J-S21011-18
2018 PA Super 246
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAROLD WILLIAM PALMORE :
:
Appellant : No. 931 WDA 2017
Appeal from the Judgment of Sentence June 7, 2017
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000086-2016
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
OPINION BY OLSON, J.: FILED SEPTEMBER 05, 2018
Appellant, Darold William Palmore, appeals from the judgment of
sentence entered on June 7, 2017. Appellant’s primary contention on appeal
is that the trial court wrongly barred certain testimony from a sexual assault
victim under Pennsylvania’s Rape Shield Law, 18 Pa.C.S.A. § 3104. We hold
that the application of the Rape Shield Law in the particular circumstances of
this case violated Appellant’s Confrontation Clause rights. As this was not
harmless error, we vacate Appellant’s judgment of sentence and remand for
a new trial.
During the Fall 2015 semester, Appellant was a student at Clarion
University. One evening, he hosted a gathering in his dorm room where he
met K.H. (“Victim”). Approximately two weeks later, Appellant and Victim
were speaking in Victim’s dorm room. Appellant forced himself on Victim,
kissed her, placed one hand under Victim’s shirt touching her breast, and
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placed one hand down Victim’s pants touching her vagina. Victim objected
throughout this assault.
The Commonwealth charged Appellant via criminal information with
indecent assault,1 disorderly conduct,2 and harassment.3 Prior to trial,
Appellant moved in limine to permit introduction of Victim’s past sexual
conduct. At the conclusion of an in camera hearing, the trial court denied the
motion. During trial, Appellant moved for reconsideration of this decision and
the trial court denied that motion. On October 11, 2016, a jury found
Appellant guilty of all three offenses. On May 25, 2017, at the conclusion of
an evidentiary hearing, the trial court designated Appellant a sexually violent
predator (“SVP”). On June 7, 2017, the trial court sentenced Appellant to an
aggregate term of 228 to 729 days’ imprisonment. This timely appeal
followed.4
Appellant presents four issues for our review:
1 18 Pa.C.S.A. § 3126(a)(1).
2 18 Pa.C.S.A. § 2709(a)(1).
3 18 Pa.C.S.A. § 5503(a)(4).
4 On June 28, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On August 25, 2017, Appellant filed his concise statement.
On September 19, 2017, the trial court issued its Rule 1925(a) opinion.
Appellant included his first three issues in his concise statement but did not
include his fourth issue in his concise statement. Nonetheless, as that issue
goes to the legality of Appellant’s sentence, it cannot be waived. See
Commonwealth v. Wilcox, 174 A.3d 670, 672 (Pa. Super. 2017), appeal
denied, 184 A.3d 545 (Pa. 2018) (citation omitted).
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1. Did the trial court err in denying Appellant’s request to question
[V]ictim regarding her knowledge of a conversation between
Appellant and her then boyfriend concerning a prior sexual
encounter?
2. Did the trial court err in disallowing Appellant to adequately
question [V]ictim regarding statements that she made at the
time of trial, thereby violating Appellant’s [C]onfrontation
[C]lause rights?
3. Did the trial court err in not issuing a subpoena duces tecum
to Clarion University, thereby substantially hindering
Appellant’s ability to assemble evidence in his defense and
violating his due process rights?
4. Pursuant to [Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017),] was there error in designating the Appellant as
a[n SVP], where there was no jury finding beyond a reasonable
doubt to support that allegation?
Appellant’s Brief at 4.
In his first two questions presented, Appellant argues that the trial court
erred in excluding testimony related to Victim’s prior sexual conduct. To the
extent that these questions raise Confrontation Clause issues, our standard of
review is de novo and our scope of review is plenary. Commonwealth v.
Tejada, 161 A.3d 313, 317 (Pa. Super. 2017) (citation omitted). To the
extent that these questions raise subsidiary evidentiary issues, we review the
trial court’s determination for an abuse of discretion. See Commonwealth
v. Mangel, 181 A.3d 1154, 1158 (Pa. Super. 2018) (citation omitted).
Appellant argues that the trial court improperly excluded evidence of
Victim’s past sexual conduct pursuant to Pennsylvania’s Rape Shield Law,
which provides that:
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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 . . . 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).
In this case, Appellant sought to admit evidence that he witnessed
Victim perform oral sex on his roommate. Appellant argued that he confronted
Victim about cheating on her boyfriend with his roommate and that he later
informed Victim’s boyfriend about the encounter. He testified that he verbally
informed Victim’s boyfriend of the encounter and then communicated about
the encounter in a Facebook Messenger conversation with Victim’s boyfriend.
Appellant theorized that Victim accused him of sexual assault so that her
boyfriend would not believe his story that he witnessed Victim engaging in
sexual conduct with Appellant’s roommate.
Appellant concedes that the evidence he sought to admit did not fall
within the Rape Shield Law’s lone statutory exception because the sexual
conduct in question was not with him. Nonetheless, he contends that the trial
court erred in excluding the evidence because “the Rape Shield Law may not
be used to exclude relevant evidence showing witness[] bias or attacking [a
witness’] credibility.” Commonwealth v. Holder, 815 A.2d 1115, 1119 n.1
(Pa. Super. 2003) (citation omitted). Phrased differently, the Rape Shield Law
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violates the Confrontation Clause when it seeks to prohibit admission of
evidence related to witness bias and/or credibility. See id.
The trial court must engage in a four-part inquiry if a defendant seeks
admission of a victim’s past sexual conduct under either the statutory
exception or a constitutional exception to the Rape Shield Law. After a
defendant provides notice that he or she wishes to introduce such evidence,
see 18 Pa.C.S.A. § 3104(b), the trial court must determine if the proffered
reason for introduction of past sexual conduct evidence is mere speculation or
conjecture. Commonwealth v. Wall, 606 A.2d 449, 457 (Pa. Super. 1992)
(citation omitted). If the proffered evidence is not speculation or conjecture,
the trial court must conduct an in camera hearing. See 18 Pa.C.S.A.
§ 3104(b). At the conclusion of that hearing
[t]he trial court must determine (1) if the evidence sought to be
admitted is relevant to the accused’s defense, (2) whether the
evidence sought to be admitted is merely cumulative of evidence
otherwise admissible at trial, and (3) whether the evidence which
the accused wishes to introduce at trial is more probative than
prejudicial.
Commonwealth v. Fernsler, 715 A.2d 435, 440 (Pa. Super. 1998) (citation
omitted).
Because the trial court conducted the in camera hearing required under
section 3104(b) we infer that the trial court determined that the evidence
proffered by Appellant did not constitute speculation or conjecture. We agree
with this determination as the evidence could be construed to show that
Appellant notified Victim’s boyfriend of the alleged sexual encounter between
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Victim and Appellant’s roommate and that, thereafter, Victim contacted the
police to discredit Appellant’s allegation in the eyes of her boyfriend. So
construed, the evidence Appellant sought to admit was relevant because it
went to Victim’s credibility. See Commonwealth v. Woeber, 174 A.3d
1096, 1104 (Pa. Super. 2017). Furthermore, the evidence was not cumulative
of other evidence. To the contrary, the only way Appellant could establish
that Victim fabricated the alleged attack was to explore Victim’s prior sexual
conduct, including Appellant’s communications with Victim’s boyfriend. The
trial court, however, found that the evidence was more prejudicial than
probative. As such, the trial court found that excluding the evidence under
the Rape Shield Law did not violate Appellant’s Confrontation Clause rights.
After careful consideration, we conclude that the trial court erred in finding
that the unfair prejudice associated with the proffered evidence outweighed
its probative value.
Our prior case law illustrates the source of the trial court’s order. In
Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992), this Court
explained the balance between the probative value of evidence of past sexual
conduct and the prejudicial effect of such proof. In Eck, the defendant was
accused of sexually assaulting his foster brother. Like in the case at bar, the
defendant argued that the victim fabricated the incident and attempted to
introduce evidence of the victim’s prior sexual conduct to attack his credibility.
The trial court held that the evidence was inadmissible under the Rape Shield
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Law. This Court vacated that decision and remanded for a determination of
whether the probative value of the evidence outweighed its risk of unfair
prejudice. This Court emphasized that the probative value need only outweigh
the risk of unfair prejudice. Id. at 1254. That is, to constitute unfair
prejudice, the evidence must “inflame the minds of the jurors.” Id. This
distinction is crucial because evidence of the victim’s past sexual conduct is
always prejudicial. See Commonwealth v. Johnson, 566 A.2d 1197, 1199
(Pa. Super. 1989) (en banc), aff’d, 638 A.2d 940 (Pa. 1994).
This Court has found violations of the Confrontation Clause in cases that
involve the exclusion of evidence offered to establish a sex assault victim’s
motive to fabricate an attack. In Fernsler, the defendant sought to “introduce
evidence that the child victim, his son, possessed a motive to fabricate the
charges . . . to escape the possibility of future sex assault charges based on
the son’s conduct towards his half[-]sister.” Fernsler, 715 A.2d at 440
(cleaned up). The trial court held that excluding the evidence would violate
the defendant’s Confrontation Clause rights. The Commonwealth appealed,
arguing that admission of the evidence was barred by the Rape Shield Law.
This Court affirmed, concluding that “the Rape Shield Law must bow to the
need to permit [the defendant] an opportunity to present genuinely
exculpatory evidence.” Id. at 442 (citation omitted).
When analyzing whether the probative value of the evidence outweighed
any unfair prejudice this Court stated that
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the purpose of admitting the evidence was not to impugn the
character of the child victim as a sexually promiscuous individual.
It was not to punish him for being a victim at the defendant’s
hands. It was not to label the child victim as a bad boy. It was
not to seek retribution against him for having embarrassed the
defendant by allegations of sexual abuse or for discrediting the
defendant’s character in the community. It was simply to flush
out the truth.
Id. at 441–442 (cleaned up).
The same is true in the case sub judice. Appellant did not seek
admission of the evidence to impugn Victim’s character or label her as a
promiscuous college student. Instead, Appellant sought admission of the
evidence to get to the truth by challenging Victim’s credibility. Thus,
admission of the evidence does not deviate from the Rape Shield Law’s
purpose of “prevent[ing] a trial from shifting its focus away from the
culpability of the accused towards the virtue and chastity of the victim.”
Commonwealth v. Guy, 686 A.2d 397, 400 (Pa. Super. 1996).
Despite the Rape Shield Law, this Court has allowed evidence concerning
the timing of sexual abuse claims where such evidence did not impermissibly
shift the focus of proceedings before the trial court. In Wall, the defendant
attempted to introduce evidence that the victim previously accused “her
mother’s adult male paramour [of sexual assault] and that the success of that
prosecution caused the victim’s removal from her mother’s home and
placement in the home in which her aunt and [the defendant] later served as
her guardians.” Wall, 606 A.2d at 457–458. Like in the case at bar, the trial
court barred that evidence because it found that its probative value did not
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outweigh the risk of unfair prejudice. This Court reversed, finding that the
probative value of the evidence outweighed the risk of unfair prejudice. This
Court reasoned that
the timing of the victim’s sexual abuse complaint, and the fact
that, according to the victim’s aunt, the victim left a note to
explain why she had to do this, we conclude that the excluded
evidence here was . . . absolutely critical to the defense. If
believed, the evidence would indeed have been exculpatory to the
defendant. Under the circumstances of this case we conclude that
the probative value outweighed the possibility of prejudice and
that, therefore, the trial court erred in excluding it from trial.
Id. at 465–466.
Similar circumstances are present in the case at bar. Appellant’s
defense rested on his assertion that Victim reported the sexual assault to
discredit his statement that she had sexual contact with Appellant’s
roommate. The timing of Victim’s report and Appellant’s communication with
Victim’s boyfriend are logically consistent with his theory. Hence, the
probative value of the evidence is relatively high. Moreover, the risk of unfair
prejudice is low. As we have discussed above, Appellant did not seek to
portray Victim as promiscuous or claim that she somehow enticed the assault.
Instead, he denied that the assault occurred and sought to attack her
credibility by pointing out a plausible motive for her report to police.
The cases discussed above stand in stark contrast to those cases in
which this Court has held that excluding evidence of a victim’s past sexual
conduct did not violate a defendant’s Confrontation Clause rights. For
example, in Guy this Court held that a victim’s past sexual conduct with a
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third-party was inadmissible in an attempt to bolster a consent defense
because it attempted “to prove that the victim acted in conformity with past
behavior on the date in question.” Guy, 686 A.2d at 401. Hence, in Guy the
defendant attempted to argue that the victim consented to a sexual encounter
because of her promiscuity; the evidence was not simply an attack on the
victim’s credibility. Again, in this case Appellant is not attempting to portray
Victim as consenting to sexual contact because she is promiscuous.
Similarly, in Commonwealth v. Widmer, 667 A.2d 215 (Pa. Super.
1995), rev’d on other grounds, 689 A.2d 211 (Pa. 1997), this Court held that
the evidence of the victim’s prior sexual conduct with her
boyfriend was not offered by Widmer for the purpose of
demonstrating that he did not engage in sexual intercourse with
the victim. Similarly, he was not seeking to demonstrate motive
or bias on the part of the victim. Rather, Widmer was seeking to
bolster his claim of consent by portraying the victim as having
been sexually promiscuous.
Id. at 222.
As is evidenced by our discussion of this Court’s prior decisions, our case
law draws a sharp distinction between a defendant who offers evidence of a
victim’s past sexual conduct to attack his or her credibility and a defendant
who seeks to offer such evidence to advance a consent defense. In the former
cases, this Court has held that exclusion of the evidence sometimes violates
a defendant’s Confrontation Clause rights. In the latter cases, this Court has
held that exclusion of the evidence does not violate a defendant’s
Confrontation Clause rights.
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In this case, Appellant attempted to introduce evidence of Victim’s past
sexual conduct in order to attack her credibility. Appellant did not seek to
portray Victim as promiscuous or prove that she consented to a sexual
encounter. To the contrary, Appellant’s defense was that no such contact
occurred between himself and Victim. Hence, this case is analogous to
Fernsler and Wall and not analogous to Guy and Widmer.
The trial court also found that there was no proof that Victim saw
Appellant’s Facebook Messenger communication with her boyfriend prior to
filing a police report or that her boyfriend was angry about the allegations.
These findings, however, are unsupported by the record. The record reflects,
that Victim testified at the preliminary hearing that she saw the messages.
See N.T., 2/9/16, at 27. At trial, she clarified that she saw the messages
prior to reporting the alleged assault to police. See N.T., 10/10/16, at 57-59.
Moreover, it can be reasonably inferred that Victim’s boyfriend was unhappy
when told that Victim allegedly engaged in sexual conduct with Appellant’s
roommate. Hence, the trial court’s rationale for finding the probative value of
the evidence low is unsupported by the record. For the reasons set forth
above, we conclude that the probative value of the evidence outweighed the
risk of unfair prejudice. Accordingly, we hold that the trial court erred in
excluding the evidence. Moreover, this evidence was at the core of Appellant’s
defense and he did not have an opportunity to present other evidence similarly
attacking Victim’s credibility. Hence, the error was not harmless.
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In sum, we hold that exclusion of Victim’s past sexual conduct violated
Appellant’s Confrontation Clause rights. As that error was not harmless, we
vacate Appellant’s judgment of sentence and remand for a new trial consistent
with this opinion. We decline to address Appellant’s remaining issues because
they would not entitle him to discharge.
Commonwealth’s Brief stricken. Judgment of sentence vacated. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2018
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