Com. v. Goldstein, A.

J-A21031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARI GOLDSTEIN :
:
Appellant : No. 2095 EDA 2020
Appeal from the Judgment of Sentence Entered October 21, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005228-2018
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 22, 2021
Ari Goldstein (“Appellant”) appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County after a jury
convicted him of indecent assault by forcible compulsion, attempted
involuntary deviate sexual intercourse (“IDSI”) by forcible compulsion, and
attempted involuntary deviate sexual intercourse. Sentenced to three and
one-half to seven years’ incarceration with a five year probationary tail,
Appellant challenges the consolidation of sexual assault charges relating to
separate incidents alleged by different complainants, the court’s application of
the Rape Shield Law, the court’s evidentiary ruling as to the scope of cross-
examination, the sufficiency of the evidence, and the constitutionality of
Subsection H of the SORNA II statute. After careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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The Trial Court aptly sets forth the pertinent factual and procedural
history, as follows:
This case involves Appellant’s alleged sexual assault of two adult
female complainants, J.L. and R.F. At the time of both incidents,
all three individuals were undergraduate students at Temple
University, and Appellant was president of the university’s chapter
of Alpha Epsilon Pi (“AEPi”) (a college fraternity). N.T., 2/13/20,
at 7-8. Members of AEPi, including Appellant, resided at the AEPi
fraternity house on North Broad Street in Philadelphia.
CP-51-CR-0007533-2018, Complainant J.L.
At trial, J.L. (Complainant under Docket CP-51-CR-0007533-
2018) testified to the following events. At the time of the alleged
conduct, J.L. was a member of AEPi’s sister sorority, Alpha Epsilon
Phi (“AEPhi”). N.T. 2/12/20 at 42. J.L. maintained friendships
with several members of AEPi, including Appellant, and she and
her sorority sisters regularly frequented the AEPi house. N.T. at
42, 46, 56. Further, she and Appellant maintained a sexual
relationship, and the two had engaged in consensual sexual
contact “three or four” times before the incident at issue. N.T. at
46.
On the evening of November 29, 2017, members of AEPi invited
the sorority to the AEPi house to “pregame”[fn] before going to
campus bars around Temple University. N.T. at 42. J.L drank
“two or three glasses of wine” at the AEPi house; she testified that
she was “tipsy” but coherent. N.T. at 43. At some point, members
of AEPi and AEPhi left the fraternity house and went to The
Draught Horse, a bar located on Cecil B. Moore Avenue in
Philadelphia. N.T. at 43. Appellant did not accompany the group
to the bar. N.T. at 48.
[fn]To “pregame” is “to drink alcoholic beverages prior
to a social engagement to make it more enjoyable.”
Pre-Game, URBAN DICTIONARY, https://www.urban
dictinary.com/define.php?term=Pre-Game (last
visited Feb.3, 2021).
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Around 1:30 a.m., J.L. and two AEPi members, Matt Perel and
Mitchell Pisarz, left the bar and went back to the AEPi house.
Thirty minutes later, around 2:00 a.m., Appellant invited J.L. to
his bedroom. (Id. at 48); (Comm. Ex. 9 at 2-3) (unpaginated).
Appellant did not share the room with anyone, and J.L., who
accepted the invitation, went to his room by herself. N.T. at 48-
49. The two briefly spoke on Appellant’s couch before engaging
in consensual sexual intercourse. N.T. at 49. At some point,
Appellant positioned himself on top of J.L. and pressed his hand
on the area of her chest/collarbone, as he shoved the fingers of
his other hand into her throat. N.T. at 50. The complainant
struggled with him for “a couple of minutes” before she could
manage to speak and demand that he stop. Id. J.L. testified that
Appellant had never done that during their prior encounters, he
did not obtain consent to do that on the evening in question, and
the gesture scared her and caused her pain. N.T. at 50-51. She
further testified that Appellant’s actions caused her to sustain
bruises on her arm and collar bone. N.T. at 61.
After J.L. told Appellant to stop, he asked her to perform oral sex
on him. N.T. at 52. She testified that she briefly complied with
his request, explaining, “I just figured it was an easy way to kind
of . . . end the situation and get out of there as quickly as I could.”
Id. More specifically, J.L testified that she performed oral sex on
Appellant for less than five seconds, before telling Appellant,
“Stop, I don’t want to do this anymore.” Id. Appellant, who was
still seated on his couch, responded, “No, don’t stop,” grabbed the
back of J.L.’s head, and tried to push her mouth onto his penis.
N.T. at 53. Even as J.L. cried, repeatedly told him “no,” and
begged him to stop, Appellant did not stop. Id. J.L tried to
physically resist Appellant by pushing him away. N.T. at 54. The
two struggled for a few moments, but J.L. eventually managed to
break away from him. N.T. at 55, She stood up and said, “Can
you fucking stop,” before getting dressed and leaving Appellant’s
bedroom. Id.
CP-51-CR-0005228-2018, Complainant R.F.
At trial, R.F. (Complainant under Docket CP-XX-XXXXXXX-2018)
testified as follows. On February 25, 2018, R.F. went to a party
at the AEPi house with three friends. N.T., 2/12/20, at 138-139.
R.F., a freshman at the time of the incident, testified that she had
gone to the AEPi house almost every weekend since August of
2017. N.T. at 138. Before going to the party on February 25, R.F.
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partially consumed a mixed drink consisting of vodka and
Gatorade. N.T. at 139. She explained that she did not finish her
drink and she was not intoxicated at the time of the alleged
incident. N.T. at 140.
R.F. and her friends arrived at AEPi around 12:00 a.m. N.T. at
139. The group socialized and danced together for approximately
forty-five to fifty minutes before Appellant approached R.F. and
asked her if she wanted to go to his room to “smoke weed.” N.T.
at 141, 143. R.F. accepted the offer and followed Appellant to his
bedroom on the third floor. N.T. at 144. No one accompanied the
pair. N.T. at 144-45. When the two arrived, Appellant opened his
door and R.F. walked inside. N.T. at 145. Appellant immediately
grabbed R.F.’s wrist, locked his bedroom door, and pulled her to
the couch. Id.
Once the two were seated, Appellant kissed R.F.’s mouth, as he
maintained his grip on her wrist. N.T. at 147. She pulled away
and told him, “Stop. I’m not here to do this.” Id. Appellant
replied, “Why else would you come upstairs with me?” Id.
Appellant “pinned” R.F. on her back and continued to kiss her. Id.
R.F. described the incident in detail, explaining that he held both
of her hands above her head as he straddled her and pushed his
knee into her left thigh. N.T. at 147-48. The complainant
explained that she could not move, and she continuously
“beg[ged] him to stop.” N.T. at 148.
Appellant did not stop. N.T. at 148. Rather, he continued to kiss
her mouth as he pulled at her shirt and bra, eventually exposing
her left breast. Id. At some point, R.F. screamed and Appellant
“let go for a second.” N.T. at 150. R.F. managed to sit up, but
“as soon as [she] sat back up,” Appellant pushed her down and,
again, pinned her hands above her head. Id. The complainant
started to cry, scream, and “thrash” her body. N.T. at 151. Again,
Appellant stopped for a brief moment. Id. He then grabbed her
left arm and pulled her on top of him, before seizing and securing
both of her hands and pushing her head “towards his crotch.” N.T.
at 152. As he pushed her head and “thrust his hips’ towards her
face, Appellant told her, “You know you want to do this. That’s
what you came up here for. Just do it.” Id. Appellant continued
to push his groin towards her face as he grabbed his belt buckle
and indicated that he wanted her to unbuckle it. N.T. at 154. She
repeatedly urged him to stop, but he laughed and ignored her
pleas. N.T. at 152.
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Eventually, the complainant managed to free her leg and kick
Appellant. N.T. at 155-56. Appellant finally released his grip, and
R.F. immediately ran out of his room. N.T. at 156. As she fled
the attack, Appellant told her, “Don’t tell anyone about this.” Id.
As a result of the incident, R.F. sustained a large bruise on her
thigh. N.T. at 160.
R.F. testified that she did not report the incident to authorities
until April of 2018 because she did not want her favorite fraternity
to get into trouble due to the actions of “one bad seed.” N.T. at
161. The complainant eventually disclosed the abuse after
unexpectedly seeing Appellant on campus. N.T. at 162. The
sighting caused R.F. to suffer a panic attack, and she reported the
incident to police the following day. N.T. at 162-63.
...
On February 18, 2020, following a jury trial, [Appellant] was
convicted [as noted, supra]. [The trial] sentenced Appellant . . .
on October 21, 2020, to three and one-half to seven years’
incarceration, followed by five years of probation.
As part of his sentence, Appellant was also ordered to comply with
all Tier III sex offender obligations under the current Pennsylvania
Sexual Offender Registration and Notification Act (SORNA II).[fn]
At sentencing, counsel for Appellant raised an oral post-sentence
motion for reconsideration, challenging the legality of his sentence
under SORNA II. [The trial court] contemporaneously denied the
motion.
[fn] 42 Pa.C.S.A. § 9799.10 et seq.
Appellant filed a timely notice of appeal on October 26, 2020, and
on November 2, 2020, [the trial court] ordered him to file a
statement of errors complained of pursuant to Pa.R.A.P. 1925(b).
Appellant filed his 1925(b) statement on November 18, 2020. . .
.
Trial Court Opinion, at 3-6, 1-2.
Appellant raises the following issues for our consideration:
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I. Did the trial judge abuse her discretion in granting the
prosecution’s motion for consolidation of two separate
sexual offenses charged against the Appellant?
II. Did the trial judge abuse her discretion by refusing to allow
the defense to pierce the Rape Shield Statute to present
evidence that R.F. had engaged in other sexual activity right
after leaving the scene of the incident?
III. Did the trial judge abuse her discretion in refusing to allow
the defense to cross-examine the complainant regarding her
nonsexual conduct immediately after the encounter with the
Appellant?
IV. Was the evidence insufficient to prove beyond a reasonable
doubt that the Appellant was guilty of attempted involuntary
deviate sexual intercourse and attempted sexual assault?
V. Can SORNA II be constitutionally applied in this case where
it violated Appellant’s rights re [sic] ex post facto laws and
due process of law?
Brief for Appellant, at 3.
We have carefully reviewed the certified record, party submissions, and
the Rule 1925(a) opinion issued by the trial court. Based on our review, we
conclude that the claims raised by Appellant are without merit and that the
trial court has clearly, concisely, and accurately examined each of Appellant's
assertions. Accordingly, we affirm Appellant's convictions and judgments of
sentence for the reasons set forth by the trial court and adopt its February 5,
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2021 opinion as our own.1 Nevertheless, we provide the following review of
Appellant’s issues.
Appellant first posits that the trial court abused its discretion when it
granted the Commonwealth’s motion to consolidate J.L.’s and R.F.’s case. We
note that “whether to join or sever offenses for trial is within the trial court's
discretion and will not be reversed on appeal absent a manifest abuse thereof,
or prejudice and clear injustice to the defendant.” Commonwealth v.
Knoble, 188 A.3d 1199, 1205 (Pa.Super. 2018) (citation omitted).
Similarly:
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or misapplication
of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.
Commonwealth v. Tyson, 119 A.3d 353, 357–58 (Pa. Super. 2015) (en
banc) (citations omitted).
Appellant maintains that the evidence offered to prosecute one case
would not have been admissible at a separate trial for the other because proof
of one did not prove the other and he would have been found not guilty in
each case had they been tried separately. He argues that consolidation thus
____________________________________________
1 Henceforth, the parties are directed to attach a copy of the trial court's
opinion to each filing pertaining to our disposition in this appeal.
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violated both Pennsylvania Rule of Criminal Procedure 582,2 which allows
consolidation of separate informations only when evidence of each offense
____________________________________________
2 Rule 582. Joinder--Trial of Separate Indictments or Informations,
provides in pertinent part:
(A) Standards
(1) Offenses charged in separate indictments or informations may
be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable
of separation by the jury so that there is no danger of
confusion;
...
(B) Procedure
(1) Notice that offenses or defendants charged in separate
indictments or informations will be tried together shall be in
writing and filed with the clerk of courts. A copy of the notice shall
be served on the defendant at or before arraignment.
(2) When notice has not been given under paragraph (B)(1), any
party may move to consolidate for trial separate indictments or
informations, which motion must ordinarily be included in the
omnibus pretrial motion.
...
Comment: Ordinarily offenses or defendants charged in separate
indictments or informations will be tried separately. Under the
scheme set forth in this rule, it can be assumed that offenses
charged in the same indictment or information will be tried
together. See Rule 563. Similarly, offenses or defendants will be
tried together if written notice is served pursuant to paragraph
(B)(1) of this rule. In these situations, the court may order
separate trials either when the standards in paragraph (A) are not
met or pursuant to Rule 583. Absent joinder in the same
indictment or information or absent written notice pursuant to
(Footnote Continued Next Page)
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would be admissible in a separate trial for the other and is capable of
separation by the jury with no danger of confusion, and Rule 583,3 which
permits separate trials even when consolidation would otherwise be proper
under Rule 582 if it appears the defendant may be prejudiced by consolidating
the offenses.
Specifically, Appellant assigns error with the court’s determination that
the two alleged assaults reflected a “common plan, scheme, or design” that
warranted consolidation. He points to the distinctions between the two cases,
namely: J.L knew Appellant well and had prior consensual sexual relations
____________________________________________
paragraph (B)(1), a motion for consolidation is required under
paragraph (B)(2). A party may oppose such a motion either on
the ground that the standards in paragraph (A) are not met, or
pursuant to Rule 583.
....
Pa. R. Crim. P. 582
3Rule 583. Severance of Offenses or Defendants, provides in pertinent
part:
The court may order separate trials of offenses or defendants, or
provide other appropriate relief, if it appears that any party may
be prejudiced by offenses or defendants being tried together.
Comment: This rule provides the procedure whereby the court
may, because of prejudice to a party, order separate trials of
offenses or defendants that otherwise would be properly tried
together under Rule 582. A defendant may also request
severance of offenses or defendants on the ground that trying
them together would be improper under Rule 582.
Pa. R. Crim. P. 583
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with him, while R.F. was only familiar with Appellant on the night of her alleged
assault; J.L voluntarily entered Appellant’s room while R.F. claimed Appellant
lured her into the room under false pretenses; J.L acknowledged that her
alleged assault was prefaced by consensual sex before Appellant allegedly
became aggressive and the encounter morphed to nonconsensual, whereas
R.F. claimed the entire sexual interaction was nonconsensual; and, J.L.
claimed Appellant forcibly inserted his fingers down her throat while pressing
hard on her collarbone, but R.F. did not describe this particular conduct in her
case.
Moreover, Appellant argues that only where the identity of the
perpetrator in a sexual assault case is at issue is consolidation permitted.
Under the present facts, where identity is not at issue, Appellant contends that
admission of an alleged other bad act should have been limited to the
procedure governed by Pa.R.Crim.P. 404(b),4 pertaining to uncharged bad
acts.
____________________________________________
4 Section 404(b)(1) provides:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the character.
Pa.R.E. 404(b)(1).
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In this respect, Appellant asserts that the probative value of evidence
from either case to the other case was “outweighed by the prejudicial effect
of leaving the jury with the impression that [Appellant] should not be allowed
to walk away free as he may be worthy of condemnation as a sexual predator.”
Brief for Appellant at 22 (citing Commonwealth v. Tucker, 2017 WL
3484321 (Pa. Super. 2017) (courts guard against evidence of other crimes
that might demonstrate bad character or propensity to commit crimes)). This
was so, he continues, because the ample availability of witnesses for each
case necessarily diminished the probative value of the other case evidence,
particularly in R.F.’s case, where witnesses testified they either knew of R.F.’s
account of her assault—including her bruising—or witnessed first-hand her
expression of shock and fear as she left the fraternity.
Had consolidation not been allowed, Appellant concludes, he would have
been acquitted in both cases, not just one. He, thus, requests a new trial, as
he maintains the decision to consolidate represented an abuse of discretion.
In response, the Commonwealth rejects the proposition that separate
trials were required below. Under Rules of Criminal Procedure 582 and 583,
the Commonwealth observes, consolidation was proper because evidence of
each case would be admissible in a separate trial for the other to show
Appellant’s common plan, scheme, or design, and there was no danger of
confusing the jury when each witness confined his or her testimony to one
complainant and the two episodes were clearly distinct in time. Indeed, the
Commonwealth adds, the claim of unfair prejudice was belied by the jury’s
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ability to discern between the two, as demonstrated by its verdict of acquittal
in J.L.’s case and of conviction in R.F.’s case.
To dispute Appellant’s claim that consolidation is permitted only where
the identity of the perpetrator is in question, the Commonwealth discusses
decisional law affirming consolidation under the rules “to show a common
plan, scheme or design embracing commission of multiple crimes, or to
establish the identity of the perpetrator, so long as proof of one crime tends
to prove the others.” Commonwealth’s Brief of Appellee, at 11 (quoting
Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa.Super. 2006)
(emphasis added). Such a showing is made, the Commonwealth continues,
where “there are shared similarities in the details of each crime.”
Commonwealth’s Brief at 11. (quoting Andrulewicz, 911 at 168).
Compelling similarities between the two cases, the Commonwealth
argues, called for the consolidation below. On this point, the Commonwealth
adopts the opinion of the trial court, which addresses such similarities in its
Pa.R.A.P. 1925(a) Opinion, as follows:
Despite the differences noted above [Appellant’s ongoing sexual
relationship with J.L compared with his passing familiarity with
R.F; incident with J.L beginning with consensual vaginal
intercourse whereas no form of intercourse preceded incident with
R.F.], the significant similarities between Appellant’s criminal
episodes warrant admission under Rule 404(b) and consolidation
under Rule 582(A)(1)(a).
First, there are remarkable similarities between the individual
complainants. Both women are close in age (R.F. was eighteen
and J.L. was twenty-one at the time of the alleged conduct) (N.T.
2/12/20 at 41, 170); both complainants are white, female, and
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notably petite (N.T. at 148), (N.T. 2/14/20 at 31), and (Comm.
Mot. at 5) (unpaginated); at the time of the underlying incidents,
both complainants were undergraduate students at Temple
University (N.T. 2/12/20 at 41, 137); both complainants were
familiar with Appellant and frequently attended parties and other
social gatherings at the AEPi house (N.T. at 42, 128); and, on the
respective days in question, both complainants were guests in
Appellant’s home immediately before the underlying criminal
conduct. (N.T. at 42, 139).
The particular way in which Appellant committed the crimes is also
markedly similar:[fn]
[fn] During
his closing statement, defense counsel even
remarked on the notable similarity between the two
cases, stating that the allegations were so similar that
they seemed “concocted.” N.T. 2/14/20 at 42.
1. Appellant invited both women to his bedroom and attacked
them while they were alone with him. N.T. 2/12/20 at 47-48,
(Comm. Ex. 9) (asking J.L to “[c]ome here” to his bedroom);
N.T. at 143 (approaching R.F. and asking her to go to his
bedroom to smoke).
2. Both complainants testified that Appellant engaged in
shockingly aggressive conduct immediately before indicating
that he wanted oral sex. J.L. testified that Appellant pinned
her against the couch and shoved his fingers into her throat,
before asking her to perform oral sex on him (N.T. at 50-51).
R.F. testified that Appellant pinned her back to the couch,
exposed her left breast, and bit her, moments before he
commanded her to “give [him] head.” N.T. at 149, 199.
3. Each woman testified that Appellant put his hand on the back
of her head and pushed her head towards his penis. N.T. at
53, 152.
4. Both complainants cried and repeatedly begged Appellant to
stop; Appellant ignored them both. N.T. at 53, 147-48, 151-
52. Appellant used physical force to overpower both women
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as they tried to resist him and push him away. N.T. at 53-55,
147-156.
5. Both encounters ended only when the women—after significant
struggle—managed to partially or completely break free from
Appellant’s grip. N.T. at 55, 156.
6. The situs of both incidents is precisely identical; Appellant
assaulted both complainants on the couch in his bedroom. N.T.
at 49-52, 145-47.
7. Finally, both incidents occurred during early morning hours
(J.L. around 2:00 a.m. and R.F. around 1:00 a.m.). N.T. at 48,
139-41.
These matching characteristics are not trivial details, and they are
not limited to the “essential elements” of the alleged crimes. See
Frank, 577 A.2d at 614. Rather, they indicate a unique pattern
that distinguishes Appellant’s actions from the actions of other
sexual assailants. See Hughes, 555 A.2d at 1283 (admitting
evidence of a prior rape at a rape-murder trial where the two
victims were three years apart in age, the crimes occurred during
the day in a similar manner). Accordingly, [the trial court]
determined that the incidents were highly probative of Appellant’s
common scheme to invite his female peers to his bedroom,
violently attack them, and force them to engage in oral
intercourse. . . . .
Moreover, consolidation in this case was not unduly prejudicial.
Unfairly prejudicial evidence is any evidence having a “tendency
to suggest decision on an improper basis or to divert the jury’s
attention away from its duty of weighing the evidence impartially.”
Pa.R.E. 403 cmt. All relevant Commonwealth evidence is
prejudicial to a defendant. Commonwealth v. Broaster, 863
A.2d 588, 592 (Pa.Super. 2004). Therefore, exclusion is limited
to evidence that is unduly prejudicial—namely, evidence that is
“so prejudicial that it would inflame the jury to make a decision
based upon something other than the legal propositions relevant
to the case.” Commonwealth v. Antidormi, 84 A.3d 736, 750
(Pa.Super. 2014) (citing Commonwealth v. Owens, 929 A.2d
1187, 1191 (Pa.Super. 2007).
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Here, consolidation did not confuse the jury, “inflame” the jury’s
sensibilities, or lead them to convict on an improper basis. Rather,
the jury clearly demonstrated its ability to both separate the
evidence presented under each docket and weigh that evidence
independently, as evidenced by the fact that the jury rendered a
verdict of “not guilty” under Docket 7533 but “guilty” under
Docket 5228. N.T. 2/18/20 at 9-10.
Moreover, in delivering its final charge, [the trial court] included a
cautionary instruction about the consolidation:
As I instructed you earlier, the defendant is on trial for
two separate cases in which he is alleged to have
committed related offenses on different dates. With
respect to each individual case, you must weigh the
evidence, follow my instructions on the law, and
determine whether the Commonwealth has met its
burden that the defendant is guilty beyond a
reasonable doubt. . . . With respect to each individual
case, you may consider evidence of the other case for
the following purposes: [t]o determine whether the
defendant was acting in conformity with a common
plan, scheme, or design; to assess the credibility of
the complainant; to determine whether the
complainant gave consent; to [] complete the story of
the defendant’s action or the history and development
of these cases.
With respect to each individual case, you should
not consider evidence of the other alleged
sexual assault for any other purpose than for
those that I just stated. You must not regard
this evidence as showing that the defendant is a
person of bad character or criminal tendencies
from which you must be inclined to infer guilt.
N.T. 2/14/20 at 110-11 (emphasis added).
[This court] expressly cautioned the jury not to regard the
evidence as proof that Appellant was a person of bad character or
of criminal tendencies. Id. It is well settled that a jury is
presumed to follow a trial court’s instructions. Commonwealth
v. Cash, 137 A.3d 1262, 1280 (Pa. 2016). Thus, any potential
for unfair prejudice was tempered by [the trial] court’s
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instruction. Moreover, the probative value of the evidence
significantly outweighed its prejudicial impact—especially in light
of the fact that each case relied on circumstantial evidence and/or
uncorroborated testimony of a single witness. . . . .
TCO, at 11-14.
After consideration of the foregoing authority and jurisprudence
discussed, supra, we discern no reason to disturb the trial court’s ruling to
consolidate the two complaints. Importantly, cases need not be identical for
consolidation, see Commonwealth v. Tyson, 119 A.3d 353, 360 n.3 (Pa.
Super. 2015) (en banc) (admitting common plan evidence of sexual assaults
where victims entered the accused’s home under different circumstances),
and the significant similarities between the two cases herein supported their
joinder.
Specifically, the similarities went beyond mere generalities, as each case
comprised allegations of forcible, unwanted sex facilitated by Appellant’s use
of an unexpected and overwhelming physical restraint of a petite, young,
female college student who was, at a minimum, a familiar guest of the
fraternity invited by Appellant into his room. Moreover, the two incidents
occurred within one month’s time during the same school semester, and the
lack of corroborating witnesses only enhanced the probative value of each
case’s facts to the other case. Accordingly, as we concur with the trial court’s
rationale in favor of consolidation, we discern no reason to disturb its ruling
consolidating the two cases below.
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Next, Appellant claims that the trial court abused its discretion by
denying the defense motion to pierce the Rape Shield Law5 with evidence that
R.F. had engaged in consensual sex with a male friend, Brian Trev, at his home
shortly after she allegedly fled from Appellant’s bedroom and left the AEPi
house on the night in question.
The purpose of the Rape Shield Law has been explained, as follows:
To summarize, [the Rape Shield Law] 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.
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).[] 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
____________________________________________
5 18 Pa.C.S.A. § 3104.
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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, 102 L.Ed.2d 513 (1988) (per
curiam); Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105,
1110, 39 L.Ed.2d 347 (1974); Commonwealth v. Williams, 624
Pa. 183, 189, 84 A.3d 680, 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).[]
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, 98 L.Ed.2d 951(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, 89 L.Ed.2d 674 (1986).
...
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.
Commonwealth v. Rogers, 250 A.3d 1209, 1215–17, 1220 (Pa. 2021)
Relying primarily on Commonwealth v. Palmore, 195 A.3d 291(Pa.Super. 2018) (holding Rape Shield Law does not preclude sexual history
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admitted for impeachment or exculpatory purposes), the defense argued at
trial that evidence of R.F.’s encounter with Mr. Trev was relevant and
admissible to impeach R.F.’s credibility about the source of bruising to her
thigh—which she attributed to Appellant’s assaultive actions—and to show her
conduct was inconsistent with having just been sexually assaulted and
traumatized at the AEPi house.
The trial court concluded that R.F.’s unrelated sexual conduct later that
night neither impeached her testimony against Appellant nor tended to
exculpate him. In reaching its decision, the trial court conducted a three-
prong balancing test pursuant to Commonwealth v. Black, 487 A.2d 396(Pa.Super. 1985), which requires trial courts confronted with a motion to
pierce the Rape Shield Law to consider “(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 alternative means of proving bias or motive or to challenge
credibility.” Id. at 401. See also Commonwealth v. Jerdon, 229 A.3d
278, 286 (Pa.Super. 2019) (“Evidence of a claimant’s sexual history may be
admissible if ‘the evidence is relevant to exculpate the accused, more
probative than prejudicial, and non-cumulative in nature.’”).
As to the first prong, the trial court “found no factual or logical nexus
between R.F.’s sexual contact with Mr. Trev and her alleged bias and/or
motivation to fabricate allegations against Appellant.” Trial Court Opinion,
2/5/21 at 19.
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The court thus distinguished the present case from Palmore, in which
the sexual history evidence sought to be introduced related directly to the
defense theory that complainant fabricated her sexual assault claim to
discredit defendant’s report to complainant’s boyfriend that he had seen her
perform oral sex on his roommate. Id. at 298 (observing a reasonable
inference that boyfriend would be less receptive to defendant’s report upon
hearing complainant’s accusation, thus giving defendant’s fabrication theory
a “plausible” and” logically consistent” foundation favoring admissibility of
sexual history evidence). Identifying in Appellant’s motion neither a similar
specific theory to support admission nor a logical link between R.F.’s sexual
history and her accusation here, the trial court found the first prong of the
Black test unmet.
Nor did the second prong inquiry favor admission, the trial court
continued, where the evidence of R.F.’s sexual conduct later that evening had
no probative value to R.F.’s veracity and would have been unfairly prejudicial.
Appellant had argued that the evidence was highly probative because it
presented a plausible alternate cause of her bruising and was conduct
inconsistent with a newly traumatized sexual assault victim.
The trial court disagreed, noting:
The Rape Shield Law is “a bar to admission of testimony of prior
sexual conduct involving a victim, . . . unless it has probative
value which is exculpatory to the defendant.”
Commonwealth v. Johnson, 566 A.2d 1197, 1202 (Pa.Super.
1989), aff’d 638 A.2d 940 (Pa. 1994). Evidence of a victim’s
sexual history is only exculpatory if it “directly negates the act .
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. . with which the defendant is charged.” Commonwealth v.
Beltz, 829 A.2d 680, 684 (Pa.Super. 2003) (citation omitted)
(emphasis added)). If the evidence only shows “that others . . .
had sexual contact with the victim, but does not show how the
evidence would exonerate the defendant, evidence of prior sexual
activity is inadmissible under the Rape Shield Law.” Fink, 791
A.2d at 1242-43 (emphasis added).
...
Appellant argues that evidence of R.F.’s unrelated sexual contact
is exculpatory because it was relevant to show that her bruise
“could have been imposed by [Mr. Trev].” N.T. 3/14/19 at 14;
see also Def. Mot. at 2, July 25, 2019. However, R.F.’s consensual
sexual contact with Mr. Trev is in no way determinative of whether
Appellant engaged in the alleged criminal conduct. Like the
evidence in Beltz, the evidence in the instant case does not
provide a differing account of the same event, such that it can
“directly negate” Appellant’s charges. See Beltz, 829 A.2d at 685[citation omitted]. Rather, Appellant’s proffered evidence
describes an entirely distinct incident and is only relevant to show
that R.F. had physical contact with a person other than Appellant—
a fact which, by itself, does not exonerate him. See id.Further, injury or bruising—although potentially indicative of the
degree of physical force exerted by an assailant—are not elements
of any of the alleged crimes,[] and a lack of injury does not
constitute a defense to any of the same or prove that forceful
physical contact did not occur. Thus, even if evidence of the
complainant’s sexual contact conclusively proved that Appellant
did not cause her bruise, that fact would not “directly negate” or
exculpate him of any charge.
...
Appellant further claims that evidence of R.F.’s consensual
encounter with Mr. Trev was ‘inconsistent with the expected
behavior” of a sexual assault victim. (Def. Mot. at 2, July 25,
2019). . . . In his underlying memorandum, Appellant supported
his argument with the Supreme Court of Pennsylvania’s decision
in Commonwealth v. Killen, 680 A.2d 851 (Pa. 1996).
...
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[Killen] noted the difference between sexual conduct and sexually
suggestive statements and found that the [complainant’s]
statements [directed to a first responder assisting in her transport
to a hospital immediately after her alleged sexual assault at the
hands of a police officer] although sexual in nature, were not
barred by the Rape Shield Law:
The proffered testimony in the case sub judice does
not reference in any way the complainant’s past
sexual conduct as proscribed by § 3104(a); rather,
the statements evidence the complainant’s state
of mind shortly after (and by implication during)
her alleged sexual assault and are therefore
relevant and admissible to impeach her credibility.
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
alleged criminal activity takes place. The fact that
statements are sexually provocative in content does
not automatically bring them within the protective
purview of the Rape Shield Law.
Id. at 854 (emphasis added).
There are critical differences between Killen and the case at bar.
Most notably, the proffered evidence in the case sub judice
directly references the complainant’s past sexual conduct—
not mere statements—as expressly proscribed by §
3104(a). Further, the evidence in Killen, provided a plausible,
logical nexus between the proffered testimony and the
defendant’s allegation of victim fabrication; the evidence,
therefore, was relevant to attack the complainant’s credibility.
See id. As this court explained herein, Appellant’s claim of
fabrication is not similarly tethered to plausibility or logic.
Moreover, the Killen court found that the victim’s statements,
given shortly after the incident, were relevant to the “ongoing
episode” of alleged assault. Here, R.F.’s subsequent sexual
contact is a completely disconnected event. It is not a part of the
alleged episode of criminal activity, and it is therefore not relevant
to show her “state of mind shortly after (and by implication
during) her alleged sexual assault,” as contemplated by Killen.
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A more timely and analogous account of R.F.’s state of mind
during the “ongoing episode” of alleged criminal activity can be
inferred from the testimony of Casey Miller (“Miller”). At trial,
Miller explained R.F.’s demeanor immediately after she left
Appellant’s bedroom, explaining that the complainant looked
“extremely frightened.” N.T. 2/13/20 at 73. Miller further stated,
“[R.F.’s] eyes were big like she just saw a ghost. She looked
terrorized and like she just wanted to get out of there.” Id. When
Miller asked R.F. is she was okay, she said, “no” and told Miller
that Appellant had hurt her. Id.
Thus, as the proposed evidence describes an entirely distinct
incident, it is irrelevant to demonstrate R.F.’s state of mind or
attack on her credibility on this ground.
...
Finally, . . . the proposed evidence is profoundly prejudicial to the
complainant, and this court justly excluded it.
Appellant’s justification for piercing the Rape Shield is grounded
in the exact type of misleading, chastity-based moral derision that
the Rape Shield Law seeks to prevent. [The trial court opinion
then catalogues numerous passages in Appellant’s argument in
which he contends the complainant’s story is not believable
because her decision to engage in sexual activity later that
evening was “inconsistent with the expected behavior of a person
who has alleged to have been the victim of violent sexual
assault[.]”].
...
Appellant evidently wanted the jury to conclude that hours after
the alleged assault, R.F. failed to present—what he considers to
be—a satisfactory display of emotional trauma, and any victim
who does not behave according to his (or perhaps society’s)
“expectations” must be lying.
...
In essence, Appellant intended to foster a single impermissible
inference—namely, that a complainant’s credibility can be
determined by nosing through and appraising her sexual history.
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The Rape Shield Law is specifically designed to prevent such an
unacceptable result. See Burns, 988 A.2d at 689.
TCO at 24-28.
Finally, consistent with the third prong of the Black test, the trial court
conducted an inquiry into the availability of alternative means of proving
complainant’s bias or motive, or of challenging her credibility. See Black,
487 A.2d at 401. It concluded that excluding Appellant’s proposed evidence
as required under the Rape Shield Law did not prevent Appellant’s ability to
challenge R.F.’s credibility through lawful means such as offering relevant and
material evidence to undermine her disposition for truthfulness, to show her
bias, interest, or corruption, to prove defects in her perception or recollection,
and to contradict her testimony.
In this vein, the court noted that Appellant’s cross-examination of R.F.
was permitted to underscore inconsistencies between her preliminary hearing
testimony and trial testimony and to challenge her ability to recollect events
accurately given the amount of alcohol she drank, relative to her size, on the
night in question.
Our review of the record in light of pertinent authority leads us to
conclude that the trial court excluded evidence of R.F.’s past sexual conduct
with Mr. Trev in harmony with established precedent and, thus, did not violate
Appellant’s sixth amendment rights to confrontation and cross-examination.
Accordingly, we reject Appellant’s challenge to the court’s exclusion of
evidence under the Rape Shield Law.
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In Appellant’s third issue, he contends that the trial court improperly
limited the scope of his cross-examination of R.F. regarding her activities after
leaving the frat house. Specifically, R.F. testified she left alone by Uber ride
at 1:30 a.m., despite having attended the frat party with her female friend
Casey Miller. Defense counsel then asked R.F. to confirm that the Uber took
her somewhere other than her own home, but the trial court sustained the
Commonwealth’s relevance-based objection grounded, again, in the Rape
Shield Law.
Not to be deterred by the court’s ruling, defense counsel still implied
that R.F. may have engaged in sexual conduct in the relevant time frame when
he asked R.F., “Well, you actually -- I’m talking about sex now. I’m just asking
a question. You actually could have gotten this bruise from someone else
right?” N.T. at 205. The court, again, sustained the Commonwealth’s
objection for lack of relevance. Counsel then followed by asking R.F. to
confirm that when she woke up the next morning and saw the bruise on her
leg, she was not home. Id. When the court sustained the objection to that
question, counsel asked, “Well, when was the next time you were back in your
– where you lived?”, to which the same objection was sustained. Id.Our Supreme Court has recognized that “[t]he Sixth
Amendment guarantees criminal defendants the right to confront
and cross-examine adverse witnesses” in order “to ensure a fair
and reliable trial.” Commonwealth v. Laird, 605 Pa. 137, 988
A.2d 618, 630 (2010); U.S. Const. amend. VI (additional citations
omitted). “Cross-examination may be employed to test a witness'
story, to impeach credibility, and to establish a witness's motive
for testifying.” Commonwealth v. Ballard, 622 Pa. 177, 80 A.3d
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380, 394 (2013) (quoting Commonwealth v. Chmiel, 585 Pa.
547, 889 A.2d 501, 527 (2005) (citation omitted)). “A trial court
has discretion to determine both the scope and the permissible
limits of cross-examination. The trial judge's exercise of judgment
in setting those limits will not be reversed in the absence of a clear
abuse of that discretion, or an error of law. Commonwealth v.
Briggs, 608 Pa. 430, 12 A.3d 291, 335 (2011) (quotations and
citations omitted).
Commonwealth v. Woeber, 2017 PA Super 353, 174 A.3d 1096, 1103
(2017).
The gist of Appellant’s claim is that questions put to R.F. and Ms. Miller
asking of R.F.’s whereabouts after she left the frat house had the purpose of
revealing to the jury “R.F.’s state of mind in view of her involvement with this
other male immediately after the alleged incident.” Brief of Appellant at 40.
Appellant draws a parallel to the evidence introduced in J.L.’s case, where the
Commonwealth elected to present testimony of a male friend who informed
the jury that J.L. spent a comforting, platonic night in bed with him after her
assault. Just as the jury rejected the Commonwealth’s prosecution of the J.L.
case, Appellant reasons, so too may it have rejected the R.F. case had it
learned of her subsequent behavior with Mr. Trev, which Appellant maintains
was inconsistent with the expected behavior of a sexual assault victim.
Despite Appellant’s attempt to distinguish this issue from the previous
one challenging the court’s application of the Rape Shield Law to exclude R.F.’s
activity with Mr. Trev, we perceive no meaningful distinction that would place
this subject matter outside the scope of the Rape Shield Law. Appellant
argues that R.F.’s state of mind immediately after the alleged incident was
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highly probative to assessing the credibility of her accusation, but he sought
to reveal her state of mind by reference to the very encounter with Mr. Trev
which the trial court had properly excluded pursuant to the Rape Shield Law.
The objection to Appellant’s cross-examination of R.F. on this point, therefore,
was properly sustained.
Furthermore, testimony regarding J.L.’s nonsexual night with her male
friend did not implicate the Rape Shield Law and, thus, its admission into
evidence had no bearing on the admissibility of R.F.’s encounter with Mr. Trev.
As Appellant presents no argument or relevant decisional law to support his
conclusion to the contrary, we find this claim meritless.
Appellant’s fourth claim goes to the sufficiency of the evidence offered
to prove attempted involuntary deviate sexual intercourse and attempted
sexual assault. The standard of review for a challenge to the sufficiency of
the evidence is well settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
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considered. Finally, the [trier] of fact while passing upon the
credibility of the witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted).
A conviction of IDSI requires proof that the defendant engaged in
“deviate sexual intercourse” with the complainant “by forcible compulsion.”
18 Pa.C.S. § 3123(a)(1). Deviate sexual intercourse is defined as:
Sexual intercourse per os or per anus between human beings ....
The term also includes penetration, however slight, of the genitals
or anus of another person with a foreign object for any purpose
other than good faith medical, hygienic or law enforcement
procedures.
18 Pa.C.S. § 3101. A defendant commits the lesser included offense of sexual
assault if he “engages in sexual intercourse or deviate sexual intercourse with
a complainant without the complainant's consent.” 18 Pa.C.S. § 3124.1.
Section 901 of the Crimes Code provides the following definition of
“criminal attempt”: A person commits an attempt when, with intent to commit
a specific crime, he does any act which constitutes a substantial step toward
the commission of that crime. 18 Pa.C.S.A. § 901(a). “The elements of
criminal attempt are: (1) an intent to commit a specific crime; and (2) any
act constituting a substantial step toward the commission of that crime.”
Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa. Super. 2003). “The
substantial step test broadens the scope of attempt liability by concentrating
on the acts the defendant has done and does not any longer focus on the acts
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remaining to be done before the actual commission of the crime.” Id. (citation
omitted).
Appellant contends that even if one accepts as true R.F.’s testimony
regarding Appellant’s conduct, such evidence may have established his intent
to commit the acts for which he was charged, but it still failed to prove beyond
a reasonable doubt that he took a substantial step towards such commission.
Because R.F. admitted that Appellant was still wearing pants when he thrust
his hips up towards her while pulling her head down toward his crotch and
saying, “give me head,” Appellant maintains he did not take a substantial step
toward the commission of the crimes for which he was convicted.
The trial court opines that the fact Appellant remained dressed at the
time he forced himself on R.F. was not an impediment to a conviction for
attempted IDSI and attempted sexual assault, for which no degree of
penetration is necessary. Additionally, the court cites to decisional law where
circumstantial evidence lacking exposure still sufficed to prove the substantial
step element. See Commonwealth v. Pasley, 743 A.2d 521, 524 (Pa.Super.
1999) (affirming conviction for attempted sexual assault where evidence that
defendant “threw the victim on his bed, straddled her, pushed up her shirt
and bra to her neck, and attempted to unbutton her pants[,]” relenting only
when the victim scratched and punched him proved beyond a reasonable
doubt that he had taken a substantial step towards committing the crime);
Commonwealth v. Bullock, 393 A.2d 921, 923 (Pa.Super. 1978)
(substantial step towards IDSI by was demonstrated by evidence that a
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defendant engaged in sexually illicit internet communications with a purported
minor, planned to meet her the next day, indicated he would teach her oral
sex when they met, and arrived at the prearranged location with condoms in
his vehicle).
The trial court states similar circumstantial evidence that Appellant lured
R.F. into his room on false pretenses, exploited his physical advantage to
restrain her in order to initiate unwanted sex, and commanded her to undo
his belt and perform oral sex until she broke free and kicked him supported
the jury’s guilty verdicts:
R.F. testified that Appellant pinned her on her back, straddled her,
pushed his knee into her thigh, and held her hands above her
head. N.T. at 147-48. Once she could not move, Appellant kissed
her and partially removed her shirt and bra, thereby exposing her
left breast. N.T. at 152. He then “push[ed] [her] head towards
his crotch . . . . [as] he was thrusting his hips in [her] face. Id.Meanwhile, Appellant “grabb[ed]” at his belt and motion[ed] to
[her] to unbuckle his belt.” N.T. at 154. R.F. testified that
Appellant continued to “buck[] his hips” toward her face and “kept
telling [her]” that he wanted her to “do it.” N.T. at 198.
On cross-examination, [R.F.] testified that Appellant did not
expose his penis or manage to unzip his pants or undo his belt.
N.T. at 198. However, R.F. explained that during the incident,
Appellant explicitly commanded her to “give [him] head[.”]
...
These facts are more than sufficient to sustain Appellant’s
convictions for attempted sexual assault and attempted IDSI by
forcible compulsion. The most sensible inference that can be
drawn from R.F.’s testimony (construed in favor of the
Commonwealth as verdict winner) is that Appellant tried to force
R.F. to give him oral sex, despite the obvious fact that she did not
want to. In other words, Appellant specifically intended to engage
in deviate sexual intercourse with the complainant. Moreover, it
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was perfectly reasonable for members of the jury to conclude that
by restraining the victim, ignoring her pleas to “stop,” pushing his
groin towards her face, forcing her head towards his penis,
motioning to his belt buckle, and repeatedly demanding that she
“do it,” Appellant had taken a substantial step towards engaging
in deviate sexual intercourse with the complainant. There is no
other reasonable interpretation of such behavior.
Further, Appellant’s actions were facilitated by his superior
strength and protracted use of physical force. The fact that she
begged him to stop and “thrashed” her body as she tried to break
free clearly demonstrates that she did not consent to the
encounter.
In fact, Appellant did not stop until she managed to free her leg
and kick him. N.T. at 156. Thus, the elements of physical
compulsion and lack of consent are also satisfied. See Eckrote,
12 A.3d at 387 (“[T]he Commonwealth must establish, beyond a
reasonable doubt, that the defendant ‘used either physical force,
a threat of physical force, or psychological coercion’ [to prove the
element of forcible compulsion.]”).
TCO at 38-40.
As we concur with the trial court’s rationale, we conclude that
Appellant’s challenge to the sufficiency of the evidence is devoid of merit.
In Appellant’s final issue, he argues that the second iteration of
Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA
II”)6 may not be constitutionally applied in his case because it violates ex post
facto laws as well as his rights to due process of law.
____________________________________________
6In Commonwealth v. Mickley, 240 A.3d 957 (Pa.Super. 2020), this Court
summarized the origins and iterations of SORNA, as follows:
SORNA was originally enacted on December 20, 2011, effective
December 20, 2012. See Act of Dec. 20, 2011, P.L. 446, No. 111,
§ 12, effective in one year or Dec. 20, 2012 (Act 11 of 2011). Act
(Footnote Continued Next Page)
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“[T]he constitutionality of a statute presents a pure question of law.
Therefore, our standard of review is de novo and scope of review is plenary.”
____________________________________________
11 was amended on July 5, 2012, also effective December 20,
2012, see Act of July 5, 2012, P.L. 880, No. 91, effective Dec. 20,
2012 (Act 91 of 2012), and amended on February 21, 2018,
effective immediately, known as Act 10 of 2018, see Act of Feb.
21, 2018, P.L. 27, No. 10, §§ 1-20, effective Feb. 21, 2018 (Act
10 of 2018), and, lastly, reenacted and amended on June 12,
2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29
of 2018). Acts 10 and 29 of 2018 are generally referred to
collectively as SORNA II. As our Supreme Court recently
explained in Commonwealth v. Torsilieri, ––– Pa. ––––, 232
A.3d 567 (2020),
Act 10 split SORNA, which was previously designated
in the Sentencing Code as Subchapter H, into two
subchapters. Revised Subchapter H applies to crimes
committed on or after December 20, 2012, whereas
Subchapter I applies to crimes committed after April
22, 1996, but before December 20, 2012. In essence,
Revised Subchapter H retained many of the provisions
of SORNA, while Subchapter I imposed arguably less
onerous requirements on those who committed
offenses prior to December 20, 2012, in an attempt to
address this Court's conclusion in [Commonwealth
v.] Muniz[, 640 Pa. 699, 164 A.3d 1189 (2017)] that
application of the original provisions of SORNA to
these offenders constituted an ex post facto violation.
Id. at 580 (emphasis added). Subchapter I was designed to
ensure that those required to retroactively register under
SORNA—and therefore entitled to relief following Muniz—will still
have to do so
Mickley, 240 A.3d at 958. The Mickley court noted that because the
defendant Mickley was convicted of offenses committed after December 20,
2012, Subchapter H applies and ex post facto principles have no application
to his sentence. The Torsilieri Court refers to Subchapter H as Revised
Subchapter H.
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Commonwealth v. Wade, 33 A.3d 108, 115-16 (Pa. Super. 2011) (citation
omitted). In addressing constitutional challenges to legislative enactments,
we are mindful that:
the General Assembly may enact laws which impinge on
constitutional rights to protect the health, safety, and welfare of
society, but also that any restriction is subject to judicial review
to protect the constitutional rights of all citizens. We emphasize
that a party challenging a statute must meet the high burden of
demonstrating that the statute clearly, palpably, and plainly
violates the Constitution.
Torsilieri, 232 A.3d at 575 (citations and internal quotation marks omitted).
While we adopt the trial court’s opinion disposing of this issue, we make
several observations. Initially, with regard to Appellant’s ex post facto claim,
it is undisputed that the reporting requirements applicable to a Subsection H
offender like Appellant under Act 10, which was in effect at the time he
committed his offenses, were retained in relevant, substantive part—with
minor modification—several months later with the enactment of Act 29.
Because Appellant fails to specify what changes substantively affected his
registration requirements, let alone explain how they constituted additional
punishment, he is entitled to no relief on this claim.
Appellant’s due process challenge to the application of SORNA II to his
case asserts that Subchapter H fails to individualize the assessment of
dangerousness and instead applies an unconstitutional presumption of future
dangerousness to all sexual offenders subject to lifetime registration.
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Appellant, however, inadequately developed this issue both at sentencing and
in the present appeal.
At Appellant’s sentencing, defense counsel unilaterally elected to raise
an oral motion for reconsideration of sentence in lieu of filing a written motion
and requesting a hearing on the issues raised. His oral motion was confined
to two discernable issues, namely, that application of SORNA II, Subchapter
H to Appellant’s case violated ex post facto laws (addressed supra) and
violates due process rights by presuming future dangerousness without any
individualized assessment that he will, in fact, pose a danger presently or for
the entirety of his life.
As to the latter claim, the entirety of defense counsel’s position was as
follows:
Defense Counsel: [T]his court is not given the opportunity to
have individualized determination that this defendant is worthy of
being—that suffering a lifetime of supervision and probation under
Megan’s Law. There is no determination that he’s dangerous or
that he will be dangerous for the entire future of his lifetime.
And, . . . the presumption of future dangerousness, which is found
in Subchapter H of Megan’s Law, would violate due process of law.
The only statute [under] which he can be compelled to register
today is SORNA II, and that statute would be unconstitutional in
its application. And we wish to put that on the record.
N.T. 10/21/20, at 70-72.
Recently, a decision of this Court provided a salient discussion of the
significance of Torsilieri and its admonition on the importance of presenting
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scientific evidence and research as part of a challenge against SORNA’s
presumption of future dangerousness:
The Torsilieri Court addressed the constitutionality of Revised
Subchapter H of SORNA, which applies to individuals who commit
an offense after December 20, 2012.
...
In Torsilieri, the defendant challenged his registration
requirements under Subchapter H in post-sentence proceedings.
The trial court permitted the defendant “to introduce affidavits and
supporting documents of three experts concluding that sexual
offenders generally have low recidivism rates and questioning the
effectiveness of sexual offender registration systems such as
SORNA.” Id., at 574. After reviewing this evidence, the court
found Subchapter H to be unconstitutional based on a myriad of
theories, including that the registration and notification provisions
of Subchapter H violated the defendant's “right to due process by
impairing his right to reputation, as protected by the Pennsylvania
Constitution, through the utilization of an irrebuttable
presumption.” Id., at 574-575. The Commonwealth appealed.
As mentioned in Torsilieri, “the test for an unconstitutional
irrebuttable presumption requires three factors: (1) the existence
of a presumption that impacts an interest protected by the due
process clause; (2) a presumption that is not universally true; and
(3) the existence of reasonable alternatives to ascertain the
presumed fact.” Id., at 586 (citation and quotation marks
omitted). There, the Court noted that a “review of the [trial]
court’s conclusions clearly reveals that the court’s analysis of each
of the three prongs of the irrebuttable presumption doctrine relies
heavily upon the scientific evidence presented by [the
defendant].” Id.
As a result, the Torsilieri Court vacated the court’s order which
found Subchapter H to be unconstitutional. The Court declined to
reach the constitutional challenge, but rather, held the record
needed to be developed further based on following:
Given the procedures leading to this point, the
importance of the underlying issue, and our deference
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to legislative policy determinations, we decline to
render a conclusion on the basis of the record before
us. Instead, we conclude that remand is necessary to
allow the parties to present additional argument and
evidence to address whether a scientific consensus
has developed to overturn the legislative
determinations in regard to adult sexual offenders’
recidivation rates and the effectiveness of a tier-based
registration and notification system as they relate to
the prongs of the irrebuttable presumption doctrine.
Id., at 587-588 (citation omitted).
The Court further emphasized the following principles:
[W]e emphasize that all cases are evaluated on the
record created in the individual case. Thus, a court
need not ignore new scientific evidence merely
because a litigant in a prior case provided less
convincing evidence. Indeed, this Court will not turn
a blind eye to the development of scientific research,
especially where such evidence would demonstrate
infringement of constitutional rights.
Nevertheless, we also emphasize that it will be the
rare situation where a court would reevaluate a
legislative policy determination, which can only
be justified in a case involving the infringement
of constitutional rights and a consensus of
scientific evidence undermining the legislative
determination. We reiterate that while courts are
empowered to enforce constitutional rights, they
should remain mindful that the wisdom of a public
policy is one for the legislature, and the General
Assembly's enactments are entitled to a strong
presumption of constitutionality rebuttable only by a
demonstration that they clearly, plainly, and palpably
violate constitutional requirements.
Id., at 595-596 (citation and quotation marks omitted).
Subsequently, in Commonwealth v. Asher, 244 A.3d 27 (Pa.
Super. 2020), a panel of this Court addressed a similar Subchapter
H challenge. There, even though the appellant properly preserved
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the issue at sentencing and in his post-sentence motion, there was
no factual record because the trial court did not conduct an
evidentiary hearing. The appellant's post-sentence motion
was denied by operation of law. The Asher Court, in
accordance with Torsilieri, vacated and remanded the matter “for
a hearing at which the parties can present evidence for and
against the relevant legislative determinations discussed above.”
Id., at 33 (citation omitted).
Turning to the present matter, in Elgaafary's post-sentence
motion, he sought to modify his sentence based on the argument
that SORNA's “internet notification provisions infringe[d] on [his]
right to reputation without due process, and SORNA create[d] an
irrebuttable presumption that all sex offenders pose a high risk of
reoffending.” Defendant's Post-Sentence Motions Filed Pursuant
to Pa.R.Crim.P. 720, 12/27/2019, at ¶ 8. He did not reference
any studies or research to support his position. However,
he did attach a proposed order to his post-sentence motion
requesting a hearing. The trial court refused to entertain
his request when the motion was denied by operation of
law.
This Court has previously found waiver where an appellant did not
raise a Torsilieri unconstitutional irrebuttable presumption
argument with the trial court but rather, presented the claim for
the first time on appeal. See Commonwealth v. Reslink, –––
A.3d ––––, 2020 PA Super 289, 2020 WL 7415959 (Pa. Super.
Dec. 18, 2020) (holding defendant waived his claim that Revised
Subchapter H was based on an unconstitutional irrebuttable
presumption by failing to raise it at sentencing or in a post-
sentence motion).7 We decline to find waiver based on the
circumstances of this case. Elgaafary set forth a colorable
constitutional challenge, albeit in general terms, in his
post-sentence motion.8 Moreover, at the time Elgaafary
filed his post-sentence motion, Torsilieri had not been
decided, and the relevant caselaw at the time was in flux.
Accordingly, we conclude Elgaafary properly preserved the
argument.
Furthermore, because the court did not conduct a hearing,
there is no factual record on which we can evaluate
Elgaafary's SORNA irrebuttable presumption argument.
Therefore, in accordance with Torsilieri and Asher, we vacate
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the order denying Elgaafary's post-sentence motion, and remand
for an evidentiary hearing.
Commonwealth v. Elgaafary, No. 1178 EDA 2020, 2021 WL 4740958, at
*7–9 (Pa. Super. Ct. Oct. 12, 2021) (emphasis added).7
In the case sub judice, defense counsel did raise the issue, albeit in
general terms and summary fashion, when he opted to offer only an oral
motion at the sentencing hearing. Therefore, we decline to apply waiver
doctrine as was done in Reslink, where the issue was raised for the first time
on appeal.
However, unlike in Elgaafary and Asher, where the relevant law was
in flux at the time those defendants prepared their respective post-sentence
motions, Pa.R.A.P. 1925(b) statements, and appellate briefs, Appellant’s
sentencing hearing took place three months after the Torsilieri decision
offered guidance to defense counsel that legislation will be reviewed where
constitutional infringement is shown by a consensus of scientific evidence
undermining the legislative policy.
Yet, despite such guidance from our Supreme Court, defense counsel
offered no scientific evidence before the trial court to support his contention
that the SORNA II lifetime registration relies on an unconstitutional general
presumption of lifelong dangerousness. Instead, he elected to declare at the
sentencing hearing that he would offer only an oral motion—and thus forego
____________________________________________
7Pursuant to Pa.R.A.P. 126(b)(2) (effective May 1, 2019): “Non-precedential
decisions ... may be cited for their persuasive value.”
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preparing a written motion and seeking a hearing—which raised the present
issue generally in a single sentence. Similarly, Appellant’s appeal likewise fails
to include any presentation or discussion of scientific evidence.
Therefore, because Appellant offered merely a bare assertion against
SORNA II’s legislative policy regarding lifetime registration despite having the
benefit of Torsilieri’s guidance three months prior to sentencing and nearly
eight months prior to filing his brief in the present appeal, we decline to
remand this matter to allow Appellant to develop the record on the issue of
SORNA II’s irrebuttable presumption on future dangerousness.
For the foregoing reasons, we affirm.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2021
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