Com. v. Pugh, R.

J-E01005-14 2014 PA Super 221 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT MICHAEL PUGH, Appellant No. 343 EDA 2012 Appeal from the Judgment of Sentence entered December 19, 2011 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000303-2010. BEFORE: GANTMAN, P.J., FORD ELLIOT, P.J.E., BENDER, P.J.E., PANELLA, DONOHUE, ALLEN, LAZARUS, MUNDY AND OLSON, JJ. CONCURRING OPINION BY OLSON, J.: FILED OCTOBER 07, 2014 with respect Therefore, I write separately. In his second issue on appeal, Appellant contends that the trial court 1 Specifically, Appellant arg that she was a virgin when that representation could not have been true The learned 1 At times, Alverio is identified as Rocky Alverio; however, his name is Raziel Alverio. See N.T., 9/15/11, at 3. J-E01005-14 See Majority Opinion, ante at 8-9. However, I do not believe that the Rape Shield Law is applicable in this case. The Rape Shield Law provides that: sexual conduct shall not be admissible in prosecutions under this conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence. word conduct does not include prior sexual assaults and that evidence of prior sexual assaults is admissible as long as such evidence is relevant and material u Commonwealth v. Fink, 791 A.2d 1235, 1241 (Pa. Super. 2002) (emphasis added; internal quotation marks and footnote omitted), citing Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994); see Commonwealth v. Holder, 815 A.2d 1115, 1118-1119 (Pa. Super. 2003), appeal denied, 827 A.2d 430 (Pa. 2003) (citation omitted); Commonwealth v. L.N., 787 A.2d 1064, 1069 (Pa. Super. 2001), appeal denied, 800 A.2d 931 (Pa. 2002) (citation omitted). In this case, any sexual contact between Alverio and S.P. was a sexual assault -2- J-E01005-14 as S.P. had yet to reach the age of consent.2 See 18 Pa.C.S.A. § 3122.1 (age of consent in Pennsylvania is 16); Commonwealth v. Slocum, 86 A.3d 272, 283 n.3 (Pa. Super. 2014) (same). Accordingly, evidence of protected by the Rape Shield Law, and, therefore, the Rape Shield Law does not apply to this case. Shield Law was misplaced, its ultimate conclusion to bar further examination of Alverio medical center that she was a virgin was medically false. See Brief at 42. The trial court permitted Alverio to be examined regarding the fact that he had sexual intercourse with S.P. See N.T., 9/15/11, at 17. Thus, the jury was made aware of the fact that Appellant was attempting to elicit. Any further inquiry would have had no probative value and would have been highly prejudicial. Thus, the evidence was properly excluded. See 3 v see also 2 Alverio pled guilty to statutory sexual assault for the sexual contact between himself and S.P. See Commonwealth v. Alverio, CP-45-CR- 0000995-2010. 3 The quoted text is that of the former Rule 403, which was in place at the March 18, 2013, former Rule 403 was (Footnote Continued Next Page) -3- J-E01005-14 Commonwealth v. Turner, 73 A.3d 1283, 1286 n.5 (Pa. Super. 2013), appeal denied In his third issue on appeal, Appellant argues that the trial court erred recorded. The learned majority concludes that the trial court had ante at 10. My review of the jury charge reveals that, although the jury , the credibility of witnesses and interrogation was not addressed. See N.T., 9/19/11, at 96-126. However, I ultimately agree that the trial court did not abuse its discretion in declining interrogation. Appellant implicitly argues that the failure to record his custodial interrogation violated his right to due process. In Commonwealth v. Harrell, a panel of this Court held that the due process clause of the Pennsylvania Constitution does not require that custodial interrogations be recorded. 65 A.3d 420, 429 (Pa. Super. 2013), citing Commonwealth v. _______________________ (Footnote Continued) rescinded and replaced with current Rule 403. See 43 Pa.B. 620 (Feb. 2, 2013). -4- J-E01005-14 Craft, 669 A.2d 394 (Pa. Super. 1995) (Del Sole, J. opinion announcing the judgment of the court). the Pennsylvania Constitution guarantee due process protections. Our Commonwealth v. Nase, 2014 WL 4415061, *2 (Pa. Super. Sept. 9, 2014). (footnote and citation omitted). Thus, the question is whether recording is required under the Fourteenth Amendment of the United States Constitution. There is no authority for the proposition that recording is required by the Fourteenth Amendment. The Alaska Supreme Court is the only court to have held that failure to record a custodial interrogation violates a Const Stephan v. Alaska, 711 P.2d 1156, 1162-1165 (Alaska 1985). This issue has been litigated in courts throughout the country for at least three decades and not a single jurisdiction has held that recording is required by the Fourteenth Amendment. Federal Courts have similarly aligned themselves with this view. At least 11 United States Courts of Appeals have held that neither the Fifth nor Fourteenth Amendment requires that custodial interrogations be recorded.4 See United States v. Meadows, 571 F.3d 4 The same due process requirements that apply to the states through the Fourteenth Amendment apply to the federal government through the Fifth (Footnote Continued Next Page) -5- J-E01005-14 131, 147 (1st Cir. 2009); United States v. Tykarsky, 446 F.3d 458, 477 requiring the recording of interrogations may be, it is clear that such United States v. Williams per curiam); United States v. Cardenas, 410 F.3d 287, 296 (5th Cir. 2005); United States v. Smith, 319 F. per curiam); United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004); United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005); United States v. Toscano-Padilla, 996 F.2d 1229 (9th Cir. 1993) (table) (per curiam); United States v. Zamudio, 211 F.3d 1279 (10th Cir. 2000) (table); United States v. Boston (per curiam); United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988). In Harrell, this Court restated the law as it stood when Craft was decided, i.e., only two states required custodial interrogations to be recorded.5 Harrell, 65 A.3d at 429. The laws of our sister states have _______________________ (Footnote Continued) Amendment. Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991) (citation omitted). 5 In addition to Alaska, the Minnesota Supreme Court required (and still requires) recording pursuant to its supervisory authority. Minnesota v. Scales, 518 N.W.2d 587, 591-592 (Minn. 1994). -6- J-E01005-14 changed significantly since Craft.6 Today, 24 states and the District of Columbia require the recording of custodial interrogations in certain circumstances and Vermont will begin requiring such recording in October 2015.7 See Stephan, 711 P.2d at 1162-1165; Ark.R.Crim.P. 4.7; Cal. Penal Code § 859.5; Conn. Gen. Stat. § 54-1o; D.C. Code § 5-116.01; 705 Ill.Comp.Stat. 405/5-401.5; 725 Ill.Comp.Stat. 5/103-2.1; Ind.R.Evid. 617; Me. Rev. Stat., title 25, § 2803-B(1)(K); Md. Code, Crim. Proc. § 2-402; Mich. Comp. Laws § 763.8; Minnesota v. Scales, 518 N.W.2d 587, 591- 592 (Minn. 1994); Mo. Rev. Stat. ch. 590.700; Mont. Code § 46-4-408; Neb. Rev. Stat. § 29-4503; N.J.R.Crim.P. 3:17; N.M. Stat. § 29-1-16; N.C. Gen. Stat. § 15A-211; Ore. Rev. Stat. § 133.400; Tex. Code Crim. Proc., art. 6 See Compendium: Electronic Recording of Custodial Interrogations (July 11, 2014), available at http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=33287&libID=33256 (last accessed Sept. 15, 2014). 7 Each state differs with respect to the scope of its recording requirement. In some states, all custodial interrogations must be recorded. Other states only require that a custodial interrogation be recorded if police are investigating certain enumerated offenses. Furthermore, some states have certain exceptions to the recording requirement. For example, some states do not require a custodial interrogation be recorded if the person being interrogated requests that the interrogation not be recorded. As the exact -7- J-E01005-14 38.22; Wis. Stat. § 968.073; see also 2014 Vt. Adv. Legis. Serv. 193 (effective Oct. 1, 2015).8 Although beginning next year, a majority of jurisdictions in the United States will require custodial interrogations to be recorded in certain circumstances, that does not alter my analysis of the discrete issue of whether the Fourteenth Amendment requires the recording of custodial interrogations. On that issue, states are unanimous that it does not. The fact that the Fourteenth Amendment does not require the recording of custodial interrogations is not dispositive of whether the trial court abused its discretion in rejecting a jury instruction regarding the court in this Commonwealth has addressed the issue of whether a trial court is required to give such an instruction when so requested by the defendant. At least two states require a jury instruction upon request when an interrogation is not recorded. Massachusetts v. DiGiambattista, 813 8 Appellant argues that Iowa, New Hampshire, and Massachusetts also mandate recording of custodial interrogations. Those three jurisdictions, however, have not implanted mandatory recording. See Iowa v. Hajtic, particularly videotaping, of custodial interrogations should be encouraged, Massachusetts v. DiGiambattista, 813 N.E.2d 516, 532-535 (Mass. 2004) (requiring a jury instruction be given if a custodial interrogation is not recorded); New Hampshire v. Barnett, 789 A.2d 629, 632-633 (N.H. 200 incomplete recording of an interrogation results in the exclusion of the tape recording itself, evidence gathered during the interrogation may still be -8- J-E01005-14 N.E.2d 516, 533 (Mass. 2004); N.J.R.Crim.P. 3:17(e). The instruction is required in Massachusetts, however, because failing to record an interrogation goes against the preferred procedure of the Supreme Judicial Court of Massachusetts. DiGiambattista, 813 N.E.2d at 533. Likewise, the failure to record an interrogation violates a rule of criminal procedure in New Jersey; thus, such an instruction has been mandated. In Pennsylvania; however, no statute, rule of court, or court decision mandates that custodial interrogations be recorded. Thus, the reasons that an instruction is appropriate in Massachusetts and New Jersey do not apply to Pennsylvania. The proposed instruction submitted by Appellant instructs the jury that the failure to record an interrogation can be considered when determining voluntary. A criminal defendant is not entitled to a jury instruction regarding credibility. See Commonwealth v. Stoltzfus, 337 A.2d 873, 883 (Pa. charge requested would have given undue weight to a single factor in the . . the trial court acted Commonwealth v. Powers, 577 A.2d 194, 197 (Pa. Super. 1990). Furthermore, if this Court were to require such an instruction upon request in all cases in which an interrogation was not recorded, it would -9- J-E01005-14 strongly suggest that such recording is mandatory. As noted below, that is not the job of this Court. As such, I conclude that the trial court did not nstruction. confusion. The learned majority states that: Furthermore, we note that [Appellant] cites to no legal authority requiring instructions on the absence of recorded interrogations. Indeed, while acknowledging that recording such interrogations is not mandatory in Pennsylvania, Appellant invites us to create such a rule. Creation of such a rules and regulations, however, is a role reserved for the General Assembly, not the courts. Majority Opinion, ante at 10-11 n.10. I do not interpret this footnote as prohibiting a trial court from giving an instruction similar to that requested by Appellant in this case. Instead, the learned majority merely holds that there is no requirement that such an instruction be given. Accordingly, I believe that there is no legal prohibition to giving such an instruction if a trial court, in the exercise of its discretion, believes such an instruction is appropriate under the facts and circumstances of the case before it. statement that only the General Assembly may create a rule requiring that custodial interrogations be recorded. As noted above, although a majority of states that have adopted such a rule have done so through the legislative process, one court of last resort has done so under its supervisory authority and three jurisdictions have done so through rulemaking authority. Thus, - 10 - J-E01005-14 such a rule can be promulgated by either our Supreme Court or our General Assembly, and not just our General Assembly. See Harrell, 65 A.3d at 450 -based decision to compel recordation of all police interrogations is a step that we, as an intermediate appellate court, cannot take. Our legislature and our Supreme Court are empowered to do In sum, I believe that the Rape Shield Law is not applicable in this case; however, further examination of Alverio was properly excluded pursuant to Pennsylvania Rule of Evidence 403. I also believe that the jury charge did however, the trial court did not abuse its discretion in declining to give be affirmed. Judge Donohue joins this Concurring Opinion. - 11 -