Com. v. K.S.F.

J-A15029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
K.S.F.
Appellant No. 3211 EDA 2013
Appeal from the Order Entered October 28, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003335-2010
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 12, 2014
K.S.F. appeals from the order entered in the Court of Common Pleas of
for an in camera hearing to determine admissibility of a Facebook post by
careful review, we reverse and remand for a new trial.
In August 2011, a jury convicted K.S.F. of the following sexual crimes
against Stepdaughter: four counts of involuntary deviate sexual intercourse
with a child;1 three counts of involuntary deviate sexual intercourse -
complainant less than 16 years of age;2 four counts of statutory sexual
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1
18 Pa.C.S. § 3123 (b).
2
18 Pa.C.S. § 3123 (a)(7).
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assault;3 five counts of indecent assault - complainant less than 13 years of
age;4 three counts of indecent assault - complainant less than 16 years of
age;5 and one count of corruption of a minor.6 Prior to trial, K.S.F. filed a
website Facebook. K.S.F. alleged one of
settings. The trial court ruled the evidence inadmissible, stating:
within the ambit of the Rape Shield Law and that a teenage girl
her Stepfather[,] was a self-characterization that did not have
significant enough probative value as to the credibility of her
claimed abuse by [K.S.F.] to overcome the Rape Shield Law
barrier.
Trial Court Opinion on Remand, 10/28/13, at 5. See also Trial Court
Opinion, 7/13/12, at 8-13; 18 Pa.C.S. § 3104.
Following his conviction, the court determined K.S.F. to be a sexually
incarceration. On direct appeal, this Court vacated and remanded,
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3
18 Pa.C.S. § 3122.1.
4
18 Pa.C.S. § 3126(a)(7).
5
18 Pa.C.S. § 3126(a)(8).
6
18 Pa.C.S. § 6301(a)(1).
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instructing the trial court to hold an in camera hearing and apply the three-
prong balancing test outlined in Commonwealth v. Black, 487 A.2d 396,
401 (Pa. Super. 1985), after which the trial court could grant a new trial or
reinstate the judgment of sentence. See Commonwealth v. K.S.F., 2497
EDA 2011, slip op. at 20-26 (Pa. Super., filed April 12, 2013).
The trial court held an in camera Black hearing on June 26, 2013.
Stepdaughter testified that when she wrote on Facebook that she had never
had sex before, she meant she had never had consensual sex. The trial
court subsequently reinstated the judgment of sentence, and K.S.F. filed this
appeal.
K.S.F. raises four issues for our review:
1. Whether the statement made by Stepdaughter that she
r to
trial but subsequent to allegedly being forced to have sex
with K.S.F. should have been admissible for impeachment
purposes?
2. Whether the trial court erred in determining that
Amendment right to present a defense, especially in light
of the fact that Stepdaughter posted a statement on
Facebook for a large number of people to see?
3. Whether the trial court invaded the province of the jury by
determining the meaning of the Facebook post, failed to
consider the entire context of the statement, and erred in
ruling that the statement was unfairly prejudicial?
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4. Whether the Commonwealth violated Brady v. Maryland,
373 U.S. 479 (1984),7 by not disclosing the Facebook note
to K.S.F. prior to trial?
The first three claims all speak to the issue of whether the trial court
abused its discretion in determining the admissibility of the Facebook posting
at the Black hearing. We will therefore proceed with a discussion of the trial
-factor Black test. As our disposition of this
case has the same effect as a successful Brady challenge, we need not
Brady.
sexual conduct is as follows:
sexual history of a sexual abuse complainant will be reversed
only where there has been a clear abuse of discretion. An abuse
of discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence or
the record, discretion is abused.
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7
In Brady
the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment
Brady, 373
U.S. at 87. A Brady violation occurs when: (1) the prosecutor has
suppressed evidence; (2) the evidence, whether exculpatory or impeaching,
is helpful to the defendant; and (3) the suppression prejudiced the
defendant. See Commonwealth v. Paddy, 800 A.2d 294, 305 (Pa. 2002);
see also Pa.R.Crim.P. 573.
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Commonwealth v. Holder, 815 A.2d 1115, 1118 (Pa. Super. 2003) (citing
Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa. Super. 1998))
(citations and quotations omitted).
The Rape Shield Law provides as follows:
(a) General rule. Evidence of specific instances of the alleged
prosecutions under this chapter except evidence of the alleged
the alleged victim is at issue and such evidence is otherwise
admissible pursuant to the rules of evidence.
18 Pa.C.S. § 3104(a). Although the literal language of the Rape Shield Law
would appear to bar a wide range of evidence, courts have interpreted the
statute to yield to certain constitutional considerations implicating the rights
of the accused. See, e.g., Commonwealth v. Riley, 643 A.2d 1090, 1093
(Pa. Super. 1994) (right to cross-examine witnesses).
inadmissible because of the Rape Shield Law. Black, 487 A.2d at 401.
When determining the admissibility of evidence that the Rape Shield Law
may bar, trial courts hold an in camera hearing and conduct a balancing test
relevant to show bias or motive or to attack credibility; (2) whether the
probative value of the evidence outweighs its prejudicial effect; and (3)
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whether there are alternative means of proving bias or motive or to
Id.
Here, it is not disputed that the relevancy prong from Black was
satisfied. See Trial Court Opinion on Remand, 10/28/13, at 7-8. However,
the trial court erred as a matter of law in weighing the probative value of the
evidence against the prejudice of its admission.
In Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992), our
g evidence cannot be mechanistically
applied to abridge a defendant's right of confrontation by denying admission
Id. at 701.
There, the defendant was accused of having sexual relations with his
underage stepdaughter. Although defendant admitted to the relationship
after the victim had turned sixteen, he denied that it existed before that
date. The trial court would not permit the defendant to cross-examine the
victim about a statement in which she earlier said she had had one sexual
identified as a friend of her stepfather. The Supreme Court reversed,
holding that the testimony was admissible for the purpose of impeachment.
right to confront his accusers as well as his right to a fair trial through cross-
examination.
In Commonwealth v. Johnson, 566 A.2d 1197 (Pa. Super. 1989),
the Rape Shield Law is a bar to admission of testimony of
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prior sexual conduct involving a victim, . . . unless it has probative value
Id. at 1202. Here, the trial court
devotes substantial discussion to considering the meaning of the Facebook
posting and the potential prejudice to Stepdaughter, but fails to grasp fully
the probative value of the evidence sought to be admitted. The trial court
[Stepdaug
11. The trial court fails to address the fact that were K.S.F. able to convince
would be seriously undermined. Accordingly, the probative value of a prior
inconsistent statement in which Stepdaughter purports to deny prior sexual
conduct is critical.
Facebook posting would prejudice her is not consistent with the express
purpose of the Rape Shield Law, nor with the Black test. 487 A.2d at 401.
focus from the culpability of the accused toward the virtue and chastity of
the victim . . . [and] to exclude irrelevant and abusive inquiries regarding
Commonwealth v.
Burns, 988 A.2d 684, 689 (Pa. Super. 2009); see also Commonwealth v.
Northrip, 945 A.2d 198, 205 (Pa. Super. 2008) (finding no prejudice where
evidence did not attack reputation for chastity in way section 3104 designed
to protect). The Black
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prob
Commonwealth v. Stewart, 450 A.2d 732, 734 (Pa. Super. 1982))
(quotation marks omitted). A statement in which a victim claims to be a
virgin cannot reasonably be understood to prejudice her by smearing her
reputation for virtue and chastity, nor is it inflammatory.8 On the other
hand, the potential exculpatory value of the statement, as discussed above,
is substantial.
In addition, the trial court erred in determining that the Facebook
purpose of [an in camera] hearing required by the Rape Shield Law is to
enable a trial court to determine whether tendered defense evidence of the
Commonwealth
v. Baronner, 471 A.2d 104, 106 (Pa. Super. 1984). The trial court is not to
use the hearing to assess the credibility of the evidence sought to be
admitted. Id. Credibility determinations are to be made by the jury. Id.
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8
K.S.F. devotes significant space in his brief on the issue of whether
Stepdaughter would be prejudiced by an invasion of her privacy rights were
the Facebook posting admitted. We fail to see the relevance of her general
right to privacy in this context. The Rape Shield Law was passed to prevent
a specific class of attacks against the character of victims in rape
prosecutions. It is not a bar against the admission of relevant evidence, the
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mean that she had never had consensual sex. This is, in fact, the way
Stepdaughter explained the Facebook posting at the Black hearing. N.T.
Hearing, 6/26/13, at 12. However, the Facebook posting could also be
interpreted to mean that she had never had any sex, including with K.S.F.
determination that should properly have been put before a jury. See
Baronner, 471 A.2d at 106. For these reasons, the trial court abused its
discretion in determining that the prejudice to Stepdaughter outweighed its
probative value.
The third prong of the Black test requires a consideration of
alternative means to impeach
scant on instances that have explored this factor in depth, however, several
cases are instructive. In Commonwealth v. Weber, 675 A.2d 295, 302
(Pa. Super. 1996), 701 A.2d 531 (Pa. 1997), this
Court found that the third prong was not satisfied where the evidence sought
to be admitted only added to a short list of evidence that tended to attack
Weber Court admitted the evidence, however,
because it also ten Id. In
Commonwealth v. Killen, 680 A.2d 851, 854 (Pa. 1996), our Supreme
Court held that suggestive statements made by the victim shortly after the
alleged sexual assault, in which she appeared jovial, were admissible, not to
show her promiscuous demeanor, but to undermine the credibility of her
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claims that she had been sexually assaulted. The court noted that this
evidence did not speak to past behavior, but directly to the crime charged,
and therefore was not barred by the Rape Shield Law. Id.
Here, the trial court determined that K.S.F. had adequate opportunity
credibility. Trial Court Opinion on Remand, 10/18/13, at 12; see also
Weber, 675 A.2d at 302. However, nothing was quite as poignant as
of the prosecution in fact may never have occurred. See Killen, 680 A.2d
at 854 (sexual statements relating directly to the alleged assault
admissible). This calls into question whether the trial court fully considered
the value of this specific piece of evidence in the context of the final prong.
The Black test is a balancing test. It is undisputed that the first prong
has been satisfied, and we find that the trial court has abused its discretion
in determining the second and third prongs. The balance undeniably weighs
in favor of admission of the Facebook posting.
Having concluded the trial court abused its discretion in its application
of the test, we reverse the judgment of sentence and remand for a new trial.
Reversed and remanded for new trial. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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