Com. v. Tucker, H.

J. S25040/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
HOWARD DEMETRIUS TUCKER, : No. 962 EDA 2016
:
Appellant :

Appeal from the Judgment of Sentence, March 2, 2016,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0009299-2012

BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2017

Howard Demetrius Tucker appeals from the judgment of sentence of

March 2, 2016, following his conviction of various sexual offenses involving

three separate victims over the same three-month time period. Each of the

victims was assaulted at Central Montgomery County Mental Health and

Mental Retardation Center (“Central”), where appellant was employed as a

team leader of the certified peer specialists. Two of the victims were clients

of Central, and the third was a job applicant being interviewed by appellant.

All of them had experienced prior sexual abuse as children. As described

infra, appellant used his position of authority and trust to sexually assault

the emotionally vulnerable female victims. On appeal, appellant challenges

the sufficiency of the evidence to sustain his conviction of rape by forcible

compulsion and raises other issues including denial of his pre-trial motion to
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sever. After careful review, we affirm. We caution the reader that the

details of the sexual assaults are necessarily factually graphic due to the

specific issues presented by appellant.

At trial the following facts were established.
Victim D.J.[1] had been receiving services from
[Central] located in Norristown, Montgomery County
during the relevant time period. D.J. has a history of
mental illness and childhood sexual abuse. Because
of the childhood sexual abuse she suffered, she had
gone to Central as a child. She stopped going, but
returned there for rape trauma as an adult for
counseling and drug and alcohol treatment.

D.J. first met [appellant] in 2011. He asked
her many questions, wanted to know her background
and why she was coming to Central. He inquired as
to what groups at Central D.J. was attending.
During the course of that conversation, it came out
that D.J. had been sexually molested as a child.

Not long after their first meeting, D.J. saw
[appellant] at Central while she was there for her
regular therapy sessions. She saw him in the
hallway, and [appellant] asked her to come to his
office for the purpose of helping her with job seeking
activities. Once in his office, [appellant] shut the
door. That day, D.J. was wearing religious
overgarments, and [appellant] said they look nice
and that he wanted to see what was under them.
D.J. leaned on [appellant]’s desk to see the papers
he wanted her to look at. [Appellant] was behind
D.J., rubbing against her buttocks. D.J. testified that
he was so close to her that she could feel that he
had an erection. D.J. tried to get out of [appellant]’s
office, but it was locked. [Appellant] unlocked it,
and she was able to get away.

About a week later, D.J. saw [appellant] in the
hallway at Central. [Appellant] told D.J. that he

1
We will use the victims’ initials to protect their identities.

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wanted to talk to her, saying that he had a surprise
for her. D.J. was reluctant to follow him but
[appellant] persisted and she relented. [Appellant]
shut the door and locked it. D.J. was seated in a
chair and [appellant] sat in a chair next to hers.
[Appellant] took out his penis from his pants. D.J.
was [sic] felt empty, scared and shocked.
[Appellant] said, “You know you want this” and told
her to kiss his penis. D.J. responded, “That’s just for
my husband.” That didn’t stop [appellant]’s
persistence. He took D.J.’s hand and placed it on his
penis. D.J. testified that his penis was long, brown
and erect. Next, [appellant] took his hands and
placed them on the back of D.J.’s head and forced
her head down and his penis into her mouth.
[Appellant] thrusted his pelvis back-and-forth, stood
up and ejaculated. As soon as it was over, D.J. got
out of [appellant]’s office.

The fourth time D.J. saw [appellant] at Central
was in the hallway again. He called her over telling
her that he wanted to talk and show her some list in
his office. [Appellant] ushered D.J. into his office.
Back in the office, [appellant] once again closed and
locked the door. [Appellant] grabbed D.J. from
behind by putting his arms around her waist, rubbing
his erect penis against her buttocks. He pulled up
her religious overgarments, under which D.J. was
wearing her underwear. [Appellant] bent her over
his desk and penetrated her vagina from behind. It
ended when [appellant] ejaculated inside of D.J.

The fifth time D.J. came into contact with
[appellant] was when he pulled her out of one of her
therapy groups. Telling D.J. that he had some
papers for her in his office regarding places for her to
live since she was homeless, she went with him.
Again [appellant] closed and locked his door. With
D.J.’s back against the door, [appellant] leaned his
body, from his chest down to his pelvis, up against
her and was grinding on her. D.J. tried to push
[appellant] away with her broken wrist while she

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tried to get out of the door.[2] [Appellant] put his
hand on the back of D.J.’s head and pushed his penis
into her mouth. Next, [appellant] bent D.J. over,
pulled her underwear to the side and put his penis in
her vagina where he ejaculated.

On October 27, 2011, D.J. ultimately told
someone at Central what [appellant] did. The police
were called and D.J. gave a statement.

Trial court opinion, 6/8/16 at 3-5 (citations to the transcript omitted).

L.H. testified that she was also receiving services from Central,

including housing assistance. (Notes of testimony, 3/23/15 at 80.) Like

D.J., L.H. was also the victim of childhood sexual assault. (Id.) L.H. was

being treated for major depression. (Id. at 30-31, 79.)

L.H. testified that in mid-July 2011, she was at Central for an

appointment when appellant approached her in the lobby. (Id. at 86.)

Appellant informed her that the staff members with whom she had the

appointment were unavailable and directed her into his office. (Id. at

86-87.) L.H. testified that appellant told her a woman her age was at her

“sexual peak” and “could handle him.” (Id. at 91.) Appellant pulled his

chair closer to hers and said, “touch it.” (Id. at 91-92.) L.H. looked down

and saw that appellant had pulled his erect penis out of his pants. (Id. at

92.) L.H. described it as “very large, very long.” (Id. at 95.) Appellant

2
D.J. testified that she had a broken left wrist and did not have full use of
her arm at that time. (Notes of testimony, 3/24/15 at 205.) She had a soft
cast on her arm. (Id.)

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took her hand and placed it on his penis, making a rubbing motion. (Id. at

94.) L.H. testified that she was in shock and did not know what to do. (Id.)

At this point, appellant stood up and shoved his penis into L.H.’s

mouth, telling her that, “he thought I could handle his penis.” (Id. at 95.)

Appellant shoved his penis down L.H.’s throat and she started gagging.

(Id.) Appellant put his hands on her shoulders and was thrusting his penis

in and out of her mouth, “in a manner similar to having intercourse.” (Id.)

Appellant finally ejaculated into L.H.’s mouth and wiped himself off with a

paper towel. (Id. at 96-97.) Appellant told L.H. not to tell anyone and that

“this is our secret.” (Id. at 97.) L.H. testified that she did not consent to

appellant shoving his penis into her mouth and that the office door was

locked. (Id. at 97-98.) L.H. testified that she did not tell anyone about the

incident because she was embarrassed and afraid no one would believe her.

(Id. at 98-99.)

At the beginning of August 2011, L.H. returned to Central for another

appointment with a certified peer specialist. (Id. at 99.) Her appointment

was not with appellant. (Id. at 100.) Again, as she sat in the reception

area, appellant came out of his office, put his arm around L.H.’s shoulders

and walked her into his office, shutting the door and locking it. (Id.)

However, in an attempt to stave off another assault, L.H. showed appellant

the bruises she had from her abusive boyfriend, and appellant took her to

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see the certified peer specialists to try to find her a shelter to stay in that

night. (Id. at 100-101.)

Later in August, L.H. returned to Central for an appointment with a

psychiatrist. (Id. at 101.) As L.H. waited in the lobby, appellant

approached her and told her to come into his office. (Id. at 102.) L.H.

informed appellant that she was waiting for her appointment with the

psychiatrist, Dr. Sierra. (Id.) Appellant then instructed the receptionist to

call his office when Dr. Sierra was available, that L.H. would be in his office.

(Id.) Appellant then took L.H. into his office, closed the door, and locked it.

(Id. at 102-103.) Appellant put his hands on L.H.’s shoulders and forced

her down to the ground on her knees. (Id. at 106.) L.H. testified that it

hurt because she has degenerative arthritis in her right knee. (Id.)

Appellant proceeded to unzip his pants, remove his erect penis, and

shove it down L.H.’s throat. (Id. at 107.) L.H. testified that she was

gagging and could not breathe. (Id.) While appellant was shoving his penis

down L.H.’s throat, he had both hands positioned on the back of her head.

(Id.) Again, L.H. testified that appellant was thrusting his pelvis as though

having intercourse. (Id. at 107-108.) L.H. was unable to move her head or

speak. (Id. at 108.) L.H. tried to push appellant away with her hand

against his leg, but was unsuccessful. (Id.) Eventually, appellant

ejaculated inside of L.H.’s mouth and wiped himself off with a towel. (Id. at

109.) At the same time, the phone rang and appellant answered it. (Id.)

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The receptionist was calling to say that Dr. Sierra was ready to see L.H.

(Id.) Appellant told L.H. that “this is our secret,” and not to tell anyone,

that he could lose his job. (Id. at 110-111.) Appellant gave L.H. some

water and a paper towel and escorted her out of his office. (Id. at

109-110.)

Later, L.H. returned to Central to seek alternative housing because of

her abusive relationship with her boyfriend. (Id. at 112.) Again, as she

waited in the reception area for her appointment, appellant came up to her

and put his arm around her and guided her into his office. (Id. at 113.)

Appellant closed the office door and locked it. (Id. at 114.) Appellant

directed L.H. to sit in his chair. (Id.) L.H. testified that appellant was

touching her arms as he guided her into the chair. (Id. at 115.) Appellant

then unzipped his pants and pulled out his erect penis. (Id. at 114-115.)

Appellant shoved his penis into L.H.’s mouth while his hands were placed on

top of her shoulders. (Id. at 115-116.) At some point, he withdrew his

penis from her mouth, stood her up and turned her around, trying to

unbutton her jeans in the same motion. (Id. at 116.) L.H. realized that

appellant intended to have sexual intercourse with her, at which time she

pushed him away. (Id. at 117.) L.H. testified that somehow she was able

to get out of his office and she left. (Id.) L.H. testified that she did not

consent to any of appellant’s actions, verbally or non-verbally. (Id. at

118-119.)

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After this third assault, L.H. testified that she avoided going to Central

and kept canceling her appointments. (Id. at 119.) Eventually, two of

Central’s employees, Valarie O’Connor and Karleen Caparro, drove out to

L.H.’s house. (Id. at 120.)3 They took L.H. to a nearby diner where she

disclosed what appellant had done to her. (Notes of testimony, 3/23/15 at

121.) L.H explained that is why she had been canceling her appointments at

Central. (Id.)

Like appellant’s two other victims, S.T. was also molested as a child.

(Notes of testimony, 3/25/15 at 15.) S.T. had been molested by her uncle

and her brother. (Id.) S.T. was seeking to become a certified peer

specialist, and a friend told her about the program at Central. (Id. at 7,

11.) Appellant gave S.T. an employment application to fill out, and she

returned to Central the following day with the completed application. (Id. at

11-12.) While she was waiting at the front desk, appellant came out and

told S.T. to come into his office. (Id. at 12.) Once inside, appellant closed

the door. (Id. at 13.) Appellant questioned S.T. about her past, and S.T.

finally revealed that she had been sexually molested by her uncle and her

brother. (Id. at 14-15.) Appellant pressed S.T. for details. (Id. at 16.)

S.T. said that she had been raped. (Id.) S.T. explained that when she was

3
Caparro was a certified peer specialist, and O’Connor was the operations
coordinator. (Notes of testimony, 3/23/15 at 18; 3/24/15 at 71.) At time of
trial, O’Connor was the president and CEO of Central. (Notes of testimony,
3/24/15 at 70-71.)

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five years old, she was playing with her dolls when her uncle pulled down

her pants and got on top of her. (Id.) Appellant responded, “That’s not

being raped. That’s being molested.” (Id.) Appellant volunteered that he

had also been molested by his aunt, a babysitter, and a cousin. (Id. at 15.)

At that point, appellant stated, “Well, I can show you why I was

molested.” (Id. at 17.) Appellant rolled his chair around and exposed his

erect penis through the zipper of his pants. (Id. at 17-18.) Appellant told

S.T. to “touch it,” but she refused. (Id. at 19.) Appellant reached over and

locked the office door, and S.T. testified that she was thinking, “Oh, my God,

how am I going to get out of this?” (Id.) Appellant grabbed S.T.’s hand and

tried to get her to touch his penis. (Id. at 20.) S.T. testified that she

wanted to leave but the door was locked. (Id. at 19.) In an effort to get

appellant to stop, S.T. told him that they should go to a hotel. (Id. at

19-21.) S.T. figured that maybe if she said they could go to a hotel, he

would stop and let her leave. (Id. at 21.) Appellant replied, “That sounds

good,” and put his penis back in his pants. (Id.) When she got home,

appellant called her and asked when they were going to the hotel. (Id. at

22.) S.T. responded that she was married and asked appellant what he was

doing. (Id.) S.T. reported the incident to a manager at Central and later

contacted authorities. (Id. at 26.) Eventually, appellant was fired from

Central as a result of his sexual misconduct. (Notes of testimony, 3/24/15

at 91.) None of the three victims, S.T., D.J., and L.H., knew each other

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prior to these incidents. (Notes of testimony, 3/23/15 at 123-124; 3/24/15

at 214; 3/25/15 at 30-31.)

All three cases were joined for trial; appellant’s pre-trial motion to

sever was denied. Following a five-day jury trial, appellant was found guilty

of one count of rape by forcible compulsion, two counts of involuntary

deviate sexual intercourse (“IDSI”) by forcible compulsion, two counts of

sexual assault, two counts of indecent assault, and one count of criminal

attempt to commit indecent assault.4 On March 2, 2016, appellant received

an aggregate sentence of 25 to 62 years’ incarceration. This timely appeal

followed. Appellant has complied with Pa.R.A.P. 1925(b), and the trial court

has filed a Rule 1925(a) opinion.

Appellant has raised the following issues for this court’s review:

I. Was the evidence sufficient to sustain
appellant’s convictions for rape by forcible
compulsion and [IDSI] where the
Commonwealth’s evidence failed to establish
that appellant used physical force, the threat
of physical force or psychological coercion
while committing the alleged acts of sexual
intercourse?

II. Did the trial court err in failing to permit
appellant to cross-examine complainant [L.H.]
about the fact that she had previously filed a
lawsuit against a psychologist for engaging in
inappropriate sexual behavior with her?

III. Did the trial court violate appellant’s right of
confrontation when it prevented his attorney

4
18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(1), and 901(a),
respectively.

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from cross-examining [D.J.] after she testified
at appellant’s sentencing hearing?

IV. Did the trial court err in denying appellant’s
pre-trial motion to sever the cases against him
involving three separate complainants?

Appellant’s brief at 5 (capitalization deleted).

In his first issue on appeal, appellant argues that the evidence was

insufficient to prove the element of forcible compulsion.5 Appellant argues

that he did not use physical force or psychological coercion to compel his

victims to engage in sexual activity. We disagree.

The Crimes Code defines rape, in relevant part, as follows:

(a) Offense defined.--A person commits a felony
of the first degree when the person engages in
sexual intercourse with a complainant:

(1) By forcible compulsion.

(2) By threat of forcible compulsion
that would prevent resistance by a
person of reasonable resolution.

18 Pa.C.S.A. § 3121(a).

In reviewing sufficiency of evidence claims, we must
determine whether the evidence admitted at trial,

5
In his Rule 1925(b) statement, appellant limited his argument to the rape
conviction. (Rule 1925(b) statement, 5/4/16 at 1 ¶1; docket #53.)
Therefore, appellant’s argument that the evidence was also insufficient to
prove IDSI is waived on appeal. Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.Super. 2009), appeal
denied, 990 A.2d 729 (Pa. 2010) (“to preserve their claims for appellate
review, [a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
[Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be
deemed waived.” (citations omitted)).

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and all reasonable inferences drawn therefrom, when
viewed in the light most favorable to the verdict
winner, are sufficient to support all the elements of
the offense. Commonwealth v. Bullick, 830 A.2d
998, 1000 (Pa.Super. 2003). Additionally, to sustain
a conviction, the facts and circumstances which the
Commonwealth must prove, must be such that every
essential element of the crime is established beyond
a reasonable doubt. Commonwealth v. Hargrave,
745 A.2d 20, 22 (Pa.Super. 2000), appeal denied,
563 Pa. 683, 760 A.2d 851 (2000). Admittedly, guilt
must be based on facts and conditions proved, and
not on suspicion or surmise. Commonwealth v.
Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173
(1994). However, entirely circumstantial evidence is
sufficient so long as the combination of the evidence
links the accused to the crime beyond a reasonable
doubt. See id.; see also Commonwealth v.
Chmiel, 536 Pa. 244, 247, 639 A.2d 9, 11 (1994).

Commonwealth v. Eckrote, 12 A.3d 383, 385-386 (Pa.Super. 2010).

Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. See Commonwealth v. DiStefano,
782 A.2d 574, 582 (Pa.Super. 2001), appeal
denied, 569 Pa. 716, 806 A.2d 858 (2002). The
fact finder is free to believe all, part, or none of the
evidence presented at trial. See Commonwealth
v. Nicotra, 425 Pa.Super. 600, 625 A.2d 1259, 1261
(1993).

Id. at 386.

It is well-established that in order to prove the
“forcible compulsion” component, the
Commonwealth must establish, beyond a reasonable
doubt, that the defendant “used either physical
force, a threat of physical force, or psychological
coercion, since the mere showing of a lack of consent
does not support a conviction for rape . . . by forcible
compulsion.” Commonwealth v. Brown, 556 Pa.

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131, 136, 727 A.2d 541, 544 (1999). In
Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d
1217 (1986), our Supreme Court stated that forcible
compulsion includes “not only physical force or
violence, but also moral, psychological or intellectual
force used to compel a person to engage in sexual
intercourse against that person’s will.” Rhodes, 510
Pa. at 555, 510 A.2d at 1226. Further, the degree of
force required to constitute rape is relative and
depends on the facts and particular circumstances of
a given case. Commonwealth v. Ruppert, 397
Pa.Super. 132, 579 A.2d 966, 968 (1990), appeal
denied, 527 Pa. 593, 588 A.2d 914 (1991). See
Pennsylvania Benchbook on Crimes of Sexual
Violence, Ch. 2, pg. 27 (2d Edition 2009).

Id. at 387.

Whether a defendant did or did not resort to forcible
compulsion [§ 3121(1)] or the threat of forcible
compulsion sufficient to prevent resistance by a
person of reasonable resolution [§ 3121(2)] is a
determination to be made in each case based upon
the totality of the circumstances.

Significant factors to be weighed in that
determination would include the
respective ages of the victim and the
accused, the respective mental and
physical conditions of the victim and the
accused, the atmosphere and physical
setting in which the incident was alleged
to have taken place, the extent to which
the accused may have been in a position
of authority, domination or custodial
control over the victim, and whether the
victim was under duress. This list of
possible factors is by no means
exclusive.

Commonwealth v. Titus, 556 A.2d 425, 427 (Pa.Super. 1989), quoting

Rhodes, 510 A.2d at 1226.

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The charge of rape by forcible compulsion related to the allegations

involving D.J. (Criminal Information, 2/11/13 at 1; docket #3.) As

described above, D.J. testified that on each of the four separate occasions

that she was assaulted by appellant, he locked the door to his office. (Notes

of testimony, 3/24/15 at 178, 182, 193, 202.) During the second incident,

appellant grabbed D.J.’s hand and placed it on his penis. (Id. at 187.) He

also had both hands on the back of her head as he forced his penis into her

mouth. (Id. at 188.)

During the third incident, appellant pulled up D.J.’s overgarments,

bent her over the desk, and entered her from behind. (Id. at 194.) D.J.

testified that it was painful. (Id. at 196.) During the fourth and final

assault, D.J. testified that appellant was grinding against her while her back

was to the office door. (Id. at 202.) D.J. testified that part of the door was

sticking into her back and it hurt. (Id. at 203.) D.J. tried to push him away,

but was unable to because she had a broken wrist and did not have her full

strength. (Id. at 205.) Appellant then proceeded to force his penis into

D.J.’s mouth before penetrating her vaginally from behind. (Id. at 208-

209.) Therefore, appellant’s argument that he did not use any physical force

is not supported by the testimony.

Furthermore, the jury could reasonably find that appellant used

psychological force to compel D.J. to engage in sexual intercourse. As the

trial court observed, D.J. was an emotionally vulnerable woman with a

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history of childhood sexual abuse. (Trial court opinion, 6/8/16 at 8.)

Appellant knew that D.J. had been sexually abused as a child from age five

until age twelve. (Notes of testimony, 3/24/15 at 173.) D.J. was also

unemployed and looking for work. (Id. at 171.) Appellant told D.J. that she

had potential and that he was going to get her a job and help get her life

back together. (Id. at 173.) D.J. described appellant as charismatic. (Id.)

Appellant would lure her into his office with promises to help improve her

resume or find her suitable housing. (Id. at 174-175, 201.)

Ultimately, appellant used his position of trust and authority to take

advantage of the weak and fragile victim. Appellant was supposed to help

D.J., and instead he repeatedly sexually assaulted her. D.J. testified that

she never went to Central for the purpose of meeting with appellant. (Id. at

180.) All of her appointments were with other people. (Id.) Appellant

would find her in the lobby or in the hallway and take her into his office,

close and lock the door, and then sexually assault her. (Id. at 174-175,

181, 192.) The fourth time, appellant actually pulled her out of her

“rape group,” ostensibly to show her some papers related to finding a place

to live. (Id. at 200-201.) Appellant then proceeded to rape the victim

orally and vaginally. (Id. at 208-209.) D.J. testified that she said “no” and

tried to escape and push him away, to no avail. (Id. at 204-206.) D.J.

testified that she “felt really stupid” and wanted to kill herself. (Id. at 207,

209.) This was sufficient for the jury to conclude that appellant used both

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physical and psychological coercion to force the victim, D.J., to engage in

sexual intercourse. Appellant’s sufficiency claim fails.

Next, appellant complains that he should have been permitted to

question L.H. about an alleged prior lawsuit she filed against a psychologist

for inappropriate sexual contact which resulted in a settlement. Appellant

claims that the fact L.H. filed a prior lawsuit on similar grounds went to

improper motive and credibility. The trial court denied permission to pursue

this line of questioning as appellant failed to comply with the procedural

requirements of the Rape Shield Law. Furthermore, the trial court

determined that the matter was irrelevant. (Notes of testimony, 3/24/15 at

44-47.)

Pennsylvania’s Rape Shield Law, 18 Pa.C.S.A. § 3104, provides as

follows:

(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
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.

(b) Evidentiary proceedings.--A defendant who
proposes to offer evidence of the alleged
victim’s past sexual conduct pursuant to
subsection (a) shall file a written motion and
offer of proof at the time of trial. If, at the
time of trial, the court determines that the

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motion and offer of proof are sufficient on their
faces, the court shall order an in camera
hearing and shall make findings on the record
as to the relevance and admissibility of the
proposed evidence pursuant to the standards
set forth in subsection (a).

18 Pa.C.S.A. § 3104.

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. (footnote omitted).

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.

Burns, 988 A.2d at 690.

If, as the trial court found, the proposed evidence that L.H. had filed a

previous lawsuit against a mental health professional claiming sexual assault

implicated the Rape Shield Law, then the issue was waived for counsel’s

failure to file a written motion and offer of proof prior to trial. Burns, 988

A.2d at 690 (“We have repeatedly stated that a defendant who desires to

introduce evidence of the victim’s prior sexual conduct must file a written

motion and make a specific offer of proof prior to trial.” (citations omitted)).

Appellant did not raise the issue until the second day of trial, during his

cross-examination of L.H. (Notes of testimony, 3/24/15 at 44.)

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Appellant argues that the proffered evidence goes to bias and

improper motive. According to appellant, it demonstrates a pattern of suing

mental health professionals alleging inappropriate sexual conduct for

financial gain. (Id.) The Rape Shield Law may not be used to exclude

relevant evidence showing a witness’ bias, motive to fabricate, or attacking

credibility. In addition, there is authority for the proposition that evidence

that the victim was subject to a previous sexual assault does not reflect

upon the victim’s reputation for virtue or chastity and is not the victim’s own

conduct, and therefore, the Rape Shield Law does not apply.

Commonwealth v. Holder, 815 A.2d 1115, 1118 (Pa.Super. 2003),

appeal denied, 827 A.2d 430 (Pa. 2003); Commonwealth v. Johnson,

638 A.2d 940 (Pa. 1994). Whether L.H. was a plaintiff in a prior lawsuit

alleging sexual assault does not call her chastity into question.

That does not end the inquiry, however, because the trial court also

excluded the evidence on the basis that it was a collateral issue and

irrelevant. (See trial court opinion, 6/8/16 at 12 (“. . . [L.H.]’s previous

lawsuit claiming sexual assault against a mental health professional, i.e., a

past accusation[] against a third part[y] is collateral; it does not bear on the

ultimate question, which was whether [appellant] sexually assaulted the

victim.”).) On this point, we agree. Even if L.H. had filed a previous lawsuit

against another mental health professional alleging sexual misconduct, it

would not make it more or less likely that appellant committed the offenses

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charged. See Holder, 815 A.2d at 1119-1120 (evidence was properly

excluded as irrelevant and collateral because a previous allegation that a

third party sexually assaulted the victim did not bear directly on whether or

not appellant did); Pa.R.E. 402. The issue, therefore, was collateral; and

L.H. could not be impeached with it. Id. at 1120.6

Next, appellant complains that he was not permitted to cross-examine

D.J. at sentencing. Appellant argues that this was in violation of his

constitutional right of confrontation. We disagree.

The Crime Victims Act, 18 P.S. § 11.101 et seq., gives victims of

crime the right to submit an oral and/or written victim impact statement at

sentencing:

Victims of crime have the following rights:

To have opportunity to offer prior
comment on the sentencing of a
defendant or the disposition of a
delinquent child, to include the
submission of a written and oral victim
impact statement detailing the physical,
psychological and economic effects of the
crime on the victim and the victim’s
family. The written statement shall be
included in any predisposition or
presentence report submitted to the
court. Victim-impact statements shall be
considered by a court when determining
the disposition of a juvenile or sentence
of an adult.

6
There was testimony at trial that L.H. had filed a civil lawsuit against
Central and appellant and that the matter settled out of court. (Notes of
testimony, 3/23/15 at 81-82; 3/24/15 at 42-43.)

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J. S25040/17

18 P.S. § 11.201(5).

At sentencing, D.J. read a prepared statement into the record. (Notes

of testimony, 3/2/16 at 34-37.) The Commonwealth did not ask D.J. any

questions. (Id.) The trial court indicated that if the Commonwealth asked

D.J. any questions, appellant would be permitted to cross-examine. (Id. at

34.) However, since D.J. simply read from her written statement, the trial

court denied appellant’s request to examine the witness. (Id. at 37-38.)

Appellant has cited no authority for the proposition that when a victim

of a crime chooses to read a prepared victim impact statement into the

record at the defendant’s sentencing and is not asked any questions by the

Commonwealth, the defendant has a right to examine the victim, nor is this

court aware of any. As the trial court remarked, D.J. could have simply

submitted her victim impact statement in writing, and there would be no

opportunity for cross-examination under such circumstances. (Trial court

opinion, 6/8/16 at 12.) This claim fails.7

Finally, appellant contends that the trial court abused its discretion in

denying his motion to sever the offenses.

Whether to join or sever offenses for trial is within
the trial court’s discretion and will not be reversed on
appeal absent a manifest abuse thereof, or prejudice

7
At any rate, it appears that appellant wanted to question D.J. about her
statement that she now has a criminal record. (Notes of testimony, 3/2/16
at 36.) Appellant claimed that this statement “opened up the door” to
questioning. (Id. at 37-38.) The Commonwealth then stipulated to the fact
that D.J. was on probation for retail theft and possession of a controlled
substance. (Id. at 38.)

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and clear injustice to the defendant.
Commonwealth v. Newman, 528 Pa. 393, 598
A.2d 275, 277 (Pa. 1991). The Rules of Criminal
Procedure provide:

Joinder-Trial of Separate Indictments of Informations

(A) Standards

(1) Offenses charged in separate
indictments or informations may be
tried together if:

(a) the evidence of each of
the offenses would be
admissible in a separate
trial for the other and is
capable of separation by
the jury so that there is
no danger of confusion;
or

(b) the offenses charged are
based on the same act
or transaction.

Pa.R.Crim.P. 582(A)(1)(a)-(b).

Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa. 2010).

The Pennsylvania Rules of Criminal Procedure
provide that distinct offenses which do not arise out
of the same act or transaction may be tried together
if the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so that there is no
danger of confusion. Pa.R.Crim.P. 582(A)(1)(a).
While evidence concerning distinct crimes is
inadmissible solely to demonstrate a defendant’s bad
character or his propensity to commit crimes, that
evidence will be permitted to establish the identity of
the perpetrator where proof of one crime tends to
prove the others. Commonwealth v. Cousar, 593
Pa. 204, 225, 928 A.2d 1025, 1037 (2007).

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J. S25040/17

Commonwealth v. Stiles, 143 A.3d 968, 975-976 (Pa.Super. 2016),

appeal denied, A.3d , 2016 WL 7106404 (Pa. 2016) (footnote

omitted).

Evidence of distinct crimes is inadmissible solely to
demonstrate a defendant’s criminal tendencies.
Such evidence is admissible, however, to show a
common plan, scheme or design embracing
commission of multiple crimes, or to establish the
identity of the perpetrator, so long as proof of one
crime tends to prove the others. This will be true
when there are shared similarities in the details of
each crime.

Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa.Super. 2006),

appeal denied, 926 A.2d 972 (Pa. 2007), quoting Commonwealth v.

Keaton, 729 A.2d 529, 537 (Pa. 1999) (internal citations omitted). “The

following factors should be considered in establishing similarity: the elapsed

time between the crimes; the geographical proximity of the crime scenes;

and the manner in which the crimes were committed.” Commonwealth v.

Judd, 897 A.2d 1224, 1232 (Pa.Super. 2006), appeal denied, 912 A.2d

1291 (Pa. 2006) (citations omitted) (bullets omitted).

In [Commonwealth v.] Newman[, 598 A.2d 275
(Pa. 1991)], the Pennsylvania Supreme Court held
that consolidation was proper where: 1) both rapes
occurred in the x-ray department; 2) each occurred
late at night when appellee was the only technician
on duty; 3) both victims were females suffering from
head injuries; 4) both victims were half the size of
appellee; 5) appellee began kissing the victims,
hugging the victims, and fondling the victims’
breasts before climbing onto the examination table
and raping them. Newman, 598 A.2d at 278.

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Commonwealth v. Smith, 47 A.3d 862, 867 (Pa.Super. 2012), appeal

denied, 60 A.3d 536 (Pa. 2012). Similarly, in Smith, this court determined

that the details of the two assaults were substantially similar, warranting

consolidation, where, inter alia: both victims were 12-years-old at the time

of the crime; they were both of Hispanic race; they both had a close

personal relationship with the defendant; both victims were assaulted in

their residence; both victims reported the assaults involved vaginal

penetration; and both assaults occurred in a two-month time period. Id. at

868-869. This court also found that the evidence of each offense was

capable of separation by the jury so that there was no danger of confusion

and that the defendant was not unduly prejudiced by consolidation. Id. at

869.

In the case sub judice, there were numerous and substantial

similarities between all three cases. All three female victims experienced

childhood sexual abuse and other trauma, which appellant exploited for his

own sexual gratification. The offenses all occurred over a three-month time

period in appellant’s office at Central. Two of the victims, L.H. and D.J.,

were seeking assistance at Central with mental health issues and

housing/employment. The third victim, S.T., was applying for a position as

a certified peer specialist at Central. There was evidence that appellant used

his position of trust and authority as a peer specialist team leader to exploit

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these women sexually. Furthermore, his conduct progressed over time,

from exposing himself, to oral sex, to vaginal intercourse.

As in Smith, appellant points out some relatively minor differences,

e.g., that S.T. and D.J. were African-American, while L.H. was Caucasian.

(Appellant’s brief at 38.) The victims’ ages ranged from 34-years-old (D.J.)

to 51-years-old (L.H.). (Id.) L.H. and D.J. were clients of Central, while

S.T. was applying to work as a counselor at the facility. (Id.) Appellant also

argues that only D.J. alleged that appellant engaged in both oral and vaginal

intercourse with her, and S.T. testified that appellant only asked her to

touch his exposed penis. (Id. at 39.) Appellant’s conduct varied with each

victim.

The defendant in Smith similarly relied on such relatively minor

distinctions, and this court rejected the argument, stating, “We find that the

similarities between the [] assaults substantially outweigh their slight

differences, and that those similarities adequately support the trial court’s

consolidation of the two cases.” Smith, 47 A.3d at 869. In the same vein,

in this case, we agree with the trial court that the many similarities among

the three cases, including location (at Central, in appellant’s office), time (a

three-month time span), conduct (exposing his penis through the zipper of

his pants), and the diminished capacity of the victims (history of childhood

sexual abuse), made consolidation of the three cases appropriate.

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The evidence of each of the offenses would be admissible in a separate

trial for the other, to establish appellant’s identity and also as proof of a

common plan, scheme, or design. (Trial court opinion, 6/8/16 at 17.) In

addition, the evidence was capable of separation by the jury so that there

was no danger of confusion, and the probative value of the evidence

outweighed its prejudicial effect. (Id.) The trial court did not abuse its

discretion in consolidating the matters for trial.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017

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