontation Clause in the Sixth Amendment to the United States
Constitution provides that all criminal defendants enjoy “the right to confront
and cross-examination adverse witnesses.” Commonwealth v. Laird, 988
A.2d 618, 630 (Pa.), cert. denied, 131 S.Ct. 659 (2010). As the United
States Supreme Court has explained, “the exposure of a witness’ motivation
in testifying is a proper and important function of the constitutionally
protected right of cross-examination.” Delaware v. Van Arsdall, 475 U.S.
673, 678 (1986).
The trial court’s ruling that the proposed line of cross-examination was
hearsay was clear error. The questions at issue were not aimed at eliciting
hearsay testimony from Ryan because they were not directed at proving the
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truth of the matter asserted, i.e., as substantive evidence that Rosser had a
girlfriend and baby. Instead, the proposed line of questioning was directed
at exposing Ryan’s alleged motive for fabricating the rape charges. Rule
801(c) of the Pennsylvania Rules of Evidence defines hearsay as “a
statement that . . . the declarant does not make while testifying at the
current trial or hearing; and . . . a party offers in evidence to prove the truth
of the matter asserted in the statement.”). Pa.R.E. 801(c). In a recent
case, this Court reiterated that “an out-of-court statement is not hearsay
when it is introduced for the purpose of establishing the fact that the
statement itself was made, rather than for the truth of that statement.”.
Commonwealth v. Belknap, 105 A.3d 7, 10 (Pa. Super. 2014). The
questions at issue were intended merely to show that Rosser said these
things to Ryan (about a girlfriend and a child) – which allegedly dashed her
hopes for a romantic relationship and thus motivated her to fabricate false
rape accusations in retaliation.
In its Rule 1925(a) opinion, the trial court argues that even if its
evidentiary ruling prohibiting Rosser from pursuing the proposed line of
questioning was in error, it was harmless because the Commonwealth
presented a “strong overall case.” Trial Court Opinion, 1/24/2014, at 17. In
particular, the trial court contends that there was “an absence of evidence
contradicting Ryan’s testimony” and “an abundance of circumstantial
evidence corroborating Ryan’s testimony. Id. at 18. Accordingly, the trial
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court concludes that Rosser’s questions about Ryan’s motives “would not
have been able to convince a reasonable finder of fact of his theory.” Id.
We cannot agree that the trial court’s exclusion of Rosser’s proposed
line of cross-examination was harmless error. Where a violation of an
appellant’s rights under the Confrontation Clause are at issue, harmless
error exists where: (1) the error did not prejudice the defendant or the
prejudice was de minimis; (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly admitted
and uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison that the
error could not have contributed to the verdict. See, e.g., Commonwealth
v. Atkinson, 987 A.2d 743, 751-52 (Pa. Super. 2009) (quoting
Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556, 561 (2002),
cert. denied, 540 U.S. 858 (2003)).
With regard to the prejudice analysis,
[w]hile some constitutional claims by their nature
require a showing of prejudice with respect to the
trial as a whole, the focus of the Confrontation
Clause is on individual witnesses. Accordingly, the
focus of the prejudice inquiry in determining whether
the confrontation right has been violated must be on
the particular witness, not on the outcome of the
entire trial. It would be a contradiction in terms to
conclude that a defendant denied any opportunity to
cross-examine the witnesses against him
nonetheless had been afforded his right to
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confront[ation] because use of that right would not
have affected the jury's verdict. We think that a
criminal defendant states a violation of the
Confrontation Clause by showing that he was
prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby
to expose to the jury the facts from which jurors ...
could appropriately draw inferences relating to the
reliability of the witness.
Van Arsdall, 475 U.S. at 680 (citations and internal quotation marks
omitted).
The Commonwealth’s case against Rosser depended almost entirely on
Ryan’s credibility with the jury. As a result, Rosser was prejudiced by the
trial court’s refusal to permit his counsel to “engag[e] in otherwise
appropriate cross-examination” designed to show Ryan’s alleged motivation
to misrepresent what occurred on the night at issue. The questions
regarding Rosser’s alleged statements about his inability to have a romantic
relationship with Ryan because of his girlfriend and baby were crucial to
Rosser’s attempts to call Ryan’s credibility with the jury into question. While
it is true, as the trial court states, that various circumstantial evidence
(including surveillance videos and the SANE report) supports Ryan’s version
of events, this evidence is also consistent with Rosser’s consent defense. In
short, the Commonwealth’s most important evidence (by far) is Ryan’s
testimony, and Rosser has a constitutionally protected right to cross-
examine her to attempt to convince the jury that her version of events is not
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credible. Rosser’s proposed line of cross-examination questions constitutes
a prototypical Van Arsdall attempt “to expose to the jury the facts from
which jurors ... could appropriately draw inferences relating to the reliability
of the witness.” The trial court’s error prejudiced Rosser in his cross-
examination of Ryan.
The learned Dissent misses the mark with its contention that Rosser’s
“full and fair opportunity to cross-examine” Ryan was properly limited to the
issues raised by the Commonwealth during direct examination. By rule, the
scope of permissible cross-examination is not limited to the subject matter
of direct examination. Rule 611(b) of the Pennsylvania Rules of Evidence
provides that the scope of cross-examination “should be limited to the
subject matter of the direct examination and matters affecting credibility
….” Pa.R.E. 611(b) (emphasis added). Rosser’s proposed line of questions
regarding Ryan’s alleged motivation to fabricate evidence constitutes
“matters affecting credibility,” and was therefore was not outside the scope
of permissible cross-examination. The trial court thus had no discretion to
circumscribe cross-examination in the manner recommended by the Dissent.
Moreover, the Dissent apparently misconstrues the nature of our ruling
here, as this Court takes no “great leap” and does not conclude that Rosser’s
proposed cross-examination “would show” that Ryan’s hopes for a
relationship were in fact dashed. Instead, we hold only that Rosser has the
constitutional right to attempt to establish his defense through cross-
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examination of motive. It is not this Court’s proper function to predict
whether Rosser will or will not be successful in convincing the jury of the
merits of his defense, and we plainly have not done so.
For these reasons, the judgment of sentence must be vacated and the
case remanded to the trial court for a new trial. Jurisdiction relinquished.
Wecht, J. joins the Memorandum.
Platt, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2015
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