Com. v. Clerger, J.

J. S27009/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JEAN M. CLERGER, : No. 451 EDA 2014
:
Appellant :

Appeal from the Judgment of Sentence, January 13, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003679-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 10, 2015

Jean M. Clerger appeals from the judgment of sentence of January 13,

2014, following his conviction of one count each of sexual assault and

aggravated indecent assault. After careful review, we affirm.

The trial testimony was aptly summarized by the trial court as follows:

In February of 2012, complainant A. E. was a
freshman nursing major at LaSalle University, living
with her parents. In that month, she attempted to
use several Internet dating websites to meet a
boyfriend, and when other sites did not work for her,
tried Craig’s List. She responded to a personal
advertisement posted by Appellant, telling him that
she was eighteen (18) years old, a nursing major at
LaSalle, and lived in Philadelphia. Appellant
responded to her message and they began to
communicate, first by email, and then over text
message. In the text messages, A. E. stated to
Appellant that if he made a move, she would not
stop him, however, she meant kissing or cuddling --
not sex.

* Former Justice specially assigned to the Superior Court.
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After communicating for two (2) to three (3)
weeks via text message, A. E. felt comfortable with
Appellant and that she could trust him. In the text
messages they had talked about school, A. E. told
Appellant her father didn’t let her do too much, and
when Appellant asked A. E. for a sexy picture, she
responded that did not “sext.”[Footnote 17]
Appellant replied that they were not engaged in
“sexting;” they were not talking dirty, he just wanted
a “cute pic.” Thereafter, they made plans to meet in
person at Appellant’s house, located at 6227 Oakley
Street in the City and County of Philadelphia on
March 5, 2012.

A. E. took the bus to Appellant’s house on the
assumption that she would be able to talk to
Appellant and get to know him better. Upon her
arrival, however, Appellant took A. E. through the
back door into the home, and they sat down to
watch TV for a couple of minutes. Appellant then
asked A. E. if he could give her a tour of the house,
and she agreed. Appellant then took her down to
the basement and pushed her onto the bed, asking
A. E. if she wanted to have sex. A. E. said “no” and
ran upstairs, but Appellant chased her and pushed
her down again, yelling. A. E. asked to leave, but
Appellant said “no.”

A. E. told Appellant she needed to use the
bathroom; once she was in the bathroom she tried to
jump out of the window, but could not because it
was too high and she was afraid of breaking her leg.
A. E. went back downstairs and attempted to escape
through the back door, only to find it padlocked from
the inside. She saw Appellant looking through the
back door before he came in and attempted to pull
off her pants as A. E. desperately tried to pull them
back up. A. E. yelled, “No, stop doing that,” but
Appellant said that if she gave him oral sex, he
would let her leave.

[Footnote 17] To “sext” is to send
(someone) sexually explicit photographs

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or messages via cell phone. The Oxford
English Dictionary, Sep. 15, 2014,
available at
http://www.oxforddictionaries.com/us.

A. E. performed oral sex on Appellant, with his
penis in her mouth, and Appellant performed oral
sex on her by putting his mouth on her vagina and
his fingers in her vagina and anus,[Footnote 18] but
he still would not let her leave. She did not want to
perform these acts, and they were painful, but felt
that she had no choice; she was afraid that if she
said no, Appellant would force her to have sex with
him. Appellant then said that if she wanted to leave,
she had to have sex with him.

At that time, Appellant and A. E. were laying
[sic] on the floor on a sheet, with Appellant on top of
her, holding her legs open with a painful grip. A. E.,
crying, asked Appellant to stop because he was
hurting her, and he told her to shut up. Appellant
wore a condom at first, but later removed it.
Appellant and A. E. then engaged in sexual
intercourse for about five minutes before Appellant
finished and let her up. A. E. asked Appellant for a
tissue because semen was running down her leg,
and Appellant laughed at her. Appellant then
unlocked the back door with a key and let A. E.
leave.

After A. E. left the house, at approximately
1:27 p.m., Appellant sent text messages asking,
“You want to be my girl?” and for A. E.’s Facebook
page.

A. E. walked back to the nearest bus stop,
where two women saw her crying and asked her
what had happened. The women flagged down a
passing police officer, Philadelphia Police Officer
Joseph Mazzuca, at approximately 1:55 p.m.
Officer Mazzuca was on routine patrol with his
partner around the corner of Rising Sun Avenue and
Levick Street when he saw the two women waving
frantically at them. When asked what happened,

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A. E. told Officer Mazzuca that she had been raped
and that she could tell him the location where it had
happened. Officer Mazzuca ushered A. E. into the
vehicle and promptly drove to the scene of the
crime. Although A. E. appeared quiet, stunned, and
shocked, she was able to lead the police officers to
Appellant’s home. Philadelphia Police Officer
Linda Crusemire also responded to Appellant’s home
with her partner, Philadelphia Officer Timothy
Fitzgibbon. She also observed A. E. in
Officer Mazzuca’s patrol car and noticed that A. E.
was very upset and seemed shocked: she was
staring, nervous, shaken.

[Footnote 18] Appellant cross-examined
A. E. extensively on these statements,
arguing she did not mention Appellant
putting his fingers into her anus at the
preliminary hearing. At trial, Assistant
District Attorney Peter Lim testified that
he did not press the complainant during
the preliminary hearing about where
Appellant had penetrated her because in
his experience, the most important thing
at the preliminary hearing is to make
sure the complainant felt comfortable
with him. He stated that to force her to
talk about such things was to victimize
her again.

Officer Fitzgibbon then went to Appellant to
ask him questions about the incident in the house.
Appellant said that there was a woman, and that
they had had sexual intercourse. Officer Fitzgibbon
then conducted a patdown of Appellant and asked
him whether there was anything in his pockets.
Appellant informed Officer Fitzgibbon he had a used
condom in his pocket. When Officer Fitzgibbon
realized he did not have a secure container for the
condom, he directed Appellant to put the condom
back into his pocket. Appellant was wearing a
jacket, a shirt, jeans, and no underwear. Appellant
was then placed in the back of the car, and once
they arrived at Special Victims Unit,

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Officer Fitzgibbon informed the detective assigned of
the condom so that it could be secured.

At that time, A. E. identified Appellant as the
man who had assaulted her, although she did not
know him by his real name -- she knew him as
“Mark.” Police officers then took her to the station to
take her statement and have a rape kit performed.
Detective Adam O’Donnell of the Special Victims Unit
was the assigned detective to the case, and
interviewed A. E. at the station. She was emotional,
distraught, and a little withdrawn, and seemed very
shy. However, A. E. was able to provide Detective
O’Donnell with many details about the incident as
well as a detailed and accurate description of the
home. Detective O’Donnell then applied for a search
warrant for the premises of the Oakley Street house,
as well as for Appellant’s DNA to compare with the
rape kit.

Detective O’Donnell was present when the
search warrant was executed on Appellant’s home.
He searched the house, took evidence, and
photographed the layout. He took pictures of the
bathroom window, where he saw handprints on the
screen; however, the prints did not show up in the
photograph. A used black condom, green boxer
style underwear, proof of Appellant’s residence, and
a sheet and samples from the sofa cushions were
recovered from the Oakley Street house.

Joseph Kelly,[Footnote 19] the sexual assault
nurse examiner, collected this forensic evidence
through a detailed head-to-toe examination of A. E.
to search for cuts, bruises, tears, lacerations, and
other injuries. In addition to the head-to-toe exam,
A. E. had to lay [sic] on her back for a pelvic exam
to search for tears, cuts, or injuries to the vagina. A.
E. found this humiliating and painful. Kelly then
documented any discoveries along with his
observations. He observed A. E.’s demeanor was
withdrawn and tearful. A. E. told Kelly that Appellant
had grabbed her legs and pushed her down, and held
her by the legs. A. E. indicated to Kelly that her

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vagina had been penetrated by Appellant’s penis and
fingers; that her anus was penetrated by Appellant’s
fingers; that Appellant had performed oral sex on
her; and that Appellant had ejaculated in her vagina
and possibly on her leg. She was unsure whether a
condom had been used.

[Footnote 19] Kelly is a registered nurse
certified in sexual assault examinations.
He has conducted at least three hundred
(“300”) exams over his eleven years as a
sexual assault nurse examiner.

Kelly documented patterned bruise marks of
handprints on both legs below her knees; he had
never seen such a unique pattern of bruising before.
A. E. was very tender in her labia majora and
minora,[Footnote 20] there were tears below the
vaginal area, tenderness in the perineum, tears and
tenderness in the anus, with no active pleading [sic].
Oral, vulvar, vaginal, cervical, rectal, and perineal
swabs were taken for potential DNA evidence.

[Footnote 20] The labia majora and labia
minora are the other two lips of the
vagina.

Counsel stipulated that Adewumi Modupe, an
employee of the Philadelphia Criminalistics lab,
would have testified that she analyzed the swabs
from the rape kit performed by Kelly and that no
sperm were observed. The results were logged and
samples held for DNA testing. The DNA analyst,
Lissette Vega, would have testified that the vaginal
swab and perineal swab revealed the presence of
Appellant’s sperm.

Following the assault, A. E. did not feel that
she was sexually attracted to men any longer and is
only interested in dating women. She stated this
might have had something to do with what happened
at Appellant’s home.

***

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Claudia Clerger, Appellant’s sister, testified in
his defense. She testified to Appellant’s reputation
for being a peaceful, nonviolent person in his
community. She described the layout of the family
home. She testified that her and Appellant’s
younger brother Jonas Clerger is severely autistic,
and cannot speak, read, talk, or write. He can
usually be found in his second-floor bedroom
listening to music, or sitting in front of the television
rocking back and forth. The padlock on the front and
back doors are to prevent Jonas from having access
to the outdoors or to other bedrooms.

Trial court opinion, 9/29/14 at 3-9 (citations to the record omitted).

Following a jury trial held August 14-16, 2013, appellant was found

guilty of sexual assault and aggravated indecent assault. Appellant was

found not guilty of rape by forcible compulsion and involuntary deviate

sexual intercourse. Additional charges including false imprisonment and

recklessly endangering were nol prossed. On January 13, 2014, the trial

court imposed an aggregate sentence of 6 to 12 years’ incarceration. No

post-sentence motions were filed; however, on February 10, 2014, appellant

filed a timely notice of appeal. Appellant filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,

and the trial court has filed an opinion.1

1
The trial court notes that appellant’s Rule 1925(b) statement was one day
late. (Trial court opinion, 9/29/14 at 3 n.16.) However, the trial court
addressed the issues raised in its Rule 1925(a) opinion and it is unnecessary
to remand. See Commonwealth v. Thompson, 39 A.3d 335, 340
(Pa.Super. 2012) (“When counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues we need not
remand and may address the merits of the issues presented.”), citing

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Appellant presents the following issues for this court’s review on

appeal:

1. Did the trial court err in denying Appellant’s
Motion for Mistrial when the government failed
to include in discovery any information
regarding an alleged handprint on a window
screen recovered from Appellant’s bathroom
when testimony regarding the handprint was
given at trial to corroborate Complainant’s
testimony?

2. Did the trial court improperly bar the
admission of text messages between
Complainant and Appellant when such text
messages served to establish Appellant’s
defense of consent to sexual intercourse and
were offered to challenge Complainant’s
credibility, and the basis of the exclusion was
the Rape Shield Law, 18 Pa.C.S. § 3104(a)[?]

3. Did the trial court err in permitting the
improper opinion testimony of
Detective O’Donnell when such opinion
testimony was referenced in the
Commonwealth’s closing statement, and
usurped the fact-finding power of the jury?

Appellant’s brief at 2.

In his first issue on appeal, appellant argues that the trial court erred

in denying his motion for mistrial after Detective O’Donnell testified

regarding handprints on the screen of the upstairs bathroom window.

According to appellant, this corroborated the victim’s testimony that she

Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc).

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considered jumping out the window. Appellant claims that the

Commonwealth violated its mandatory discovery obligations by not turning

over this evidence prior to trial. Appellant also argues that he was unfairly

surprised by the detective’s testimony, and the trial court’s curative

instruction was insufficient to cure the error.

The standard governing our review of a trial court’s
refusal to grant a request for a mistrial has been
previously well summarized by this Court:

The decision to declare a mistrial is
within the sound discretion of the court
and will not be reversed absent a
“flagrant abuse of discretion.”
Commonwealth v. Cottam, 420
Pa.Super. 311, 616 A.2d 988, 997
(1992); Commonwealth v. Gonzales,
415 Pa.Super. 564, 570, 609 A.2d 1368,
1370-71 (1992). A mistrial is an
“extreme remedy . . . [that] . . . must
be granted only when an incident is of
such a nature that its unavoidable effect
is to deprive defendant of a fair trial.”
Commonwealth v. Vazquez, 421
Pa.Super. 184, 617 A.2d 786, 787-88
(1992) (citing Commonwealth v.
Chestnut, 511 Pa. 169, 512 A.2d 603
(1986), and Commonwealth v.
Brinkley, 505 Pa. 442, 480 A.2d 980
(1984)). A trial court may remove taint
caused by improper testimony through
curative instructions. Commonwealth
v. Savage, 529 Pa. 108, 602 A.2d 309,
312-13; Commonwealth v.
Richardson, 496 Pa. 521, 437 A.2d
1162 (1981). Courts must consider all
surrounding circumstances before
finding that curative instructions were
insufficient and the extreme remedy of a
mistrial is required. Richardson, 496

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Pa. at 526-527, 437 A.2d at 1165. The
circumstances which the court must
consider include whether the improper
remark was intentionally elicited by the
Commonwealth, whether the answer
was responsive to the question posed,
whether the Commonwealth exploited
the reference and whether the curative
instruction was appropriate. Id.

Commonwealth v. Stilley, 455 Pa.Super. 543, 689
A.2d 242, 250 (1997).

Commonwealth v. Bracey, 831 A.2d 678, 682-683 (Pa.Super. 2003),

appeal denied, 844 A.2d 551 (Pa. 2004).

When the trial court provides cautionary instructions
to the jury in the event the defense raises a motion
for mistrial, “[t]he law presumes that the jury will
follow the instructions of the court.”
Commonwealth v. Brown, 567 Pa. 272, 289, 786
A.2d 961, 971 (2001) (citation omitted), cert.
denied, 537 U.S. 1187, 123 S.Ct. 1351, 154 L.Ed.2d
1018 (2003).

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008),

appeal denied, 966 A.2d 571 (Pa. 2009).

In order to succeed on a Brady[2] claim, a
defendant must establish that the evidence withheld
was favorable to him, i.e., that it was exculpatory or
had impeachment value; the evidence was
suppressed by the prosecution; and prejudice
resulted. Commonwealth v. Sattazahn, 597 Pa.
648, 952 A.2d 640, 658 n. 12 (2008). In order to
establish prejudice, a defendant is obliged to show
that “the evidence in question was material to guilt
or punishment, and that there is a reasonable
probability that the result of the proceeding would
have been different but for the alleged suppression

2
Brady v. Maryland, 373 U.S. 83 (1963).

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of the evidence.” Commonwealth v. James
Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008)
(citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles
v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995)).

Commonwealth v. Miller, 987 A.2d 638, 655 (Pa. 2009). “The

Commonwealth does not violate [Pa.R.Crim.P.] Rule 573 when it fails to

disclose to the defense evidence that it does not possess and of which it is

unaware.” Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008)

(citations omitted). “It is well established in this Commonwealth that the

purpose of the discovery rules is to permit the parties in a criminal matter to

be prepared for trial. Trial by ambush is contrary to the spirit and letter of

those rules and cannot be condoned.” Commonwealth v. Shelton, 640

A.2d 892, 895 (Pa. 1994), citing Commonwealth v. Moose, 602 A.2d

1265, 1274 (Pa. 1992).

Instantly, Detective O’Donnell testified that Commonwealth

Exhibit C-5G depicted the upstairs bathroom window. (Notes of testimony,

8/15/13 at 80.) According to Detective O’Donnell, there were handprints on

the window screen which did not show up in the photograph. (Id. at

80-81.) On cross-examination, Detective O’Donnell explained, “I didn’t

realize the photograph did not show it. I saw the handprints. I took the

photographs and I assumed that the photographs would show the

handprints. They do not.” (Id. at 92.) Appellant made a motion for mistrial

which was denied. (Id. at 114-117.) However, the trial court issued a

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curative instruction to the jury, striking Exhibit C-5G and

Detective O’Donnell’s testimony regarding the handprints:

Jurors, at this time I’m going to instruct you to
disregard any of Detective O’Donnell’s testimony
with respect to handprints on the window or the
window screen. This is a legal ruling that there is
nothing for you to consider, because I’m striking it
from the record. As I instructed you in the opening
instructions, whenever evidence is stricken from the
record that means that there’s nothing for you to
consider. You shouldn’t concern yourselves with this
ruling. It’s a legal ruling. Just follow my
instructions. Don’t think about the reasons why. I
don’t want that to be a distraction to you. I have
instructed counsel not to in any way address that
issue of handprints on the window or window screen.
That is no longer an issue. It’s off the table. It [sic]
stricken as if its [sic] didn’t exist. For that reason, I
have also stricken the exhibit labeled C-5G. It has
been removed from the poster board.

Id. at 119-120.

First, Detective O’Donnell’s testimony that he observed handprints on

the bathroom window is not exculpatory; rather, it tends to corroborate the

victim’s version of events. Therefore, failure to disclose this evidence was

not a Brady violation. Furthermore, there is no indication that the

Commonwealth was aware, prior to trial, that Detective O’Donnell observed

handprints on the window screen. The handprints did not show up in the

photograph. The Commonwealth complied with Rule 573(b)(1)(f) by turning

over the photograph prior to trial. There is nothing to suggest that the

Commonwealth suppressed any evidence or that this was trial by ambush.

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In addition, the trial court issued a thorough curative instruction

ordering the jury to disregard Detective O’Donnell’s testimony concerning

the handprints on the window screen, and striking Exhibit C-5G. The jury is

presumed to follow the judge’s instructions. Parker, supra. The trial court

did not abuse its discretion in denying appellant’s motion for mistrial.

Next, appellant argues that the trial court erred in excluding certain

text messages between appellant and the victim based on the Rape Shield

Law. The text messages in question were as follows:

Appellant: No are you a freak?

The victim: Sometimes.

Appellant: Hopefully, it will be only for me.

The victim: U nasty lol.

Notes of testimony, 8/13/13 at 3-4.3

Appellant: Speaking of sexting, whens [sic] the last
time u did something.

The victim: Like four months ago. . . .

Id. at 4.

The Rape Shield Law provides, in relevant part, as follows:

§ 3104. Evidence of victim’s sexual conduct

(a) General rule.--Evidence of specific instances
of the alleged victim’s past sexual conduct,
opinion evidence of the alleged victim’s past
sexual conduct, and reputation evidence of the

3
“LOL” stands for “Laughing Out Loud.” (Notes of testimony, 8/15/13 at
27.)

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alleged victim’s past sexual conduct shall not
be admissible in prosecutions under this
chapter except evidence of the alleged victim’s
past sexual 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.

18 Pa.C.S.A. § 3104(a).

Our standard of review of a trial court’s ruling on the
admissibility of evidence is limited.

A trial court’s ruling on the admissibility
of evidence of the 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.’

Commonwealth v. Allburn, 721 A.2d 363, 366
(Pa.Super.1998), appeal denied, 559 Pa. 662, 739
A.2d 163 (1999) (citations omitted), quoting
Commonwealth v. Spiewak, 533 Pa. 1, 7, 617
A.2d 696, 699 (1992).

Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.Super. 2009), appeal

denied, 8 A.3d 341 (Pa. 2010).

The purpose of the Rape Shield Law is to prevent a
trial from shifting its focus from the culpability of the
accused toward the virtue and chastity of the victim.
Allburn, 721 A.2d at 366-367. The Rape Shield Law
is intended to exclude irrelevant and abusive
inquiries regarding prior sexual conduct of sexual
assault complainants. See Commonwealth v.

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Riley, 434 Pa.Super. 414, 643 A.2d 1090, 1093
(1994).

Id.

The text of the statute includes one specific
exception to its general prohibition of past sexual
conduct evidence, regarding the victim’s sexual
conduct with the defendant where consent of the
alleged victim is at issue and the evidence is
otherwise admissible. 18 Pa.C.S.A. § 3104(a).
However, via interpretive efforts by the courts of this
Commonwealth, the Rape Shield Statute has been
found to bow to the following exceptions:
(1) evidence that negates directly the act of
intercourse with which a defendant is charged;
(2) evidence demonstrating a witness’ bias or
evidence that attacks credibility; and (3) evidence
tending to directly exculpate the accused by showing
that the alleged victim is biased and thus has motive
to lie, fabricate, or seek retribution via prosecution.
Allburn, 721 A.2d at 367.

Id. at 690.

Appellant argues that these messages did not fall within the scope of

the Rape Shield Law because they neither elicited specific instances of the

victim’s past sexual conduct nor did they seek to put the victim’s sexual

history at issue. (Appellant’s brief at 13-14.) We disagree. Clearly,

references to whether or not the victim is a sexual “freak” and previous acts

of sexting with other people is evidence of past sexual conduct and is

inadmissible.

Appellant argues that the text messages were admissible to challenge

the victim’s credibility, where she testified that she had come to trust

appellant and that their relationship was not sexual in nature. (Appellant’s

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brief at 14.) According to the victim, she thought appellant was a nice

person and their texts back and forth were not untoward or sexual. (Notes

of testimony, 8/15/13 at 28-31.) However, prior to trial, appellant argued

the messages were admissible as evidence of consent and the victim’s state

of mind. (Notes of testimony, 8/13/13 at 5-6.) Appellant did not argue they

were relevant to attack credibility.

Appellant also complains that the Commonwealth “opened the door” to

questioning the victim about the excluded text messages when it elicited

testimony from the victim to the effect that she thought appellant was

“being nice” and that she felt she could trust appellant. On redirect, the

Commonwealth questioned the victim about numerous text message

exchanges between herself and appellant in the weeks leading up to the

incident, including one in which appellant asked for “A sexy picture,” and her

response was, “I don’t do sexting.” (Notes of testimony, 8/15/13 at 26.)

Appellant argued that this line of questioning opened the door to admission

of the previously excluded text messages, including the one in which

appellant asked the victim whether she was a “freak,” so that the jury would

not be misled into believing all of their messages were non-sexual in nature.

(Id. at 36-37.) The trial court reaffirmed its prior ruling. (Id. at 38.)

As the Commonwealth states, its questioning on redirect regarding the

text message exchanges was actually in response to appellant’s questioning

on cross-examination, wherein appellant sought to establish the sexual

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nature of some of the text messages. For example, appellant asked the

victim about text messages on February 20, 2012, in which appellant asked,

“So, if I make a move on you, are you going to stop me[?]” (Notes of

testimony, 8/14/13 at 91.) The victim replied, “No,” to which appellant

answered with a smiley face. (Id.) The victim then responded, “LOL.” (Id.

at 92.)

The victim denied that any of the 206 text messages between herself

and appellant were sexual in nature. (Id. at 93.) Appellant then asked the

victim whether she thought messages requesting a picture of her, asking her

what she was wearing, and asking if she could spend the night would be

considered sexual in nature. (Id. at 93-94.) The victim conceded that such

queries could be considered sexual. (Id. at 94-95.)

On redirect, the Commonwealth questioned the victim about the text

messages referenced by appellant on cross-examination, including the one in

which appellant asked for “A sexy picture.” (Notes of testimony, 8/15/13 at

25-33.) The point of this questioning was to clarify the victim’s answers and

dispel any possible misimpressions created by defense counsel’s questioning

on cross-examination. (Commonwealth’s brief at 14.) For example, in

response to the victim’s reply that “I don’t do sexting,” appellant replied,

“It’s not sexting. We’re not talking dirty. I just want a cute pick [sic].”

(Notes of testimony, 8/15/13 at 26.) When appellant asked the victim

“What you [sic] going to wear Friday?”, the victim’s response was “Clothes.

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IDK.” (Id. at 26-27.)4 When appellant asked about spending the night, the

victim answered that they could spend time together during the day;

appellant’s response was, “Yeah, of course. Thursdays be [sic] the best day

for me.” (Id. at 25.)

Therefore, the Commonwealth’s questioning on redirect was simply an

attempt to put the text messages in their proper context. The

Commonwealth was entitled to respond to appellant’s cross-examination in

which he implied that some of the text message exchanges were sexual in

nature, e.g., when he asked the victim what she was wearing or requested a

sexy picture. By eliciting the complete text messaging conversations, as

opposed to the fragments cherry-picked by appellant, the Commonwealth

was attempting to show that their relationship was not, in fact, sexual in

nature. We disagree that the Commonwealth’s questioning somehow

“opened the door” to admission of the excluded text messages. In addition,

we note that appellant was permitted to question the victim about the 206

other text messages, as well as Craigslist’s personal ads and online dating

pages, in an attempt to establish that she and appellant had a sexual

relationship and that she went to his house with the intention of having

intercourse. Appellant’s defense was not hampered by the trial court’s

ruling. The trial court did not abuse its discretion in excluding the text

messages concerning the victim’s past sexual conduct.

4
“IDK” is an abbreviation for “I don’t know.” (Id. at 27.)

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Appellant also argues that exclusion of these text messages violated

his constitutional right of confrontation. (Appellant’s brief at 16-17.)

However, this argument was not presented in the trial court; as such, it is

deemed waived. Pa.R.A.P. 302(a).

Finally, appellant argues that the trial court permitted improper

opinion testimony by Detective O’Donnell, usurping the role of the jury and

requiring a new trial. (Appellant’s brief at 17-19.) Appellant complains that

Detective O’Donnell was allowed to assert his personal opinion on the

“ultimate issue” at trial, i.e., whether the victim was raped. (Id.) The

relevant portion of Detective O’Donnell’s testimony is as follows:

Q. Just a few more questions, detective, about
your investigation. At any point in time when
you’re collecting all this evidence do you ask
the victim, [], for her text messages, her
phone, or any of the emails that she may have
exchanged?

A. No. She mentioned text messages in her
interview, but they’re not relevant. It doesn’t
matter what they said prior.

MR. SHUTTLEWORTH: Objection to his opinion.

THE COURT: Sustained.

BY MS. MCNABB:

Q. Did you get a search warrant for the text
messages or the postings online?

A. No. I have a lot of cases. I have to manage
my time. I look for evidence that’s going to
prove one way or the other what happened.
And to me, in my judgment, it didn’t affect

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what happened inside the property, that
residence.

Q. Why in your opinion –

MR. SHUTTLEWORTH: I’m going to object.

THE COURT: Sustained.

MS. MCNABB: If I can rephrase the question?

THE COURT: Okay.

MS. MCNABB: Specifically, I would ask to inquire
from the detective why he a [sic] applied for certain
items and not others. Why did they not apply for a
search warrant with a judgment on what was
revealed. Why did she not ask?

THE COURT: That’s acceptable.

BY MS. MCNABB:

Q. Detective, you indicated to the jury you didn’t
ask her to view the phone or print out the text
messages. You didn’t ask for a search
warrant. Why not?

A. When I look for evidence I’m looking to find
out what happened. What happened inside
that property. What happened prior to that is
not something that I need to know. For
example, I investigate domestic rapes where a
husband and wife will have consensual sex for
years and something happens. What
happened prior to that doesn’t matter to me.
It doesn’t change the fact of the rape. Doesn’t
matter. There’s [sic] date rape investigations.
Doesn’t matter that someone showed up for a
date. It doesn’t give someone the right to
rape.

MR. SHUTTLEWORTH: Objection again.

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THE COURT: Sustained. Jurors, I’ll ask you at this
time to disregard the last comment that the
detective made. It shouldn’t be considered as part
of your deliberations. It’s inappropriate for you to
consider. So you should not consider that
statement. I’ll ask the detective to refrain from any
personal opinions.

Notes of testimony, 8/15/13 at 87-90.

Contrary to appellant’s argument on appeal, the trial court did not

permit improper opinion testimony. In fact, the trial court sustained defense

counsel’s objections and issued a prompt curative instruction to the jury that

they should disregard Detective O’Donnell’s testimony. Appellant never

moved for mistrial or indicated that the curative instruction was insufficient

to cure any potential prejudice. As such, the matter is waived.

Commonwealth v. Manley, 985 A.2d 256, 267 n.8 (Pa.Super. 2009),

appeal denied, 996 A.2d 491 (Pa. 2010) (“In such a case where the trial

court has sustained the objection, even where a defendant objects to

specific conduct, the failure to request a remedy such as a mistrial or

curative instruction is sufficient to constitute waiver.”) (citations omitted).

Appellant also complains that the Commonwealth referenced

Detective O’Donnell’s improper opinion testimony during closing argument.

Appellant did not raise this issue in his Rule 1925(b) statement. Appellant

did not assert a claim of prosecutorial misconduct during closing argument.

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Appellant only alleged trial court error and referenced Detective O’Donnell’s

testimony.5 Therefore, the issue is waived. Pa.R.A.P. 1925(b)(4)(vii).

Judgment of sentence affirmed.

Stabile, J. joins the Memorandum.

Fitzgerald, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015

5
“The court erred when it permitted improper opinion testimony of Detective
Adam O’Donnell, over counsel’s objections, and such testimony usurped the
fact-finding function of the jury. N.T. Trial Transcripts 8/15/13 at 87-90.”
(Appellant’s Rule 1925(b) statement, 9/12/14 at 2 ¶3; appellant’s brief
appendix A.)

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