Com. v. McCourt, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DENVER SAMUEL MCCOURT :
:
Appellant : No. 1010 MDA 2020
Appeal from the Judgment of Sentence Entered September 6, 2019
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001931-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 29, 2021
Denver McCourt appeals from the judgment of sentence entered after a
jury convicted him of aggravated indecent assault and indecent assault.1
McCourt admits to having sexual intercourse with the complainant in his
camper after meeting her at a local bar while out with some of his friends, but
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* Retired Senior Judge assigned to the Superior Court.
1 McCourt appeals from the September 6, 2019 judgment of sentence.
McCourt filed timely post-sentence motions on September 12, 2019. The trial
court held a hearing on the post-sentence motions on December 17, 2019, at
which time an order was issued holding the matter under advisement. Under
the Rules of Criminal Procedure, McCourt’s post-sentence motions were
denied by operation of law on January 10, 2020. See Pa.R.Crim.P.
720(B)(3)(a). However, the Clerk of Courts did not enter an order
accomplishing this action until July 13, 2020. We have held that a court
breakdown occurs when the trial court clerk fails to timely enter an order
denying post-sentence motions as a matter of law pursuant to Pa.R.Crim.P
720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa.
Super. 2007). This appeal, filed August 3, 2020, is therefore timely.
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asserts that it was consensual. The complainant, however, testified that
McCourt raped her after getting her alone in his camper under the guise of
showing her to the restroom. It is largely undisputed that following the
intercourse, the complainant ran back to McCourt’s friends, and informed
them she had been raped. McCourt’s friends did not react and she called the
police. The dispatcher directed her to drive to the State Police barracks, where
an officer met her and took her to the hospital for a rape kit examination. At
trial, McCourt’s defense of consent centered around his contention that the
complainant consented to sex with him and then fabricated a rape allegation
when she thought her significant other might find out.
McCourt raises three challenges on appeal. First, McCourt contends that
the trial court erred in denying his motion in limine to admit the complainant’s
social media posts to impeach her credibility. Next, McCourt argues that the
trial court erred by denying the defense request for a missing evidence jury
instruction to account for the lack of the audio of the 911 call made by the
complainant and the video footage of her entering the State Police barracks.
Finally, McCourt challenges the sexual offender registration requirements as
applied to him under Subchapter H of the Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10-9799.42, as violating due
process and his right to reputation. We will address these claims in order.
McCourt first argues that the trial court erred in precluding photographs
the complainant posted on her social media account after the incident. Our
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standard of review when assessing an evidentiary ruling by a trial court is
deferential. See Commonwealth v. Wallace, 244 A.3d 1261, 1269 (Pa.
Super. 2021). We will only reverse an admissibility finding when a clear abuse
of discretion is present. See id. A mere error of judgment does not constitute
an abuse of discretion. See id. Rather, to abuse discretion the trial court must
have made an error of law or made a judgment that the record shows is
manifestly unreasonable or based on bias, prejudice, ill will or partiality. See
id.McCourt attempted to pierce the Rape Shield with a motion in limine to
admit photographs the victim posted to her social media account. The Rape
Shield Law provides, “[e]vidence of specific instances of the alleged victim’s
past sexual conduct, … 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”. 18 Pa.C.S. § 3104(a). In order to
offer evidence prohibited by the Rape Shield at trial, a defendant must, “file a
written motion and offer of proof at the time of trial”. Id. at (b). Then, if the
trial court finds the motion and offer of proof to be sufficient it must hold an
in-camera hearing and decide the relevance and admissibility of the evidence
on the record. See id. During the in-camera hearing, the trial court conducts
a balancing test weighing: “(1) whether the proposed evidence is relevant to
show bias or motive or to attack credibility; (2) whether the probative value
of the evidence outweighs its prejudicial effect; and (3) whether there are
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alternative means of proving bias or motive or to challenge credibility.”
Commonwealth v. Jerdon, 229 A.3d 278, 285-286 (Pa. Super. 2019)
(citations omitted).
McCourt’s motion in limine requested that the trial court allow the
introduction of two social media posts. The posts in question are pictures the
complainant shared on March 20, 2018, and March 22, 2018. McCourt
contended in his motion that the complainant’s posts, which he characterizes
as “sexually provocative images of herself”, could be viewed by a jury as
conduct “inconsistent with a person who has been recently raped by force”.
Defendant’s Motions in Limine, 1/17/2019 at 11. McCourt argued that the
social media posts were relevant to the complainant’s credibility and were
admissible to show her conduct and state of mind following the alleged rape.
See Defendant’s Brief in Support of His Motions in Limine, 1/17/2019 at 15-
16. He claimed the social media posts support his contention that she
fabricated the rape allegation. See id. He further argued that if the
photographs were not admitted, his rights under the confrontation clause of
the United States Constitution would be violated. See id.The trial court denied McCourt’s motion in limine. See Trial Court Order,
3/7/2019. In its Pa.R.A.P. 1925(a) Opinion, the trial court explained the
process by which evidence of the past sexual conduct of an alleged rape victim
may be ruled admissible under the Rape Shield Law. See Trial Court Opinion,
1/6/2021 at 37-38. The trial court concluded that it did not need to proceed
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to the statutorily required in-camera hearing because it found that the “proffer
is insufficient on its face”. Id. at 38. The trial court clarifies that it specifically
found the photographs to be protected under the Rape Shield Law:
The posted photographs are not relevant to show either that she
had not been assaulted or that she was not acting like a person
who had been assaulted. Put simply, they do not exculpate
Defendant. Indeed, evidence of the photos tends to show simply
that the complainant did indeed pose for and posted the
photographs almost three weeks after the incident. In our
judgment, the photos – which are of an artistic but also
provocative nature – clearly represent the type of evidence
prohibited by the Rape Shield Law. Accordingly, this court properly
denied Defendant’s motion in limine to admit the victim’s social
media posts.
Id. at 40.
On appeal, McCourt reiterates his argument presented in his motion in
limine. See Appellant’s Brief, at 3-8. He furthers his argument by claiming
that not admitting the photographs into evidence violated his Sixth
Amendment right to confrontation. See id. at 3. McCourt cites to case law
supporting the fact that the Rape Shield Law must bow to a defendant’s right
to cross-examine their accuser and relevant evidence that shows bias or calls
into question credibility cannot be excluded under it. See id. at 3-8. McCourt
cites cases that were remanded for new trials or evidentiary hearings where
appellants made claims that complainants’ relationships with third parties
were evidence of motive to fabricate assault allegations. See id. (citing
Commonwealth v. Killen, 680 A.2d 851 (Pa. 1996), Commonwealth v.
Black, 487 A.2d 396 (Pa. Super. 1985), Commonwealth v. Northrip, 945
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A.2d 198 (Pa. Super. 2008, and Commonwealth v. Palmore, 195 A.3d 291(Pa. Super. 2018).
We agree with the trial court that these cases are distinguishable. In
Black, Northrip, and Palmore, the evidence at issue was proffered to
establish that the complainant had a motive to fabricate the allegation of
assault. See Black, 487 A.2d at 398 (recognizing that appellant argued that
evidence of the complainant’s sexual relationship with her brother was
necessary to establish her motive to punish appellant for separating her from
her brother); Northrip, 945 A.2d at 204 (concluding that evidence of the
complainant’s sexual relations with a third party could establish a motive to
fabricate the assault charge due to complainant’s fear of her “overprotective
mother”); Palmore, 195 A.3d at 295 (agreeing that evidence of complainants
prior sexual relations could establish motive to fabricate where defendant had
previously told complainant’s boyfriend that she had cheated on the
boyfriend).
Here, other than a passing allegation that the social media posts showed
the complainant “had a motive to fabricate the allegations[,]” McCourt does
not link the posts to a motive to fabricate. Appellant’s Brief, at 8. Instead, his
primary argument on appeal is that the posts “would have shown behavior
that was inconsistent with having been violently raped just two weeks prior
and it would have impeached her testimony regarding the physical and
psychological[] effects that the alleged attack had on her.” Id., at 9. As such,
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Black, Northrip, and Palmore do not support McCourt’s argument on
appeal.
Much more relevant, though ultimately still unavailing, is McCourt’s
reliance on Killen. In Killen, the defendant proffered evidence of sexually
provocative statements made by the allegedly intoxicated complainant made
in the ambulance and in the hospital immediately after she was allegedly
assaulted. See Killen, 680 A.2d at 852-53. The Supreme Court of
Pennsylvania held that the Rape Shield did not act to prohibit this evidence:
The Rape Shield Law was not designed to exclude evidence
of a victim’s statements to persons which are part of and relevant
to the ongoing episode in which the alleged criminal activity takes
place. The fact that the statements are sexually provocative in
content does not automatically bring them within the protective
purview of the Rape Shield Law.
Moreover, appellant did not seek admission of the
complainant’s provocative statements to demonstrate that
complainant acted promiscuously in her past or that her
reputation was such; rather, appellant sought to introduce the
proffered line of evidence for the limited purpose of impeaching
the complainant’s credibility by demonstrating her state of mind
immediately after the alleged attack.11
11See e.g., Commonwealth v. Lowenberg, 481
Pa. 244, 392 A.2d 1274 (1978) (a victim’s out-of-court
statement[s] demonstrating victim’s state of mind are
admissible).
Id., at 854.
Killen is also clearly distinguishable. The statements at issue there were
uttered immediately after the alleged assault and were probative of the
complainant’s state of mind “during the ongoing episode in which the alleged”
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assault occurred. Id. In contrast, the social media posts at issue here were
published approximately three weeks after the alleged assault. They could not
be probative of the complainant’s state of mind when she initially accused
McCourt of assaulting her.
McCourt focuses on language in Killen that opens the door to
questioning how a sexual assault victim should respond to an assault:
“Appellant argued that the complainant’s statements made after the alleged
assault were relevant to the defense theory of her fabrication of the events
supporting the criminal charges against appellant since her conduct and state
of mind could be fairly construed by the jury as being inconsistent with that
of a person recently criminally assaulted.” Id.
We conclude this sentence from Killen does not stand for the broad
proposition that evidence of conduct “inconsistent with that of a person
recently criminally assaulted” is admissible at trial. Indeed, the Supreme Court
of Pennsylvania has recently recognized that while “some laypersons may be
aware of common behaviors and responses to sexual abuse, it would be a
generalization to assume that the average juror is privy to the complex
psychological dynamics surrounding sexual abuse.” See Commonwealth v.
Jones, 240 A.3d 881, 891 (Pa. 2020).2 As such, “a properly qualified expert
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2 Jones dealt specifically with sexual abuse of a minor. We see no reason that
the same analysis would not apply to adult victims of sexual violence.
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may testify to facts and opinions regarding specific types of victim responses
and behaviors in [cases] involving sexual assaults, provided the experts do
not offer opinions regarding the credibility of any witness, including the
victim.” Id., at 897.
Accordingly, the factual inference sought by McCourt here would
generally only be possible in conjunction with expert evidence of how a sexual
assault victim would act several weeks after the assault. McCourt did not
present such evidence here. Nor do we believe that, in general, the necessary
predicate expert testimony is likely to be admissible in any event, given the
prohibition on opinions concerning the credibility of the victim.
Rather, we construe Killen to stand for the sensible proposition that
evidence of the complainant’s demeanor and state of mind during and
immediately after an alleged sexual assault is admissible in the prosecution of
that allegation. While “immediately” is not a precise adverb, trial courts have
long been entrusted with addressing similar questions, for example, under the
prohibition against hearsay. Whatever the limits of “immediately” may be in
any given case, we have no hesitation in agreeing with the trial court here
that the social media posts at issue were not published immediately after the
alleged assault. McCourt’s first issue on appeal merits no relief. McCourt next
argues that he should have received a missing evidence instruction regarding
the complainant’s 911 call and video of her arriving at the State Police
barracks. McCourt contends that the trial court should have instructed the jury
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on missing evidence pursuant to his request at trial. See Appellant’s Brief, at
13. McCourt argues that the standard criminal jury instruction for failure to
produce a document or other tangible evidence at trial should have been
given, the instruction reads:
1. There is a question about what weight, if any, you should give to
the failure of [a party] [the Commonwealth] [the defendant] to
produce an item of a potential evidence at this trial [identify
document or tangible item].
2. If three factors are present, and there is no satisfactory
explanation for a party’s failure to produce an item, the jury is
allowed to draw a common-sense inference that the item would
have been evidence unfavorable to that party. The three
necessary factors are:
First, that the item is available to that party and not to the other;
Second, that it appears the item contains or shows special
information material to the issue; and
Third, that the item would not be merely cumulative evidence.
3. Therefore, if you find these three factors present and there is no
satisfactory explanation for the [party’s] [Commonwealth’s]
[defendant’s] failure to produce [the item], [specify item], at this
trial, you may infer, if you choose to do so, that it would have
been evidence unfavorable to [that party] [the Commonwealth]
[the defendant].
Pa. SSJI (Crim.) §3.21B.
McCourt argues on appeal that the 911 tape and the video from the
State Police barracks were available to the Commonwealth and, since they
were not available at the time of trial, he is entitled to the proposed jury
instruction as a remedy for the Commonwealth’s failure to preserve the
evidence. See Appellant’s Brief, at 14-18. Our standard of review when
assessing the denial of a jury instruction is deferential to the trial court. See
Commonwealth v. Sebolka, 205 A.3d 329, 342 (Pa. Super. 2019) (citation
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omitted). We will only reverse the denial of a jury instruction if there was an
abuse of discretion or error of law. See id.Prior to trial, McCourt filed an extensive Motion to Compel Discovery and
included the audio of the 911 call and video of the complainant entering the
State Police barracks in his requests. See Defendant’s Motions to Compel
Discovery and for Extension of Time in Which to File His Omnibus Pre-Trial
Motion, at 4-5. A hearing was held on the discovery motion at which time
counsel for defense and the Commonwealth agreed that the audio from the
911 no longer existed. See N.T., 9/13/2018, at 2. When discussing the video
of the complainant entering the State Police barracks, defense counsel told
the court that “to the extent that it exists” he believed it was included in
discovery he received the day of the hearing. See id. at 4. At the conclusion
of the discovery hearing, the trial court noted that the only piece of discovery
that remained in dispute was Pennsylvania State Police policies and
procedures that McCourt requested. See id. at 8. The court later ruled that
the motion to compel discovery of those policies and procedures was denied.
See Trial Court Order, 10/9/2018.
At trial, Trooper Evans, who spoke with the complainant on the phone
during her 911 call and was present at the barracks when she arrived, testified
regarding the audio and video evidence. See N.T., Jury Trial, 3/12/2019-
3/14/2019 at 93-95. On cross examination, defense counsel asked Trooper
Evans if he knew where the audio of the 911 call and the video of the
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complainant entering the barracks was kept. See id. at 101-104. Troops
Evans responded that he did not know where those recordings were located.
See id.
At the charging conference following trial, defense counsel requested
the jury be charged on missing evidence. See id. at 415. The Commonwealth
asserted that the 911 call and video did not exist as they were automatically
recorded over and that Trooper Franchella, who was also involved in the
investigation, if asked about this, would have been able to explain the process.
See id. at 415-416. The trial court decided that, based on the record, the
instruction would not be given. See id. at 417.
In order to assign error to an omitted jury instruction, a specific
objection must be made outside of the presence of the jury before
deliberations begin. See Pa.R.Crim.P. 647(C). Requesting a jury instruction,
but then failing to object when the trial court does not charge that instruction
waives a challenge to the omission of the instruction on appeal. See
Commonwealth v. Janda, 14 A.3d 147, 163 (Pa. Super. 2011). After the
trial court denied defense counsel’s request for a missing evidence jury
instruction and charged the jury, no objection was made. See N.T., Jury Trial,
3/12/2019-3/14/2019, at 486. Arguably, McCourt has waived this issue on
appeal. Even if the issue is not waived, however, we conclude it has no merit.
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Here, the trial court found that the evidence no longer existed when
McCourt requested it. Further, McCourt has not established that the
Commonwealth had any duty to preserve it prior to the request. McCourt has
failed to establish that these recordings held any information that was relevant
to the issue of whether the complainant had been sexually assaulted.
Accordingly, we conclude McCourt’s second issue on appeal merits no relief.
Finally, McCourt presents a claim relating to his reporting and
registration requirements under SORNA. McCourt argues that the trial court
violated his right to reputation under the Pennsylvania Constitution by
designating him as a Tier III sex offender and requiring him to register for life.
See Appellant’s Brief at 18-19. McCourt requests that we “reverse and remand
for an individualized hearing on whether the irrebuttable presumption of
dangerousness provided by SORNA violates Appellant’s rights”. Id. at 19.
McCourt relies on Commonwealth v. Muhammad to support his
argument. See id., 241 A.3d 1149 (Pa. Super. 2020). In Muhammad, the
defendant was convicted of interference with the custody of children and
related charges and was designated as a Tier I offender under SORNA. See
id. at 1151. We vacated the order requiring her to register as a sexual offender
because we found that SORNA created an unconstitutional irrebuttable
presumption as applied to her specifically, based on the nature of the crime
and her history. See id. at 1157-1160. We do not find Muhammad analogous
to the instant case. McCourt was convicted of sexual offenses and instead, we
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find guidance regarding his SORNA requirements in Commonwealth v.
Torsilieri. 232 A.3d 567 (Pa. 2020).
In Torsilieri, the Pennsylvania Supreme Court addressed Revised
Subchapter H of SORNA. See id. at 581. The Court found that Torsilieri’s
challenges to the legislature’s assumptions that all sexual offenders have a
high risk of re-offending and that the tier-based registration scheme protects
the public from sexual offenders re-offending were valid constitutional
questions. See id. at 584. Ultimately, the Court remanded the case to the trial
court so that both sides could develop arguments on whether the irrebuttable
presumption raised by SORNA applied to the defendant. See id. at 596. The
Torsilieri appeal was pending when McCourt was sentenced. However,
McCourt brought Torsilieri to the trial court’s attention prior to sentencing.
See Defendant’s Sentencing Memorandum, 9/3/2019.
We find that, like Torsilieri, McCourt was not given the benefit of an
individualized hearing to determine whether the irrebuttable presumptions of
SORNA are constitutional as applied to him. Consequently, we remand for the
purpose of such hearing. We affirm regarding all other aspects of the sentence
and find no merit in any of the other claims on appeal.
Judgment of sentence affirmed. Case remanded for a hearing consistent
with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2021
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