Com. v. Martin, F.

J-S34010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANKLIN RAY MARTIN, JR. :
:
Appellant : No. 1345 WDA 2017

Appeal from the Judgment of Sentence January 27, 2017
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001664-2015

BEFORE: BOWES, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2018

Franklin Ray Martin, Jr. appeals from the judgment of sentence of

twenty-five to fifty years imprisonment imposed following his jury trial

convictions for, inter alia, rape. We vacate the judgment of sentence and

remand for further proceedings pertaining to whether Appellant was deprived

of the right to confront his accuser.

The victim in this case, M.K., was thirteen years old when the sexual

abuse by Appellant began. M.K.’s mother, Amanda Martin, testified that she

started dating Appellant in 2011 or 2012, and he moved into her residence

sometime in 2012. The two married on July 27, 2013. M.K. informed the jury

that the abuse started shortly after Appellant moved in. One day, Appellant

asked for a backrub while Ms. Martin was at work. Afterwards, Appellant

asked her to touch his penis. When she refused, Appellant grabbed her hand

and put it on his penis. She ran to her bedroom and locked the door. About

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34010-18

a month later, Appellant again asked her to touch his penis. When M.K. again

refused, Appellant forced her to kneel and perform oral sex on him. Similar

incidents with Appellant continued over the next two years, escalating to

forcible vaginal penetration. Appellant threatened to kill her or her family if

she told. The abuse continued unabated until approximately March of 2015,

when she told Appellant that he had to stop as she had a boyfriend.

Around this same time, M.K. attempted to run away from home on at

least two occasions. On March 12, 2015, Ms. Martin called the police to report

M.K.’s absence. Sergeant Paul Manke of the New Kensington Police

Department responded to the residence. Ms. Martin told him that M.K. had

tried to run away about two weeks before, and suggested that she was headed

to her boyfriend’s house. Sergeant Manke located M.K. and transported her

back home.

Ms. Martin testified that she asked M.K. what was going on, and M.K.

showed her a series of text messages, sent by Appellant, indicating sexual

contact. Ms. Martin told M.K. to leave, as Appellant would be home from work

later that evening. Once Appellant arrived, Ms. Martin confronted him and

asked, “have you been messing around with [M.K.]?” N.T., 8/1-3/16, at 171.

Appellant reacted angrily, prompting Ms. Martin to take his cell phone. Ms.

Martin called Sergeant Manke back, and he referred the matter to detectives

for further investigation.

M.K. provided her cell phone to Detective Thomas Klawinski, and it was

searched for text messages. The Commonwealth introduced a set of text

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messages, dated March 12, 2015, between M.K. and a number listed as

“dad.”1 Detective Klawinski read the contents of those messages to the jury:

M.K.: What did you whisper in my ear last night?

Dad: What? Don’t call. I hate talking on the phone plus everyone
is sleeping.

Dad: I said you gotta make up your mind. I can’t keep doing
this. One day we are good, the next we ain’t.

Dad: Um, hello?

M.K.: What is that supposed to mean?

Dad: The day before yesterday you were playing and all up on me,
then yesterday you didn’t even want a hug before bed. I’m very
confused.

M.K.: Well, I said I’m done. I have a BF. I don’t wanna do it
anymore.

Dad: So then, don’t tease me. No more touching, tickling, holding
hands, poking, groping, nothing!

M.K.: I never did and you do the same. Shit.

Dad: You were pushing your ass on me in the kitchen, pokin’ my
ass and grabbin’ for my cawk. Don’t do that no more.

M.K.: No I wasn’t. Don’t come onto me either.

Dad: Fine. We are done. I’m finished with it, too. It was fun but
I don’t need you no more.

M.K.: You never needed me to begin with.

Dad: If it makes you feel better then keep telling yourself that.
You were the only thing keeping me home for a long time. You
were the reason I smiled in the mornings and slept good at night.
____________________________________________

1 Presumably, these were the messages that M.K. showed to her mother.

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You were my sunshine and now you make me feel dirty and sick.
I hope you heard me say I love you this morning. You won’t hear
it [sic] again.

Id. at 192-94.

Detective Klawinski did not execute any search warrants on Appellant’s

phone. On cross-examination, the detective admitted that the designation

“dad” meant only that M.K.’s phone gave the corresponding phone number

that label. The Detective conceded that the authorities did not link that phone

number to Appellant.

Q. So I could have – I could take a cell phone and I can put Ken
Noga and when I get a text message in from that particular
number that I saved with it, it will show Ken Noga, correct?

A. That’s correct.

Q. Is there anything about that information that tells you who
owns that number or whose number that is?

A. There is a phone number. There is a phone number attached
to dad.

Q. So did you get that phone number?

A. No, I did not. It was – the investigator would have probably
talked to the girl who said, yeah, that’s dad’s number or that’s the
number I know my dad uses as the phone so I did not.

....

Q. Now, in the course of your investigation, and you extract this
data from the phone even though it says dad, there’s a cell phone
number associated with it, correct?

A. That’s correct.

Q. You never checked who that cell phone number was listed with,
correct?

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A. That’s correct, I did not.

Id. at 196-98.

The remaining direct evidence against Appellant was Ms. Martin’s

testimony that the two were “a little touchy-feely, sitting very close on the

couch at different times,” which led her to remark that “they acted more like

they were married than him and I did.” Id. at 166-67. Additionally, the

Commonwealth presented the testimony of two jailhouse informants, who

indicated that Appellant made incriminating comments while incarcerated.

Appellant was convicted and sentenced as indicated. Appellant filed a

timely post-sentence motion on February 1, 2017, and the trial court issued a

joint order/opinion disposing of the motion. Appellant timely appealed and

complied with the court’s order to prepare a Pa.R.A.P. 1925(b) statement.2

Appellant raises the following points of error.

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2 The trial court did not rule on the motions within 120 days as required by
Pa.R.Crim.P. 720(B)(3)(a). Pursuant Rule, the judge may grant one thirty-
day extension for good cause shown. “If the judge fails to decide the motion
within the 30-day extension period, the motion shall be deemed denied by
operation of law.” Pa.R.Crim.P. 720(B)(3)(b). The court purported to grant
newly-appointed counsel multiple extensions to file amended motions.
Counsel filed amended motions on July 17, 2017, which was 166 days after
the initial motion was filed and therefore already outside the maximum 150
day period. The trial court therefore lacked authority to act on those motions.

As we noted in Commonwealth v. Khalil, 806 A.2d 415 (Pa.Super. 2002),
we are powerless to extend the time for appeal. However, “we have held that
we will address an otherwise untimely appeal if fraud or breakdown in the trial

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[1]. Did the Commonwealth introduce sufficient evidence of the
dates of his alleged crimes to sustain the convictions of Rape,
Involuntary Deviate Sexual Intercourse, Sexual Assault,
Aggravated Indecent Assault, Corruption of Minors, Unlawful
Contact with Minors and Endangering the Welfare of Children?

[2]. Was [Appellant] deprived of due process and a fair trial when
he was not provided notice or any discovery materials regarding
a jailhouse snitch who would testify that he confessed to the
crimes charged?

[3]. Did the sentencing court abuse her discretion in denying
[Appellant]’s attempts to admit impeachment evidence of bias and
interest of the victim falsely accusing another of similar sexual
crimes and [Appellant] testifying against her?

Appellant’s brief at 5 (reordered).

We address Appellant’s sufficiency challenge first, as a successful

challenge warrants discharge. See Commonwealth v. Enix, 192 A.3d 78,

80 (Pa.Super. 2018). Appellant presents two sufficiency challenges. The first

broadly asserts that the Commonwealth failed to present sufficient evidence

because it did not establish the date of his offenses. The second is narrower,

and concerns the endangering welfare of a child charge. We readily dispose

of both.

Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a
____________________________________________

court’s processes resulted in an untimely appeal.” Id. at 420. Since the court
failed to deny the motions by operation of law as required, we will treat the
appeal as timely filed.

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reasonable doubt. [T]he facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. It is within the province of the fact-finder to determine
the weight to be accorded to each witness’s testimony and to
believe all, part, or none of the evidence. The Commonwealth
may sustain its burden of proving every element of the crime by
means of wholly circumstantial evidence. Moreover, as an
appellate court, we may not re-weigh the evidence and substitute
our judgment for that of the fact-finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

Starting with the global challenge, Appellant complains that M.K.

“testified that the sexual assaults upon her by [Appellant] started in 2012

without any more specificity as to the date or dates.” Appellant’s brief at 13.

In Commonwealth v. Brooks, 7 A.3d 852 (Pa.Super. 2010), we stated:

Case law has further “established that the Commonwealth must
be afforded broad latitude when attempting to fix the date of
offenses which involve a continuous course of criminal conduct.”
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990
(Pa.Super.2007) (quoting Commonwealth v. Groff, 378
Pa.Super. 353, 548 A.2d 1237, 1242 (1988)). This is especially
true when the case involves sexual offenses against a child victim.
Id.

Id. at 857–58.

That circumstance is plainly involved herein. Moreover, M.K. testified

that the sexual acts started shortly after Appellant moved into her residence.

Therefore, Appellant was on notice of a time that the incidents were alleged

to have started, and his challenge fails.

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Turning to the specific challenge to endangering the welfare of a child,

Appellant maintains that the Commonwealth failed to prove two elements of

the crime. The statute reads:

(a) Offense defined.--

(1) A parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person
that employs or supervises such a person, commits an
offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection or support.

(2) A person commits an offense if the person, in an
official capacity, prevents or interferes with the
making of a report of suspected child abuse under 23
Pa.C.S. Ch. 63 (relating to child protective services).

(3) As used in this subsection, the term “person
supervising the welfare of a child” means a person
other than a parent or guardian that provides care,
education, training or control of a child.

18 Pa.C.S. § 4304.

Appellant argues that the Commonwealth failed to prove that he had a

duty of care or supervised the welfare of M.K. because he was not her father,

did not adopt her, and was merely married to M.K.’s mother. We agree with

the trial court’s discussion of this issue, and adopt it as our own:

The Pennsylvania Supreme Court in Comm. v. Lynn, 114 A.3d
796, 824 (Pa. 2015), contemplated the definition of duty of care,
and stated that the terms "‘endangers the welfare of the child’ and
‘duty of care, protection or support,’ are not esoteric; rather, we
discerned that they are easily understood and given context by
the community at large." Id. at 818. Also, it stated that "an
individual who contemplates a particular course of conduct will
have little difficulty deciding whether his intended act endangers
the welfare of the child by his violation of a "duty of care,
protection or support." Id. Indeed, as the Superior Court noted,

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[in] an age when nontraditional living arrangements are
commonplace, it is hard to imagine that the common sense of the
community would serve to eliminate adult persons residing with a
non-custodial child from the scope of a statute protecting the
physical and moral welfare of children." Comm. v. Brown, 721
A.2d 1105, 1107 (Pa.Super.1998).

Here, M.K. and Amanda Martin both testified that when Martin was
working, [Appellant] was tasked with caring for the children at
home and was the only adult in the residence. The jury, after
hearing this testimony, determined that the Commonwealth had
proven beyond a reasonable doubt that [Appellant]’s course of
conduct violated a duty of care to care for M.K., and found
[Appellant] guilty at Count 12.

Trial Court Opinion, 8/30/17, at 20-21. We agree that the Commonwealth

presented sufficient evidence to sustain the jury’s finding.

Appellant’s second argument is that he was denied due process when

the Commonwealth failed to provide notice that a jailhouse informant would

testify. As a result, he was deprived of the opportunity to find and produce

evidence demonstrating that he and the informant never met.3 As the

Commonwealth notes, Appellant failed to raise this issue at trial and it is

therefore waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

Before addressing Appellant’s third issue, we note that Appellant has

attempted to present an argument regarding whether the text messages were

____________________________________________

3Appellant does not say that such evidence actually exists, only that he did
not have enough time to search for it before trial. Moreover, trial counsel
withdrew from the case and did not handle the appeal; counsel may well have
been aware that the Commonwealth intended to call the witness.

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properly authenticated. “Text messages introduced at trial were not properly

authenticated and were not proven beyond a reasonable doubt to have been

sent by the Defendant[.]” Appellant’s brief at 14.

This issue is waived for two reasons. First, this question does not appear

in his statement of questions presented. See Pa.R.A.P. 2116(a) (“No question

will be considered unless it is stated in the statement of questions involved or

is fairly suggested thereby.”). Second, authentication is governed by Pa.R.E.

901, and while the Commonwealth as proponent of the evidence bore the

burden of establishing authenticity, Appellant did not lodge any objection to

the testimony of Detective Klawinski regarding the text message contents.

Additionally, the Commonwealth moved to admit an exhibit that was a report

listing all the text messages, and Appellant stated, “We have no objections.”

N.T., 8/1-3/16, at 191-92. As stated in Folger ex rel. Folger v. Dugan, 876

A.2d 1049 (Pa.Super. 2005), the failure to invoke Rule 901 as a basis to

exclude such evidence results in waiver:

Our own review of the record does not reveal any point at which
Appellants raised an issue under Rule 901. Rather, Appellants
challenged the reliability of the [scientific] test results as reflected
in the records of St. Christopher Hospital and the admissibility of
the [scientific] test results under the hearsay rules. Since
Appellants did not object to the admissibility of the records under
Rule 901 at trial, they have waived that argument for purposes of
appeal.

Id. at 1055 (Pa.Super. 2005) (citation omitted).

We now address the remaining claim, which concerns Appellant’s

constitutional right to confront his accuser. He argues that the trial court

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impaired that right by refusing to permit the introduction of certain evidence

relating to the history of this case. The trial court excluded the evidence as

irrelevant. We generally apply an abuse of discretion review to such

questions:

The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. In
determining whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the evidence
against the prejudicial impact of the evidence. Evidence is
relevant if it logically tends to establish a material fact in the case
or tends to support a reasonable inference regarding a material
fact. Although a court may find that evidence is relevant, the
court may nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014).

However, where the admission of evidence turns on a question of law, we

apply a de novo standard. See Commonwealth v. Woeber, 174 A.3d 1096

(Pa.Super. 2017). A claim that the accused’s confrontation rights were

violated by an impermissible limitation of cross-examination presents a

question of law. Id.; Commonwealth v. Palmore, ___ A.3d ___, 2018 WL

4214202 (Pa.Super. September 5, 2018) (“To the extent that these questions

raise Confrontation Clause issues, our standard of review is de novo and our

scope of review is plenary.”).

The following additional facts are germane to our review. M.K.’s

accusations resulted in the initiation of criminal charges against Appellant on

March 19, 2015. At that time, criminal charges were pending against M.K.’s

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cousin, Steffon Kilgore. Those charges, filed on September 17, 2013, alleged

that Kilgore raped M.K. The matter proceeded to a jury trial, and Kilgore was

acquitted at all counts on August 5, 2015. Appellant testified on Kilgore’s

behalf, and apparently indicated that he helped M.K. concoct the charges.4

The timing of that sequence of events is significant to the parties’

arguments. Appellant was incarcerated on the instant charges in March of

2015, and, five months later, he testified at Kilgore’s trial. According to the

Commonwealth, Appellant’s willingness to testify on Kilgore’s behalf

manifested itself only after he was accused of these crimes. Appellant, on the

other hand, asserted that his intention to testify against M.K. prompted the

accusations against him. The Commonwealth filed a motion in limine seeking

to bar any mention of the accusations against Kilgore. The cited basis for

preclusion was the Rape Shield, which states:

(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
____________________________________________

4 Nothing regarding Kilgore’s case is included in the certified record, and
Appellant simply notes the docket number. The relevant dates come from
that publicly-available document. What Appellant testified to at that trial was
discussed during pre-trial proceedings in this case, as quoted in the body infra.

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the time of trial. If, at the time of trial, the court determines that
the 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. § 3104.

The trial court addressed the motion immediately prior to trial. “[N]ow

we will address the Commonwealth’s motion in limine regarding evidence of

victim’s -- pursuant to the Rape Shield.” N.T., 8/1-3/16, at 13. Appellant

argued that the Kilgore accusations were admissible on cross-examination of

the victim, and also provided a basis to question the Commonwealth’s expert.

We quote at length the relevant exchange.

THE COURT: First of all, the defense has not filed any motions
with the court. I don’t know if the defense intended to attempt to
introduce anything of the victim’s past sexual conduct so I assume
you were not since you haven’t presented anything to me?

MR. ASTON: It’s an interesting dilemma that we find ourselves
in, Your Honor. What we are attempting or believe that she would
be permitted to do is introduce evidence of a prior case involving
this victim wherein she made allegations against another person
and, in fact, there was a trial and that person was acquitted of it.
It is not to impune [sic] her reputation or anything like that. It
deals with a cross-examination of both the victim and the
notice of the intent to present expert testimony that we have
received in reference to this case. That deals specifically with
Carol A. Hughes, who I assume is going to testify as she did in a
previous trial about how victims typically act in cases of a sexual
nature, delay in reporting, it’s often in secret with no witnesses,
the person is uncomfortable.

There is a case, You Honor, of [Commonwealth v. Fernsler, 715
A.2d 435 (Pa.Super. 1998)], wherein the court says that we have
recognized that the exposure of a witness’ motivation in testifying
is proper and an important function of the constitutionally
protected right to cross-examination. Fernsler case, Your Honor,

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the Superior Court overturned a conviction and sent it back for a
new trial, a case wherein the trial court prohibited the very same
kind of factual scenario that we have here because they said if you
could show a bias, because Rape Shield is meant to protect the
defense from trying to slander or impune [sic] the reputation, but
if there is some other legitimate reason the Rape Shield doesn’t
apply.[5]

What our argument is and the defense in this case is, that this is
all fabricated. It’s all fabricated by this young lady. The
fabrication occurs partially because our client testified in the first
trial and he indicated in that testimony that he coached and taught
her how to testify in that trial against the first person, and then lo
and behold she has this boyfriend she is trying to run off with.

THE COURT: Let me just stop you here because you’re confusing
me a little bit, keeping in mind I only know from what I have read
in the Affidavit. I haven’t handled any of the pretrial matters in
it.

It was my understanding that when there was another case
involving another defendant and your client testified for the
defense in that case –

MR. ASTON: Correct.

THE COURT: -- that your client had already been charged in this
case. Your client was actually incarcerated on this case when he
testified for the defense in that other case, is that correct?

MR. ASTON: It is correct but the timing of the two cases are
interesting, at least to the defense, Your Honor, because in the
first case the incidents are alleged to have occurred from here to
here and then the victim is also alleging that our client then
____________________________________________

5 Appellant misstated Fernsler. That case was a Commonwealth appeal from
an order denying its motion in limine to exclude. Therein, the child victim had
committed a sexual assault against his half-sister and was required to
participate in a treatment program. During his treatment, the victim stated
that Fernsler had sexually assaulted him, leading to Fernsler’s prosecution.
Fernsler’s theory was that the victim made the statements to help his
rehabilitation, and noted that the Commonwealth retained the right to file
charges against the victim had he failed to complete the program. He
therefore sought to introduce the victim’s own sexual assault. We affirmed.

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perpetrated these abuses against her from age 13, which overlaps
the first case onward.

THE COURT: How is that relevant?

MR. ASTON: Our argument is it’s relevant because when you start
looking at the accusations of the two cases she talks in the first
case about how this had been going on for a period of time and
yet she only describes three particular instances. In this particular
case she says –

THE COURT: For defendant no. 1?

MR. ASTON: Yes. Now for our case she says it occurs from age
13 until age 15 but in reading through everything, all the police
reports and everything, she only talks about again [sic] about
three particular times. The Commonwealth is going to call Ms.
Hughes to talk about all of this stuff about how sexual victims act,
but our argument is but wait a minute, this young lady is meeting
with this assistant district attorney, police officers, Children’s
Bureau workers and everybody like that for case no. 1 while case
no. 2 is allegedly being perpetrated by our client who is the one
who brought the information forward about case no. 1 to the
mother. That fabrication overlaps and Carol Hughes’s testimony
I think makes fair game asking, but wait a minute, this isn’t the
typical sexual abuse case where you have a person who is
isolated, not around –

THE COURT: I understand your argument.

Id. at 13-18 (footnote added). The judge then asked the Commonwealth to

set forth what Carol Hughes would testify to. The prosecutor responded that

she would explain the reasons for nondisclosure, and argued that the Kilgore

case was irrelevant because M.K. still lived with Appellant after accusing

Kilgore. The Commonwealth concluded: “I just think the testimony regarding

the other case, even though it was a not guilty—,” at which point the trial

court interjected:

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THE COURT: Let me just tell everybody right now, that doesn’t
matter a bit to me because I don’t know why that person was
acquitted. The fact that the person was acquitted does not mean
that it never happened.

MR. ASTON: And we concur with the court on that.

THE COURT: Maybe it didn’t but the fact that he was acquitted,
that doesn’t enter into my decision one bit.

MR. ASTON: No.

THE COURT: That would be highly prejudicial to the
Commonwealth and this trial if that were allowed to come
in that she accused somebody else. Anybody familiar with
those types of cases, as I am certainly familiar from my years as
a trial judge and my years as a prosecutor handling these types
of cases, is that oftentimes a victim is victimized. This is the
perfect victim so person A sexually abuses this victim and then
person B, hey, this is an easy mark, I’m going to sexually abuse
this person . . .

Again, I don’t know what happened in the other case. I did not
preside over that trial. I have no idea what happened. I’m here
now because she is alleging that her stepfather sexually abused
her for a period of years and I want to make sure that both sides
get a fair trial.

It seems to me with all due respect, Mr. Aston, and I know you
have to do your best to defend your client, is that it would tarnish
the victim’s credibility for you to bring in the fact that she had
reported someone else had sexually abused her and the
authorities were looking into that or starting prosecution and she
is living with her stepfather that she has a relationship, a family
relationship with and didn’t report him. To me there is no reason.
There is no collateral issue.

MR. ASTON: I just don’t know if the court misspoke when the court
articulated the reason why this has to be allowed in. When you
said that it will impune [sic] upon her credibility. That credibility
on the right to attack the credibility, a right to confrontation, it’s
constitutional.

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THE COURT: No, you’re going to try to. I think you’re attempting
to so I did misspeak if I said it would. You are attempting to do
that. I don’t think it’s an appropriate way to attempt to do that
...

Id. at 23-26 (emphasis added).

Shortly thereafter, the Commonwealth repeated its position that the

Kilgore evidence implicated the Rape Shield. The trial court correctly noted

that the evidence was not subject to that statute, but, following further

discussion, ruled that Ms. Hughes could not be cross-examined regarding

M.K.’s failure to report Appellant despite her participation in the investigation

regarding Kilgore. Counsel then argued:

MR. ASTON: What if my client takes the stand, Your Honor, and
testifies about how he coached her in the first case and how this
is retaliatory because he already testified?

THE COURT: This is retaliatory? Don’t even answer this. The
charges were brought against your client. Your client was in
prison awaiting trial on this matter when the other person that she
alleged abused her went to trial and then your client who was
awaiting trial on allegations of sexually abusing this child, his
stepdaughter, then went into another courtroom, not my
courtroom, and testified that he coached her in order to convict
the other person. I did not let that information in. I don’t know.
I did not preside over that trial. I know only what you attorneys
told me. Absolutely that is not coming in. The charges were
already brought against your client.

Now, if your client – let’s say hypothetically that she made
allegations against the previous defendant and never made an
allegation against your client, and then that client, that defendant,
was in trial and your client never having been charged went in and
testified to what you’re telling me he did and then she made these
allegation, then you might have some argument with me. This is
not relevant the fact that your client who was awaiting trial on
allegations of sexually molesting a child, his stepdaughter,
testified for another defendant. No, there’s no way that’s coming
in.

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MR. ASTON: If I may, Your Honor, this case began when my client
and the mother reported her as a runaway for being with her
boyfriend, they bring her back, some of the allegations start to
come out but nothing is really happening and then it came out
that he was going to be a witness for the defense in the first case
and that’s when he lands down at the jail, the charges are filed.

THE COURT: The district attorney is shaking her head. I’ll
let you respond in a minute, Ms. Calisti.

....

MS. CALISTI: Your Honor, the Commonwealth did not
discover this until after he was incarcerated. Actually, I think
it was very close to going to trial that he was going to testify for
her.

THE COURT: No, but he is trying.

MS. CALISTI: He is trying to say that is why she made it up.
Nobody knew [Appellant] was going to testify for Steffon
until after the arrest.

THE COURT: Until after whose arrest?

MS. CALISTI: After his arrest, after she disclosed.

THE COURT: That’s what I’m saying. I think we covered it all.

MR. ASTON: Yes, we have our parameters, Your Honor.

Id. at 32-35 (emphases in original).

We now quote the trial court’s resolution of this claim as set forth in its

Pa.R.A.P. 1925(a) opinion:

While [Appellant]’s counsel averred that M.K.’s allegations
affected her credibility as a witness, as the individual was
eventually found not guilty at trial, such evidence had no bearing
on [Appellant]’s guilt and was irrelevant to the instant case.
Victim’s statement that she had been sexually assaulted by a
separate individual did not make it more or less likely that
[Appellant] engaged in sexual intercourse with Victim in this case.

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Moreover, the fact that another perpetrator had been acquitted
does not mean that the victim lied. A jury may believe that a
defendant committed a crime, but does not find evidence beyond
a reasonable doubt. For these reasons, the evidence was not
relevant, and was properly excluded.

Trial Court Opinion, 8/30/17, at 25-26.

Preliminarily, we note that the trial court correctly ruled that this

proposed evidence, while involving sexual conduct, is not governed by the

Rape Shield law. In Commonwealth v. Johnson, 638 A.2d 940 (Pa. 1994),

our Supreme Court held that “the Rape Shield law does not prohibit the

admission of evidence regarding a prior sexual assault suffered by the

victim[.]” Id. at 941. The Johnson Court reasoned that the purpose of the

statute “is to prevent a sexual assault trial from denigrating into an attack

upon the victim’s reputation for chastity.” Id. at 942. However, “[e]vidence

that [the victim] had been subject to a previous sexual assault would not

reflect upon [the victim]’s reputation for chastity. To be a victim is not

‘conduct’ of the person victimized.” Id.

The same is true herein. Evidence that M.K. was previously raped by

Kilgore is not “conduct” covered by the statute. Since the statute does not

apply, our precedents direct that normal relevancy principles apply. Id. (“The

question then becomes whether the testimony is relevant and material under

the traditional rules of evidence.”). The trial judge correctly focused on the

fundamental evidentiary question of relevancy.

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The trial court opinion remarks that the proposed cross-examination was

properly excluded as irrelevant on the basis of Commonwealth v. Holder,

815 A.2d 1115 (Pa.Super. 2003), which examined the admissibility of sexual

accusations against an individual other than the appellant. We disagree that

Holder justifies the instant ruling, as the case is readily distinguishable.

In Holder, the victim reported that Holder had raped her in her

apartment. Holder intimated that the victim had wanted to be with him, as

she had not closed her door when Holder left her apartment. She replied that

she did not think she had anything to fear, as Holder was a friend of her friend

Michael Hunter. The victim stated that she knew Hunter for eight years and

felt comfortable with Holder on the grounds that Hunter would not put her in

harm’s way.

Holder proffered that Hunter would testify that the victim had accused

Hunter of rape approximately one week before the Holder incident. He argued

that the evidence established that the victim did not, in fact, trust Hunter,

which discredited her testimony that she likewise trusted Holder. The trial

court ruled that the evidence was inadmissible pursuant to the rape shield as

well as hearsay rules. Holder determined that the issue was a collateral

matter. “That possible rape by Michael Hunter [does not bear] on the issue

of appellant’s alleged rape[.]” Id. at 1120. Additionally, we deemed the

evidence irrelevant. Id. at n.2 (“Further, we fail to see how testimony that

[the victim] thought that Michael Hunter may have raped her would make her

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allegation of appellant’s rape more or less likely. It was also inadmissible

because it was not relevant.”).

This case would be aligned with Holder had Appellant simply wished to

introduce the fact that M.K. previously accused another individual of rape,

with no further explanation as to how that evidence impacted the case against

Appellant.6 However, Appellant did not intend to introduce the evidence for

that purpose, but to establish that his testimony on Kilgore’s behalf supplied

a motive for M.K. to falsely accuse Appellant, i.e., revenge. That circumstance

is not present in Holder, and to the extent that the trial court interpreted

Holder to prohibit prior accusations against other individuals as collateral

and/or per se irrelevant, it erred.

The relevancy analysis is fairly straightforward if one assumes that

Appellant’s version of the timing is true, with M.K. accusing Appellant after

Appellant decided to testify on Kilgore’s behalf. Viewed that way, the evidence

is clearly relevant and could be excluded only if:

its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.

Pa.R.E. 403.
____________________________________________

6 We note that Appellant did not preserve any claim that the evidence was
admissible on the grounds that the accusations against Kilgore were actually
false. As quoted supra, Appellant agreed with the trial court that the jury’s
acquittal is not equivalent to a finding of falsity.

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There is little doubt that injecting the issue of a criminal trial involving

a completely different defendant, but the same victim, could cause unfair

prejudice, confuse the issues, or mislead the jury. That is especially so where

Appellant presumably wished to inform the jury that the other trial involved

rape, even if he agreed that the actual result of the proceedings was

inadmissible. Since we may affirm on any basis supported by the record, our

analysis might end there. But here the confrontation clause to the Sixth

Amendment enters the equation.

The Confrontation Clause of the Sixth Amendment guarantees the
right of an accused in a criminal prosecution to be confronted with
the witnesses against him. The right of confrontation, which is
secured for defendants in state as well as federal criminal
proceedings, means more than being allowed to confront the
witness physically. Indeed, the main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination. Of particular relevance here, we have
recognized that the exposure of a witness’ motivation in testifying
is a proper and important function of the constitutionally protected
right of cross-examination.

Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986) (cleaned up).

In Davis v. Alaska, 415 U.S. 308, 313–14 (1974), the United States

Supreme Court held that the right of confrontation was violated when the trial

court prohibited cross-examination into potential bias or motive. Therein, a

safe was stolen from a bar and discovered on property twenty-six miles away.

Richard Green, the juvenile stepson of the property owner, told police that he

saw two black men standing near where the safe was recovered. The next

day, investigators brought him to the police station and showed him six

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J-S34010-18

pictures of black men. Green identified Davis, and later testified against him

at trial.

Defense counsel attempted to introduce evidence that Green was on

probation after having been adjudicated delinquent of burglary. Counsel

stated that he did not intend to use the evidence to establish Green’s

character, but instead to show bias and prejudice, as Green may have

identified Davis to “shift suspicion away from himself as one who robbed the

Polar Bar,” or provided information based on a fear of probation revocation if

he did not cooperate to the police’s satisfaction. Id. at 311. The trial court

granted the prosecution’s motion for a protective order, which was based on

an Alaskan rule prohibiting admission of juvenile dispositions in such

situations.

The Supreme Court found a deprivation of the right to confront. With

respect to Alaska’s argument that its policy interest as expressed in the rule

justified a limitation of that right, the Court recognized the importance of that

interest but it could not “require yielding of so vital a constitutional right as

the effective cross-examination for bias of an adverse witness,” in part

because the State could have taken a less restrictive approach by not using

Green as a witness.7 The High Court has cautioned, however, that the

defendant’s right of confrontation is not absolute.

____________________________________________

7 That alternative was not, of course, available to the Commonwealth herein.

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J-S34010-18

It does not follow, of course, that the Confrontation Clause of the
Sixth Amendment prevents a trial judge from imposing any limits
on defense counsel’s inquiry into the potential bias of a
prosecution witness. On the contrary, trial judges retain wide
latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.

Van Arsdall, supra at 679.

In Commonwealth v. Wall, 606 A.2d 449 (Pa.Super. 1992) we

extensively explained how the Rape Shield Law seeks to ensure that the fact-

finding process is not waylaid by prejudicial and irrelevant matters, while

simultaneously respecting the right of confrontation:

The search for the truth, therefore, is a common bulwark upon
which both the Rape Shield Law and the Confrontation Clause are
built. Thus, in many cases, the intent of both the Rape Shield Law
and the Confrontation Clause may be advanced without
encroaching upon the other’s domain. We must recognize that
the defense attorney who kindles the “great engine of cross-
examination” to harass or embarrass the victim/witness does so
to conceal rather than unveil the truth. Nothing within either the
terms or the history of the Confrontation Clause could in any way
be interpreted to protect such misguided defense strategy, and
thus the operation of the Rape Shield Law in such a case remains
unhindered. This is true, in fact, whether or not an obfuscation of
the truth determining process is actually intended. Even
incidental prejudice may be sufficient to exclude facts from trial
which bear lightly if at all on the ultimate issues without violation
the Confrontation Clause . . . .

....

It is only where the truth determining process is not forwarded by
the exclusion of past sexual history that the Rape Shield Law and
the Confrontation Clause may not be reconciled. Under these
relatively rare circumstances, as this Court has previously
recognized, “Rape Shield laws, if rigidly construed, could

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impermissibly encroach upon a defendant’s right to confront and
cross-examine witnesses which is secured by the United States
and Pennsylvania Constitutions.” In such rare cases “the Rape
Shield Law must bow to the need to permit an accused an
opportunity to present genuinely exculpatory evidence....”

The difficulty is of course in determining when the truth
determining process is sufficiently affected by the application of
the Rape Shield Law. In Pennsylvania, we have come to resolve
this question through a relatively elaborate procedure which is
designed to ensure that no evidence of the victim’s sexual history
is introduced unless and until it can be established that to exclude
such evidence would lay victim to the very raison d’etre of the trial
itself: the pursuit of truth. The process begins with the defendant
submitting a specific proffer to the court of exactly what evidence
he or she seeks to admit and precisely why it is relevant to the
defense. This procedure forces the defendant to frame the precise
issues and interests involved, and prevents him or her from
embarking upon “fishing expedition style intrusions on Rape
Shield law protections.” Where the proffer is but vague and
conjectural, evidence of the victim’s past sexual conduct will be
excluded and no further inquiry need be entertained.

Where the proffer is sufficiently specific, the court must then
undertake a three part analysis of the substance of the proffer. At
the trial level, the court must conduct an in camera hearing at
which they must determine: 1) whether the proffered evidence
is relevant to the defense at trial; 2) whether the proffered
evidence is cumulative of evidence otherwise admissible at trial;
and 3) whether the proffered evidence is more probative than
prejudicial. On appeal, such evidentiary rulings must be offered
due deference and overturned only where there has been an
abuse of discretion. Where, however, the proffered evidence
excluded by the Rape Shield law is relevant, non-cumulative, and
more probative of the defense than prejudicial, it must be
admitted.

Id. at 456-57 (citations omitted, emphases in original).

This analysis speaks to evidence that is actually covered by the Rape

Shield law. Here, as noted, the trial court correctly determined that M.K.’s

accusation of Kilgore was not subject to that statute. Hence, the

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aforementioned balancing afforded by the statute vis-à-vis a defendant’s

Confrontation Clause rights, particularly the “relatively elaborate procedure

which is designed to ensure that no evidence of the victim’s sexual history is

introduced unless and until it can be established that to exclude such evidence

would lay victim to the very raison d’etre of the trial itself,” id. at 457, is not

applicable.

Recognizing that the Rape Shield Law is inapplicable, and the

accompanying recognition that Appellant had an interest in presenting

evidence of M.K.’s possible motive to lie, arguably compels granting Appellant

a new trial with no further inquiry insofar as an erroneous deprivation of the

right to confront a witness is, in some cases, not harmless error. Van Arsdall,

supra at 684 (“The correct inquiry is whether, assuming that the damaging

potential of the cross-examination were fully realized, a reviewing court might

nonetheless say that the error was harmless beyond a reasonable doubt.”).8

Viewing the Rape Shield as a legislative enactment announcing a strong policy

interest that justifies a weighing of the right to confrontation suggests that

____________________________________________

8 We decline to find that any error in foreclosing inquiry into the Kilgore matter
was harmless beyond a reasonable doubt. The text message evidence
significantly undercuts Appellant’s claim that M.K. is fabricating the evidence,
but as we set forth in the factual summary, the Commonwealth failed to
connect the phone number to Appellant. Thus, this case was reduced to a
question of credibility.

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J-S34010-18

the balance may tip in the accused’s favor in this situation since the law does

not cover this conduct.9

We decline to go so far, and we find that a remand for an evidentiary

hearing is warranted. That course is not unprecedented, as illustrated by our

decision in Commonwealth v. Woeber, 174 A.3d 1096 (Pa.Super. 2017).

Therein, the then-fifteen-year-old victim A.R. stated that, when she was

twelve, she was at the home of her friends La. and Li., Woeber’s daughters,

for a birthday party. A.R. stated that Li. gave her a drink with alcohol, and at

some point during the party A.R. was attacked by two boys who tried to pull

off her clothes. Woeber stopped the attack, and raped her shortly afterwards.

Woeber and his daughters moved to Alaska for approximately six

months, and then returned to Pennsylvania. A.R. resumed her friendship with

the girls, and attended a second party where Woeber again raped her. On

cross-examination of A.R., counsel’s questioning implied that A.R. told La. that

the other boys had raped her during the birthday party.

At that point, the prosecutor objected, claiming rape shield. A
sidebar discussion followed, during which Appellant’s counsel
explained his intention to call La. to testify that—following the
____________________________________________

9 Despite the rape shield statute’s inapplicability to this evidence, the same
constitutional weighing concerns inherent in such laws naturally extend to this
type of evidence. As the Supreme Court of West Virginia observed,
“[S]tatements about sexual activity involving an alleged victim which are not
false are evidence of the alleged victim’s sexual conduct, even though such
conduct was involuntary—and such evidence is per se within the ordinary
scope of rape shield laws.” State v. Quinn, 490 S.E.2d 34, 39–40 (W.V.
1997).

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J-S34010-18

Woeber family’s return from Alaska—“[A.R.] had said to her, you
know, ‘Something happened at this party at your house,’ and that
she said, ‘I was raped by two other boys.’” [Woeber]’s counsel
contended that A.R. was accusing someone else of committing the
rape that she accused [Woeber] of committing on the night of Li.’s
party. He also argued that rape shield was inapplicable because
it was not A.R.’s sexual conduct at issue but, rather, a prior sexual
assault.

The trial court announced a recess and continued the discussion
with counsel in open court. The trial court advised Appellant’s
counsel that advance notice of the issue would have been
appreciated so that the trial court could have conducted an in
camera hearing as required by Commonwealth v. Black, 337
Pa.Super. 548, 487 A.2d 396 (1985). See also 18 Pa.C.S.A. §
3104(b). [Woeber]’s counsel responded that his review of the law
indicated that he was not presenting a rape shield issue but an
issue of credibility. The trial court responded that the question
was “close to the line” and that counsel should have made a
proffer that would have led the court to hold a § 3104(b)
evidentiary hearing. The court cited Commonwealth v. Fink,
791 A.2d 1235 (Pa. Super. 2002), for the proposition that prior
sexual conduct involving a prior sexual assault does not trigger
the Rape Shield Law and that the evidence is to be evaluated
under general evidence admissibility criteria. However, the court
again noted that counsel should have made a proffer to the court
so the court could determine whether rape shield applies.

The prosecution argued the defense was engaged in a veiled
attempt to pierce the Rape Shield Law. The court announced its
intention to sustain the objection, strike the question from the
record, and leave it up to the defense to question La. in its case-
in-chief. The prosecution could then call A.R. on rebuttal to affirm
or deny the allegation.

At that point, for reasons unrelated to the case, the trial court
dismissed the jurors for the day. When the trial court met with
counsel the following morning, further discussion ensued
regarding rape shield. The trial court noted that, based on the
understanding that the statement concerning the rape by two
boys referred to events on the same night A.R. claimed Appellant
assaulted her, “it is highly probative with regard to credibility and
not excluded by rape shield.”

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The prosecution complained that there were no interviews with
A.R. addressing her alleged conversation with La. The trial court
reiterated that a § 3104(b) motion in limine should have been filed
so that the issue could have been resolved following an in camera
hearing. Ultimately, the trial court determined that the objection
would be sustained, cross-examination of A.R. would continue,
and the issue would be addressed again if it came up during the
defense case.

Id. at 1101–02 (footnote and citations to transcript omitted).

We agreed that the proposed evidence was not implicated by the Rape

Shield, and determined that the court erroneously sustained the objection.

The remedy was an evidentiary hearing.

[W]e find the court committed an error of law by sustaining the
Commonwealth’s objection during cross-examination of A.R., and
erred by failing to evaluate the evidence concerning A.R.’s
statement under traditional evidentiary rules. Had it done so, the
court would have had the opportunity to consider whether the
evidence made it less likely that Appellant assaulted A.R. As a
result of the court’s error, there is nothing in the record to suggest
that A.R. told La. that two boys raped her at Li.’s party, other than
the sidebar statement made by Appellant’s counsel. Further,
there is nothing of record to suggest that La. would testify that
A.R. claimed two boys raped her.

We find the trial court erred by sustaining the Commonwealth’s
objection. In doing so, the trial court violated Appellant’s
confrontation rights because it barred the cross-examination of
A.R. about a prior statement implicating assailants other than
[Woeber]. In addition, it put [Woeber]’s counsel in the position
of trying to raise the issue in the defense case-in-chief without a
foundation for doing so and in the face of inevitable hearsay
objections. Therefore, we are compelled to vacate Appellant’s
judgment of sentence and remand for a hearing.

As for the proceedings on remand, we find guidance in this Court’s
decision in Commonwealth v. Eck, 413 Pa.Super. 538, 605 A.2d
1248 (1992), a case in which the appellant claimed his
confrontation rights were violated by the court’s decision to
withhold materials relating to his accuser. Because the trial court

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had not placed on the record any findings or conclusions relating
to its in camera review of the records, we directed on remand that
the trial court conduct in camera proceedings after which the trial
court could grant a new trial or reinstate the judgment of
sentence. Id. at 1256. Our Supreme Court adopted this
procedure in Commonwealth v. Ruggiano, 611 Pa. 368, 26
A.3d 473 (2011) (per curiam) (citing Eck). In Ruggiano, as in
the case before us, the victim’s past sexual conduct was not at
issue. Therefore, the Rape Shield Law does not apply and the trial
court must determine whether the evidence sought to be admitted
as to A.R. is admissible under the traditional rules of evidence.
Id. (citing Johnson, 638 A.2d at 942).

Accordingly, we direct the trial court on remand to conduct in
camera proceedings for the limited purpose of determining
whether A.R. would deny telling La. that two boys raped her at
Li.’s party and whether La. would testify that A.R. made such a
statement. In the event the trial court finds A.R. and/or La. would
offer such testimony, the court should then consider whether that
testimony is admissible under traditional evidentiary rules. If the
testimony is admissible, the trial court shall grant a new trial and
permit cross-examination of A.R. concerning the purported
statement. If A.R. denies making the statement and La. denies
that A.R. claimed she was raped by other assailants, or if the trial
court determines their testimony is inadmissible, the trial court
shall reinstate the judgment of sentence.

Id. at 1104–05.

The trial court in Woeber committed the same type of error by

foreclosing a potential avenue of cross-examination without adequate

justification. Notably, Woeber determined that a remand for further

proceedings was warranted despite the facial inapplicability of the Rape

Shield. Furthermore, Woeber demonstrates that a defendant is not entitled

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to a new trial simply because he was precluded from receiving an answer to a

question.10

As in Woeber, we find that the proposed evidence is plainly probative,

but it is equally plain that the evidence, if entirely unsupported, could

prejudice the very truth-finding process that undergirds our jury system.

Taken together, we think that the critical question is this: Is there any

evidence to support the claim that M.K. knew, suspected, or had reason to

know or suspect, that Appellant intended to testify on behalf of Kilgore prior

to the accusations?11 If so, Appellant is entitled to a new trial and may

impeach M.K. on those grounds. If not, the judgment of sentence must be

reinstated. See id.

We note that Appellant alluded to this point, but the trial court rendered

a factual finding on that point without the benefit of a hearing.

MR. ASTON: If I may, Your Honor, this case began when my client
and the mother reported her as a runaway for being with her
boyfriend, they bring her back, some of the allegations start to
come out but nothing is really happening and then it came out
that he was going to be a witness for the defense in the first case
and that’s when he lands down at the jail, the charges are filed.
____________________________________________

10 Whether extrinsic evidence of the impeachment, i.e. whether La. would
have actually testified to the purported conversation, is separate from the
ability to ask the question in the first place. Obviously, A.R. could have simply
answered “yes” to the question, thereby proving the bias. Woeber remanded
to determine if A.R. would have agreed that she told La. two other boys raped
her, or if La. would have testified to the same.

11 We recognize that Appellant himself would be a viable source of this type
of testimony, but he elected not to testify. His claim sounds in confrontation
and he did not claim any deprivation of his own right to testify.

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THE COURT: The district attorney is shaking her head. I’ll let you
respond in a minute, Ms. Calisti.

....

MS. CALISTI: Your Honor, the Commonwealth did not
discover this until after he was incarcerated. Actually, I think
it was very close to going to trial that he was going to testify for
her.

N.T., 8/1-3/16, at 33-35 (emphasis added).

That the prosecutor contested the facts of the proffer is not an adequate

basis to foreclose this line of inquiry. There is no reason to think that the

prosecutor, as an officer of the court, was not telling the truth about what the

Commonwealth knew. However, the fact that the Commonwealth was

unaware of Appellant’s role in Kilgore’s trial does not necessarily mean that

the same knowledge applied to M.K. Kilgore’s case was listed for trial for over

two years, and it is not implausible that Appellant’s participation in Kilgore’s

case became known at some time before the instant accusations.

This case illustrates the difficulties occasioned by balancing a

defendant’s right to confront his accuser with the need to ensure that the fact-

finding process is not undermined by sheer conjecture. Affirming judgment

of sentence is unwarranted given the constitutional principles at issue. But

so, too, is granting a new trial without any indication that the purported

impeachment has some basis in reality. We therefore remand for an in camera

evidentiary hearing in accordance with Woeber, supra .

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Judgment of sentence vacated. Case remanded for further proceedings

in accordance with this memorandum. Jurisdiction relinquished.

Judge Stabile joins the memorandum.

Judge Strassburger concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/28/2018

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