J-A14012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORMAN BENJAMIN HERRING,
Appellant No. 1354 MDA 2014
Appeal from the Judgment of Sentence June 30, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003830-2013
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 23, 2015
Norman Benjamin Herring (Appellant) appeals from the June 30, 2014
judgment of sentence of 10 to 20 years’ imprisonment after a jury found him
guilty of involuntary deviate sexual intercourse,1 statutory sexual assault,2
aggravated indecent assault,3 indecent assault,4 unlawful contact with a
minor,5 and corruption of minors.6 Appellant now challenges the sufficiency
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3123(a)(7).
2
18 Pa.C.S. § 3122.1(a)(2).
3
18 Pa.C.S. § 3125(a)(8).
4
18 Pa.C.S. § 3126(a)(8).
5
18 Pa.C.S. § 6318(a)(1).
(Footnote Continued Next Page)
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of the evidence supporting his convictions and the ruling of the trial court on
his motion in limine. After careful review, we affirm the judgement of
sentence.
We set forth a factual summary of this matter as follows:
During the summer of 2012, N.M., the victim, was 13 years old and
lived with her Mother, brother, stepbrother, and stepfather. N.T., at 221-
222. Mother’s sister, Aunt, lived two doors down from the victim’s
residence. N.T., at 131. Aunt lived with her two children, her boyfriend, her
boyfriend’s father, and her boyfriend’s brother, Appellant, who was 24 years
old at the time. N.T., at 131. The two families would routinely spend time
together, which is how N.M. and Appellant first met. N.T., at 132. N.M. and
Appellant started communicating directly with each other online and through
text messaging in the late summer of 2012. N.T., at 133.
On September 22, 2012, N.M.’s parents left her at home while the rest
of the family went out. N.T., at 119. While they were out, she sent several
texts inquiring into exactly when to expect the family to arrive home. N.T.,
at 116, 224. N.M.’s stepfather found the texts suspicious and consequently
asked Aunt to go check on N.M.. N.T., at 119. Aunt testified that she saw
N.M. sitting on Appellant’s lap through the front window when she walked up
to the house. N.T., at 224. Aunt went back to her residence and returned
_______________________
(Footnote Continued)
6
18 Pa.C.S. § 6301.
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to N.M.’s house with her boyfriend, Appellant’s brother. N.T., at 224.
Appellant’s brother testified that when he approached the residence he saw
Appellant and N.M. leaning in together at which time he yelled, “What the
hell are you guys doing?” N.T., at 240. N.M. ran upstairs and Appellant fled
out the back door. N.T., at. 240.
An investigation ensued which resulted in charges being brought
against Appellant regarding alleged sexual contact with the victim. At trial,
N.M. testified that she and Appellant had four different sexual encounters.
The first encounter was at Appellant’s residence during which time they had
vaginal and anal sex. N.T., at 135-36, 163-64. The second encounter
occurred in N.M.’s bedroom where they had vaginal sex. N.T., at 139. The
third encounter took place at the cousin of Appellant’s residence, which
involved vaginal and anal sex. N.T., at 141. The final encounter occurred at
N.M.’s residence at which time they had oral sex. N.T., at 143. When
questioned about inconsistencies between her testimony in court and during
the initial investigation, where she did not implicate Appellant, N.M. testified
that she “didn’t tell them what happened because [she] was scared because
[she] thought that everything was [her] fault.” N.T., at 185. Appellant
claims that the victim fabricated the events entirely.
On March 13, 2014, at the conclusion of the trial, Appellant was found
guilty and sentenced as stated above. Appellant filed a timely notice of
appeal and complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
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statement. The trial court issued its Rule 1925(a) opinion on November 6,
2014. Appellant now presents the following issues for our review:
I. Whether the evidence submitted at trial was insufficient to
support:
a. The verdict of guilty of involuntary deviate sexual
intercourse when evidence submitted at trial failed to
rise to the level of proof needed to establish that
[Appellant] had deviate sexual intercourse with the
alleged victim;
b. The verdict of guilty of statutory sexual assault when
evidence submitted at trial failed to rise to the level of
proof needed to establish that [Appellant] had sexual
intercourse with the alleged victim;
c. The verdict of guilty of aggravated indecent assault
when evidence submitted at trial failed to rise to the
level of proof needed to establish that [Appellant]
penetrated the genitals or anus of the minor child with
his finger or other body part;
d. The verdict of guilty of indecent assault when evidence
submitted at trial failed to rise to the level of proof
needed to establish that [Appellant] had indecent
contract with the minor child;
e. The verdict of guilty of unlawful contract with a minor
when evidence submitted at trial failed to rise to the
level of proof needed to establish that [Appellant] was
intentionally in contact with the alleged victim for the
purpose of engaging in an unlawful contact; and,
f. The verdict of guilty of corruption of minor when
evidence submitted at trial failed to rise to the level of
proof needed to establish that [Appellant] corrupted or
tended to corrupt the morals of the alleged victim by
having sexual contact with the alleged victim.
II. Whether the trial court abused its discretion in denying
[Appellant]’s motion to introduce evidence of the victim’s
past sexual conduct pursuant to 18 Pa.C.S.A. § 3104
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where [Appellant] sought to introduce evidence of the
alleged victim’s past sexual assault:
a. When such evidence would speak to the alleged victim’s
bias, challenge her credibility, and establish that she
had a motive to be untruthful; and
b. When such evidence had a probative value which was
exculpatory to [Appellant].
Appellant’s Brief, at 4.
Sufficiency of the Evidence
Appellant presents a sufficiency of the evidence argument for each of
the six offenses, however; each claim challenges the same evidence, that of
intentional sexual contact between Appellant and the victim. Therefore, it is
unnecessary for us to review each claim. If we find that the evidence at
issue satisfies a general sufficiency analysis, a fortiori, each claim will be
deemed sufficient.
We review Appellant’s challenge to the sufficiency of the evidence
under the following, well-settled standard of review:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal
citations omitted).
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The common element to all offenses in the case at bar is the sexual
contact as discussed above. Appellant supports his contention that the
evidence is insufficient to support the verdict as follows:
No testimony or other evidence presented at trial corroborated
[the victim]’s version of events. Her testimony was the sole
evidence against Appellant for this charge. The lack of
corroborating testimony by witnesses, particularly given the fact
that [the victim] herself indicated such witnesses existed, brings
the veracity of her entire testimony into question. Without
supporting evidence to corroborate her testimony, the evidence
submitted at trial is so weak and inconclusive that no reliable
determination of fact could have been made.
Appellant’s Brief, at 9.
Appellant articulates this argument directly regarding the first offense
and incorporated by reference or similar argument in the rest. To
summarize, Appellant’s sufficiency argument is directed entirely to the
credibility of the victim. To address the claim that the verdict should not
stand on the testimony of the victim alone, we rely on this Court’s well
established rules regarding sexual offense victims.
[I]t is axiomatic that “[t]he Commonwealth may sustain its
burden by proving the crime’s elements with evidence which is
entirely circumstantial and the trier of fact, who determines
credibility of witnesses and the weight to give the evidence
produced, is free to believe all, part, or none of the evidence.”
Commonwealth v. Brown, 701 A.2d 252, 254 (Pa. Super.
1997) (citations omitted). In the case of sexual offenses, the
testimony of the victim alone is sufficient to convict, and medical
evidence is not required if the fact finder believes the victim.
Commonwealth v. Owens, 649 A.2d 129, 133 (Pa. Super.
1994).
Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super. 2003).
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The Commonwealth provided several witnesses that testified as to
having seen the victim and Appellant engaged in questionable behavior.
Further, the victim testified that she had oral, vaginal, and anal sex with
Appellant. The finder of fact was free to render a verdict based entirely on
this testimony. For us to find this evidence insufficient as a matter of law, it
must contravene the human experience and laws of nature. There is
nothing established in the record which leads us to the conclusion that the
evidence as presented is so impossible. Accordingly, when viewed in the
light most favorable to the Commonwealth, as verdict winner, we find that
the elements of each offense have been sufficiently established.
Abuse of Discretion
We next consider Appellant’s argument that the trial court abused its
discretion when it found the evidence of the victim’s past sexual conduct
inadmissible. A day before trial, pursuant to the Rape Shield Law,7 Appellant
sought, to introduce evidence that the victim had reported a prior sexual
assault. The court heard arguments on the motion, and granted it in part
and denied it in part. Appellant contends that he successfully pierced the
Rape Shield, and that therefore the trial court was required to grant his
motion in full. We disagree.
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7
18 Pa.C.S. § 3104.
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When ruling on a trial court's decision to grant or deny a motion in
limine, we apply an evidentiary abuse of discretion standard of review.
Commonwealth v. Bozyk, 987 A.2d 753, 755–756 (Pa. Super.2009)
(citations omitted). The admission of evidence is committed to the sound
discretion of the trial court, and a trial court's ruling regarding the admission
of evidence will not be disturbed on appeal “unless that ruling reflects
‘manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support to be clearly erroneous.’” Id. (quoting Commonwealth v.
Einhorn, 911 A.2d 960, 972 (Pa. Super.2006)).
Initially, we note that the trial court applied the correct law in
reviewing Appellant’s motion under general rules of evidence, not the Rape
Shield Law. We have held that if the prior sexual conduct was a prior sexual
assault, then the Rape Shield Law does not apply and the evidence is
evaluated under the general evidentiary rules.8 Commonwealth v. Fink,
791 A.2d 1235, 1241 (Pa. Super. 2002). The court applied Pennsylvania law
regarding Relevance,9 Character Evidence,10 and A Witness’s Character for
Truthfulness or Untruthfulness11 in scrutinizing Appellant’s motion.
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8
The Rape Shield Law provides, in pertinent part: “Evidence of specific
instances of the alleged victim's past sexual conduct… shall not be
admissible… except… where consent… is at issue and such evidence is
otherwise admissible pursuant to the rules of evidence” (emphasis
added). 18 Pa.C.S. § 3104.
9
Pa.R.E. 401.
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The trial court analyzed Appellant’s claim considering the following
prongs of Appellant’s motion:
1. The victim had been previously sexually assaulted;
2. That this was not reported;
3. That the victim’s mother did not believe the victim regarding
the prior sexual assault;
4. That the victim’s knowledge of sexual techniques or
nomenclature did not come from [Appellant].
Trial Court Opinion, 11/6/14, at 9-10.
The trial court ruled that Appellant was able to establish an alternate
theory of why the victim’s hymen was torn by asking the nurse about the
past sexual assault. This first prong of the motion was granted and requires
no analysis on appeal.
The court went on to rule that the opinion of the victim’s mother failed
to come in as character evidence or reputation evidence.
Evidence of a person's character or a trait of character is not
admissible for the purpose of proving action in conformity
therewith on a particular occasion[.] In a criminal case, subject
to limitations imposed by statute, evidence of a pertinent trait of
character of the alleged victim is admissible when offered by the
accused, or by the prosecution to rebut the same.
Pa.R.E. 404(a)(2)(i).
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(Footnote Continued)
10
Pa.R.E. 404(a)(2)(i).
11
Pa.R.E. 608(b)(1).
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Appellant contends that truthfulness is always a pertinent character
trait of any witness. He incorrectly deduces that the opinion about the
victim’s truthfulness meets the exception and so is admissible under a Rule
404 analysis. Were truthfulness to be regarded as a pertinent character
trait, then Appellant would not be wrong in asserting that the evidence
meets the exception, however; this Court distinguishes between a pertinent
character trait and general truthfulness.
In light of the recognized interpretation of the term, we conclude
that a “pertinent” character trait is limited to a character trait of
the victim that is relevant to the crime or defense at issue in the
case. Therefore, whenever the accused seeks to offer character
evidence for purposes of attacking or supporting the credibility of
a victim who testifies, the admissibility of such evidence is
governed by Pa.R.E. 608 and proof of specific incidents of
conduct by either cross-examination or extrinsic evidence is
prohibited.
Com. v. Minich, 4 A.3d 1063, 1072 (Pa. Super. 2010).
Rule 608 also provides that opinion testimony about a witness's
character for truthfulness or untruthfulness is not admissible. Consequently,
we find no error in the trial court ruling against this second prong of the
motion.
As to the third prong, the court found questions with reference to the
lack of reporting to be irrelevant. Evidence is relevant if it has any tendency
to make a fact more or less probable than it would be without the evidence
and the fact is of consequence in determining the action. Pa.R.E. 401.
Appellant’s argument is that the evidence was relevant to establish a motive
to lie or to fabricate the allegations. No reference to what the motive may
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have been for the victim to lie or how the evidence would serve to support
that theory is provided. That the victim did not report the prior sexual
assault, without more, does not tend to prove or disprove any material fact
in the case at bar. Accordingly, we find no error in the trial court’s ruling on
this prong.
Finally, the trial court ruled to exclude evidence of the victim’s
knowledge of sexual techniques and nomenclature. “Evidence of a prior
sexual assault by another man is not admissible to show knowledge by the
child victim of sexual techniques or nomenclature unless the evidence
exonerates the defendant.” Fink, 791 A.2d at 1241. Appellant has failed to
show how exposing the victim’s knowledge of sexual techniques or
nomenclature would serve to exonerate him. Therefore, we conclude that
the trial court did not abuse its discretion in so disposing of Appellant’s
motion.
Judgment of sentence AFFIRMED.
Judge Strassburger joins this memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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Com. v. Herring, N.
Combined Opinion