Com. v. Deng, W.

J-S43014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

WANY L. DENG

Appellee No. 1665 MDA 2015

Appeal from the Order Entered September 14, 2015
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000509-2014

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 15, 2016

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Clinton County Court of Common Pleas, which granted the

motion in limine by Appellee, Wany L. Deng, to preclude the Commonwealth

from introducing certain testimony/evidence at trial. We affirm.

The relevant facts of this case as set forth in the affidavit of probable

cause are as follows. On August 28, 2014, Victim reported to police that on

August 24, 2014, Appellee had unlawful sexual contact with her.

Specifically, Victim alleged Appellee picked her up for a dinner date on

August 24, 2014. After dinner, Appellee drove Victim to the city beach

parking lot; and Victim and Appellee went for a walk. When Victim and

Appellee returned to Appellee’s car, Appellee lifted up Victim’s shirt and

began sucking on Victim’s breasts. Victim told Appellee she was
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uncomfortable and not ready for his sexual advances. Appellee ignored

Victim’s statements and inserted his fingers into her vagina. Victim again

told Appellee she was not ready for that type of intimate contact. Appellee

then drove Victim to his residence, at which time Victim made clear she did

not want anything sexual to take place between them. Appellee ignored

Victim once again, this time forcing himself on top of her and engaging in

sexual intercourse with Victim. Victim told Appellee to stop, but Appellee

continued to have sex with Victim until Appellee ejaculated. Afterwards,

Appellee drove Victim back to her dormitory residence at Lock Haven

University (“LHU”).1

Police interviewed Appellee on August 28, 2014. Appellee admitted he

had kissed Victim in the car but did not mention any other sexual contact

that occurred in his car. According to Appellee, he and Victim had

consensual sexual contact at Appellee’s residence. Police interviewed

Appellee again on September 3, 2014. During this interview, Appellee

showed police the following text message exchange between Appellee and

Victim after Appellee had driven Victim home:

[Appellee]: Hey, are you okay?

[Victim]: No, I’m not. I did not want to have sex and
you did it anyways even when I said no and stop.

[Appellee]: Baby, I am sorry. I didn’t mean to hurt
____________________________________________

1
The record suggests Appellee and Victim were LHU students.

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you.

(Affidavit of Probable Cause, dated 11/6/14, at 1). Appellee admitted during

this interview that he touched Victim’s breasts when Victim and Appellee

were in the car together, but Appellee denied having touched Victim’s

vagina. Appellee also said Victim had asked her to “go slow” during sexual

intercourse, and Appellee did as asked. Police interviewed Appellee a third

time on October 3, 2014. During this interview, Appellee admitted Victim

told him to stop, once while they were having sex, but Appellee clarified

Victim’s remark was only in reference to how far Appellee was inserting his

penis into her vagina. Appellee initially stated he did as asked but later

admitted inserting his penis into Victim’s vagina farther than she wanted.

The Commonwealth subsequently charged Appellee with rape, aggravated

indecent assault, indecent assault, and sexual assault.2

Procedurally:

This matter was originally scheduled for Jury Selection on
March 3, 2014, but was continued because of a Pretrial
Motion filed by [Appellee] on February 26, 2015. The
newly selected Jury Selection date was Friday, May 8,
2015. On May 7, 2015, the Commonwealth requested that
the Jury Selection be continued…. The Commonwealth’s
request was granted and [Appellee] was scheduled for Jury
Selection on Friday, July 10, 2015. On July 10, 2015, a
Jury was selected and trial was scheduled [for] August 27,
2015 and August 28, 2015.

____________________________________________

2
18 Pa.C.S.A. §§ 3121(a)(1); 3125(a)(1); 3126(a)(1); 3124.1

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On August 27, 2015 at 8:30 A.M., this [c]ourt was alerted
that some pretrial matters needed to be addressed without
the Jury present. This [c]ourt then left Chambers and
conducted a proceeding with the Commonwealth and
[Appellee] in open Court with the Court Reporter present,
but with the Jury not present. [Appellee] made what could
be termed a Motion in Limine at that point [in] time
concerning the testimony of two (2) individuals, Dr. Amy
Cotner, who is employed at [LHU] in Student Affairs and
Emmalynn Borst, who is also an employee at LHU. Both
individuals had some involvement with the University
Judicial Board Hearing involving [Appellee] which occurred
on Monday, October 13, 2014, at LHU. The
Commonwealth desired to enter into evidence at Trial the
testimony of Ms. Borst and Dr. Cotner. [Appellee]
specifically objected to admission into evidence of
[Appellee’s] statement to Ms. Borst, Dr. Cotner and the
LHU Judicial Board[,] that [Appellee] did have
nonconsensual sexual contact with the complaining
witness[,] during the University Judicial Board Hearing.
The Commonwealth also desired to enter into evidence the
decision of the University Judicial Board Hearing.[3]
[Appellee] objected to the admission of said evidence for
numerous reasons.[4]

____________________________________________

3
The decision of the LHU Judicial Board indicated Appellee “pled responsible”
to “sexual misconduct.”
4
Specifically, the Commonwealth offered Dr. Cotner to testify regarding,
inter alia, statements Appellee had made during her interview of him as part
of the LHU administrative process, and Appellee’s decision to “plead
responsible” to violating the “sexual misconduct” section of the LHU student
handbook after consulting with his academic advisor. Dr. Cotner supplied
the Commonwealth on the morning of this pre-trial hearing with a copy of
the LHU student handbook, which contains the definition of “sexual
misconduct” as “nonconsensual sexual contact.” Appellee objected to any
testimony provided by Dr. Cotner or Ms. Borst that Appellee accepted
responsibility for “nonconsensual sexual contact” where, inter alia, the
Commonwealth did not notify the defense it planned to use that terminology
until 11:37 A.M. on August 26, 2015, and had not produced a copy of the
LHU student handbook in discovery.

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During Argument before this [c]ourt, the District Attorney
informed the [c]ourt that the District Attorney had become
aware of this information after the District Attorney initially
had interviewed the two (2) witnesses, Ms. Borst on
August 17, 2015 at 1:00 P.M. and Dr. Cotner on August
25, 2015 at 10:30 A.M. The [c]ourt was further advised
that this information was forwarded to Defense Counsel on
August 26, 2015, less than twenty-four (24) hours before
the beginning of the Jury Trial. This [c]ourt was also
informed that the LHU Judicial Conduct Board Hearing is
required to be recorded, that LHU did record the
proceeding on October 13, 2014, and that LHU then
[accidentally] deleted the recording.

[Appellee] appealed the decision of the LHU Judicial Board
which appeal was denied by LHU based upon a review of
the record. This [c]ourt would note that it was advised
that the record of the LHU proceedings had been destroyed
prior to LHU [appellate] review.

This [c]ourt ruled on August 27, 2015 that the testimony
of Dr. Cotner and Ms. Borst concerning [Appellee’s]
statements at the LHU proceedings and the decision of the
LHU [J]udicial [B]oard were not admissible at Trial.
Thereafter, the Office of District Attorney informed this
[c]ourt that the Commonwealth would appeal said ruling
and desired a continuance of the Jury Trial. This [c]ourt
granted the continuance. The Commonwealth filed [an]
appeal on September 24, 2015.[5]

This [c]ourt directed the Commonwealth to file a
Statement of [Errors] Complained of on Appeal[,] which
the Commonwealth did on October 2, 2015.

____________________________________________

5
The court reduced its verbal order to a written order on September 14,
2015. The Commonwealth filed a notice of appeal pursuant to Pa.R.A.P.
311(d) (stating in criminal cases, Commonwealth may take appeal as of
right from order that does not end entire case where Commonwealth
certifies in notice of appeal that order appealed from will terminate or
substantially handicap prosecution of case). We discuss this concept more
fully later in our disposition.

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(Trial Court Opinion, filed October 9, 2015, at 1-3).

The Commonwealth raises one issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
GRANTED [APPELLEE’S] MOTION IN LIMINE TO EXCLUDE
TESTIMONY RELATED TO ADMISSIONS [APPELLEE] MADE
DURING A UNIVERSITY ADMINISTRATIVE PROCEEDING
BECAUSE THERE WAS NO DISCOVERY VIOLATION AND,
ALTERNATIVELY, THE APPROPRIATE REMEDY WAS THE
GRANT OF A CONTINUANCE?

(Commonwealth’s Brief at 3).

Preliminarily, Appellee asks this Court to quash the Commonwealth’s

appeal, claiming the Commonwealth’s certification pursuant to Rule 311(d)

was not made in good faith. Appellee argues the Commonwealth had

already selected a jury and was prepared to go forward with trial prior to its

interviews with Ms. Borst and Dr. Cotner on August 17, 2015 and August 25,

2015, respectively. Appellee asserts proffered testimony from these

witnesses could not have been “essential” to the Commonwealth’s case

where the Commonwealth was prepared to try the case without it. Appellee

insists the Commonwealth’s certification that the order granting Appellee’s

motion in limine will terminate or substantially handicap the prosecution was

disingenuous. We disagree.

Generally, appellate courts have jurisdiction only over appeals taken

from a final order. Commonwealth v. Scarborough, 619 Pa. 353, 64 A.3d

602 (2013). “However, there are exceptions to this general rule, one of

which is set forth in Rule 311(d)[.]” Commonwealth v. Shearer, 584 Pa.

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134, 140, 882 A.2d 462, 466 (2005). Pennsylvania Rule of Appellate

Procedure 311(d) provides:

Rule 311. Interlocutory Appeals as of Right

* * *

(d) Commonwealth appeals in criminal cases.—
In a criminal case, under the circumstances provided by
law, the Commonwealth may take an appeal as of right
from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the
order will terminate or substantially handicap the
prosecution.

Pa.R.A.P. 311(d). Our Supreme Court has explained:

The roots of the Rule are planted in the fundament of
constitutional law: the Commonwealth has a never shifting
burden to prove each element of the crime charged
beyond a reasonable doubt. Constitutional due process
requires that the government prove every fact necessary
to constitute the crime beyond a reasonable doubt. The
burden of proof never shifts but rests with the prosecution
throughout. It is the continuing presumption of innocence
that is the basis for the requirement that the state has a
never-shifting burden to prove guilt of each essential
element of the charge beyond a reasonable doubt.

When a pretrial motion removes evidence from the
Commonwealth’s case, only the prosecutor can judge
whether that evidence substantially handicaps [her] ability
to prove every essential element of [her] case.
Additionally, only the prosecutor can judge whether [she]
can meet [her] constitutional burden of proving [her] case
without that evidence.

Commonwealth v. Cosnek, 575 Pa. 411, 416-17, 836 A.2d 871, 874-75

(2003) (internal citations and quotation marks omitted).

The classic case of an interlocutory order appealable by the
Commonwealth as of right by such certification is one

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granting a defense motion to suppress evidence. The
certification by an officer of the [c]ourt guards against
frivolous appeals or appeals intended solely for delay. This
Court has held that the Commonwealth’s certification is not
contestable and in and of itself, precipitates and authorizes
the appeal. This Court has since made clear that the
Commonwealth may appeal a pre-trial ruling on a motion
in limine which excludes Commonwealth evidence in the
same manner that it may appeal an adverse ruling on a
suppression motion—i.e., by certification that the order
has the effect of terminating or substantially handicapping
the prosecution.

Commonwealth v. Boczkowski, 577 Pa. 421, 441, 846 A.2d 75, 87

(2004) (holding Commonwealth’s good faith certification included in notice of

appeal that trial court order excluding evidence from Commonwealth’s case-

in-chief would terminate or substantially handicap prosecution was sufficient

to trigger Commonwealth’s right to appeal; Superior Court properly

recognized it was not authorized to contest that certification) (internal

citations, quotation marks, and footnote omitted). A “substantial handicap”

exists whenever the Commonwealth is denied the use of all of its available

evidence. Id. at 441 n.17, 846 A.2d at 87 n.17. See also

Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (1996) (explaining

there is no essential difference between suppression rulings and rulings on

motions in limine to admit or exclude evidence; in both cases, pretrial

rulings are handed down which admit or exclude evidence at trial, and in

both cases, once jury is sworn, Commonwealth may not appeal from adverse

ruling; without immediate right of review, Commonwealth’s case might be so

hampered that it is unable to proceed).

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Instantly, after the court announced its decision on the record to grant

Appellee’s motion in limine, the Commonwealth asked the court to continue

the case so it could appeal the court’s pre-trial ruling. (See N.T. Pre-trial

Hearing, 8/27/15, at 28; R.R. at 34a.) During the court’s subsequent

exchange with the District Attorney, defense counsel stated: “Judge, if I can

jump in, I believe she has the right to appeal. I don’t think I would oppose

it.” (Id.) Thereafter, the court released the jurors, cancelled the jury trial,

and rescheduled jury selection. On September 24, 2015, the

Commonwealth filed its notice of appeal stating: “The Commonwealth

certifies that the aforesaid Order will terminate or substantially handicap the

prosecution.” (See Notice of Appeal, filed September 24, 2015, at 1.)

Because the court’s order granting Appellee’s motion in limine deprived the

Commonwealth of an opportunity to proceed at trial with all of its available

evidence, the District Attorney’s certification that the order will terminate or

substantially handicap the prosecution was sufficient to trigger the

Commonwealth’s right to appeal. See Pa.R.A.P. 311(d); Boczkowski,

supra; Cosnek, supra; Gordon, supra. Thus, there are no jurisdictional

impediments to our review; and we will address the merits of the

Commonwealth’s issue.

The Commonwealth argues it provided Appellee a discovery packet on

or about May 19, 2015, containing all documents the Commonwealth had

obtained from LHU regarding the administrative proceeding. The

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Commonwealth asserts the discovery packet included a “summary” from the

administrative hearing indicating Appellee accepted responsibility for sexual

misconduct. The Commonwealth claims defense counsel conceded he

received a copy of that summary. The Commonwealth insists Appellee’s

acceptance of responsibility for engaging in sexual misconduct is the

substance of the inculpatory statement Appellee made to Ms. Borst and Dr.

Cotner, and about which those witnesses would testify. The Commonwealth

maintains defense counsel confirmed he knew Ms. Borst was a potential

witness. The Commonwealth acknowledges it originally thought Ms. Borst

had interviewed Appellee as part of the administrative proceeding but

learned only ten days prior to trial during witness preparation that Dr.

Cotner actually conducted the interview. The Commonwealth contends it

notified defense counsel promptly, via e-mail, that the Commonwealth would

issue a subpoena for Dr. Cotner. The Commonwealth explains it was unable

to produce a recording of the administrative hearing because the recording

was accidentally deleted by LHU prior to the filing of the criminal complaint

in this case. The Commonwealth submits it did not violate the discovery

rule, where it produced all information in the Commonwealth’s possession

regarding Appellee’s inculpatory statements in connection with the LHU

administrative proceeding, and promptly disclosed to Appellee additional

relevant evidence it learned from Ms. Borst and Dr. Cotner as soon as the

Commonwealth received that information.

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Even if it violated the discovery rule, the Commonwealth insists the

appropriate remedy was to grant a short continuance. The Commonwealth

highlights that the rules of criminal procedure do not dictate a deadline for

conducting witness interviews. The Commonwealth claims it had no

improper motive in conducting interviews with Ms. Borst and Dr. Cotner

when it did. The Commonwealth submits any potential prejudice to Appellee

could have been cured by a short continuance.6 The Commonwealth

concludes the court abused its discretion by granting Appellee’s oral motion

in limine to preclude the testimony at trial of Ms. Borst and Dr. Cotner,

regarding inculpatory statements Appellee made in connection with the LHU

administrative proceeding, and this Court must reverse.7 We disagree.

The relevant standard of review in this case is as follows:

In evaluating the denial or grant of a motion in limine, our
standard of review is well-settled. When ruling on a trial
court’s decision to grant or deny a motion in limine, we
____________________________________________

6
The Commonwealth also suggests the trial court’s decision might have
been clouded by frustration the court had with the former District Attorney,
as evidenced by statements in the court’s Rule 1925(a) opinion. The court
stated in its Rule 1925(a) opinion that, based on the court’s prior
interactions with the former District Attorney in this case, the court urged
this Court to seriously consider whether the Commonwealth’s certification
under Rule 311(d) was made in good faith. Because the court’s comments
pertained solely to the jurisdictional issue, which we have already discussed,
we give this claim no further attention.
7
The Commonwealth does not challenge on appeal the portion of the court’s
order excluding it from introducing the decision of the LHU Judicial Board
indicating Appellee “pled responsible” to “sexual misconduct.” (See
Commonwealth’s Brief at 6 n.3).

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apply an evidentiary abuse of discretion standard of
review. A trial court has broad discretion to determine
whether evidence is admissible, 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. If the
evidentiary question is purely one of law, our review is
plenary.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa.Super. 2014)

(internal citations and quotation marks omitted). Our scope of review in

cases where the trial court explains the basis for its evidentiary ruling is

limited to an examination of the stated reason. Commonwealth v.

Stephens, 74 A.3d 1034, 1037 (Pa.Super. 2013). “We must also be

mindful that a discretionary ruling cannot be overturned simply because a

reviewing court disagrees with the trial court’s conclusion.”

Commonwealth v. O’Brien, 836 A.2d 966, 968 (Pa.Super. 2003), appeal

denied, 577 Pa. 695, 845 A.2d 817 (2004) (internal citation and quotation

marks omitted).

Pennsylvania Rule of Criminal Procedure 573 provides, in pertinent

part, as follows:

Rule 573. Pretrial Discovery and Inspection

* * *

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant’s attorney

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all of the following requested items or information,
provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the
defendant’s attorney to inspect and copy or photograph
such items.

* * *

(b) any written confession or inculpatory
statement, or the substance of any oral confession or
inculpatory statement, and the identity of the person to
whom the confession or inculpatory statement was
made that is in the possession or control of the attorney
for the Commonwealth;

* * *

(D) Continuing Duty to Disclose. If, prior to or
during trial, either party discovers additional evidence or
material previously requested or ordered to be disclosed
by it, which is subject to discovery or inspection under this
rule, or the identity of an additional witness or witnesses,
such party shall promptly notify the opposing party or the
court of the additional evidence, material, or witness.

(E) Remedy. If at any time during the course of the
proceedings it is brought to the attention of the court that
a party has failed to comply with this rule, the court may
order such party to permit discovery or inspection, may
grant a continuance, or may prohibit such party from
introducing evidence not disclosed, other than testimony of
the defendant, or it may enter such other order as it
deems just under the circumstances.

* * *

Pa.R.Crim.P. 573(B)(1)(b), (D), (E). “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. Manchas, 633 A.2d 618, 625 (Pa.Super.

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1993), appeal denied, 539 Pa. 647, 651 A.2d 535 (1994) (internal citations

omitted). “When a party has failed to comply with Rule [573(B)(1)], the

trial court has broad discretion in choosing an appropriate remedy.” Id.

(internal citation omitted).

Instantly, the trial court addressed the Commonwealth’s issue on

appeal as follows:

[T]his [c]ourt has attempted to manage under difficult
circumstances the trial docket in its judicial district. As
President Judge, this [c]ourt has attempted to dispose of
cases promptly. This case was continued twice to finally
selecting a jury on July 10, 2015, only to have the
Commonwealth notify Defense Counsel on the eve of Trial
that the Commonwealth intended to offer two (2)
witnesses that would indicate that [Appellee] basically
confessed to the alleged crimes. This [c]ourt notes once
again that the Commonwealth did not interview these
witnesses until August 17, 2015 and August 25, 2015.[8]

Due to the lack of due diligence of the Commonwealth and
the clear lack of fairness in advising [Appellee] of these
two (2) witnesses; i.e., Dr. Cotner and Ms. Borst, and the
alleged testimony of these witnesses on the very eve of
Trial, this [c]ourt would not permit this testimony to be
offered to the Jury.

The Commonwealth may argue that this [c]ourt committed
error by simply not continuing this matter to the next trial
term. The remedy suggested by the Commonwealth
simply rewards the Commonwealth for lack of due
diligence in preparing the case for trial or as [Appellee]
could argue[,] intentionally ambushing [Appellee] with
[Appellee’s] alleged confession without any time to
respond and/or investigate. This [c]ourt declines to

____________________________________________

8
Trial was scheduled for August 27-28, 2015.

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reward the Commonwealth or permit these actions to
become commonplace in this [c]ourt’s judicial district.

(Trial Court Opinion at 4-5). We see no reason to disrupt the court’s

decision. See Belani, supra; Stephens, supra; O’Brien, supra;

Manchas, supra.

The record shows the Commonwealth sent defense counsel a discovery

packet in May 2015 containing all documents the Commonwealth had

obtained from LHU regarding the administrative proceeding, which took

place on October 13, 2014.9 The discovery packet included, inter alia, a

“summary” from the administrative hearing indicating Appellee “pled

responsible” to “sexual misconduct.” Significantly, the discovery packet did

not include the LHU student handbook defining “sexual misconduct” as

“nonconsensual sexual contact.” The Commonwealth did not obtain a copy

of the LHU student handbook or make it available to the defense until the

morning of the pre-trial conference on August 27, 2015, after the parties

had already selected a jury and the case was otherwise ready to begin

Appellee’s jury trial. Additionally, the discovery packet contained references

____________________________________________

9
Notably, none of the items from the LHU administrative proceeding is
included in the certified record, so our review of these documents is limited
to their discussion at the pre-trial hearing on August 27, 2015. See
Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa.Super. 2006) (en
banc), appeal denied, 591 Pa. 688, 917 A.2d 844 (2007) (stating: “Our law
is unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty”).

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to Ms. Borst’s and Dr. Cotner’s involvement in the LHU administrative

proceeding, but the Commonwealth previously had identified only Ms. Borst

as a potential trial witness. More importantly, the Commonwealth did not

interview these witnesses until August 17, 2015 and August 25, 2015,

respectively, which was more than one month after the jury had been

selected and was on the eve of trial. Due to the late timing of the

Commonwealth’s interviews with Dr. Cotner and Ms. Borst, the

Commonwealth did not inform the defense until 11:37 A.M. on August 26,

2015 (the day before trial was set to begin), that the Commonwealth

intended to offer testimony from these two witnesses regarding inculpatory

statements Appellee had made in connection with the administrative

proceeding, including Appellee’s acceptance of responsibility for

“nonconsensual sexual contact.” Under these circumstances, we will not

disturb the court’s decision to grant Appellee’s motion in limine and preclude

the Commonwealth from offering this testimony at trial. See Pa.R.Crim.P.

573(B)(1)(b); (E); Manchas, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2016

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