Com. v. Lampe, T.

J-A15016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYLER HOGAN LAMPE :
:
Appellant : No. 1205 EDA 2019

Appeal from the Judgment of Sentence Entered March 26, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003528-2016

BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: Filed: October 22, 2020

Tyler Hogan Lampe appeals from the judgment of sentence, entered in

the Court of Common Pleas of Chester County, following his convictions by a

jury for one count each of rape of an unconscious person1 and sexual assault,2

and two counts each of aggravated indecent assault3 and indecent assault.4

Upon careful review, we affirm.

The trial court set forth the facts of the case as follows:

On March 17, 2016, [Lampe] was a 19-year[-]old cadet in his
freshman year at West Point. That night, [Lampe] went to West
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3121(a)(3).

2 18 Pa.C.S.A. § 3124.1.

3 18 Pa.C.S.A. §§ 3125(a)(1), (a)(4).

4 18 Pa.C.S.A. §§ 3126(a)(1), (a)(4).
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Chester University to visit friends, Jake Myers and Allison
Tomassini. [Lampe] drank alcohol at [] Tomassini’s apartment.
[Lampe] and Myers then attended a St. Patrick’s Day party, where
more alcohol was consumed. Throughout the night, [Lampe]
drank a large amount of alcohol. [Lampe and Myers] then went
back to Tomassini’s apartment, where they planned on sleeping
that night. [] Tomassini lived with [L.H., the victim,] and Nora
Hughes. [L.H.] met [Lampe] at her apartment that night, but did
not go out with [Lampe] and [Myers]. [L.H.] also consumed a
large amount of alcohol that night. At some point during the
night, [Lampe] stated that if he didn’t “smash” (have sex with)
someone, he might try to get with [L.H.].

At approximately 2:00 a.m. on March 18, 2016, [Lampe] entered
[L.H.’s] room after she had gone to bed. Both of their clothes
were removed, folded, and placed in a pile. Tomassini could hear
“sex sounds” coming from the room [next to her own]. She
became upset and told Myers [what was occurring via phone call].
[] Myers and [] Hughes then entered [L.H.’s] room. [L.H.] awoke
to [Lampe] being on top of her with his penis inside of her vagina
and [] Myers yelling, “get off of her, get off of her.” N.T. [Trial,]
10/9/18, [at] 46-47.

* * *

Due to the consumption of alcohol, neither [Lampe] nor [L.H.] has
any recollection of the incident. [] Hughes, however, testified that
she was not drinking that night and instead was studying for a
test. [Id. at] 10. [Hughes] stated that when Tomassini called []
Myers [on the phone], [Hughes] and [] Myers ran upstairs. [Id.
at] 25. [] Hughes testified that she walked into the room where
[Lampe] and [L.H.] were[,] right behind [] Myers. [Hughes] saw
that [Lampe] was having sex with [L.H.], holding [L.H.’s] legs
while [L.H.’s] eyes were closed, she was not moving[,] and her
body was limp. [Id. at] 31-32, 66. [] Hughes testified that [L.H.]
was unconscious and passed out. [Id. at] 66. [Hughes] yelled at
[Lampe] to get off [L.H.] and [] Myers had to pull [Lampe] off of
[L.H.]. [Id. at] 33. [] Myers, [Lampe’s] lifelong best friend,
testified that he heard [L.H.] say, “yes, Tyler,” two separate times.
[] Hughes rebutted [] Myers[’] testimony, stating that [L.H.] never
said “yes, Tyler,” and she heard [] Myers tell another person over
the phone[, minutes after the incident, that] “Tyler raped her.”
[Id. at] 67-68.

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On March 18, 2016, [L.H.] reported the incident to police. She
went to the hospital where she underwent an examination.
Erythema (redness) was observed on both the left and right
vaginal walls. Dr. Diane Kane of the Chester County Hospital
testified that when a woman is aroused, there is natural
lubrication in that area. N.T. [Trial,] 10/10/18, [at] 221. The
inference is that [L.H.] was unconscious, and therefore, not
aroused, which is why she suffered this injury to her vaginal walls.

At the direction of the police, [L.H.] participated in a wiretapped,
recorded conversation with [Lampe]. [Lampe] admitted that he
was so drunk, he had no idea what happened, but that he knew
that [L.H.] would not have consented [].

Trial Court Opinion, 12/16/19, at 3-5. After a four-day trial, a jury found

Lampe guilty of the above crimes. The court subsequently sentenced Lampe

to three to six years’ incarceration. Lampe filed a post-sentence motion nunc

pro tunc, and a “supplement,” both of which the court denied. Both Lampe

and the trial court complied with Pa.R.A.P. 1925. On appeal, Lampe raises

the following issues for our review, which we have renumbered for ease of

disposition:

1. Whether the trial court erred in denying [] Lampe’s motion for
judgment of acquittal due to an insufficiency of the evidence
for unconsciousness and nonconsent?

2. Whether the trial court erred in denying [] Lampe’s motion for
judgment of acquittal as the verdict was against the weight of
the evidence for unconsciousness and nonconsent?

3. Whether the trial court erred in its [R]ape [S]hield rulings?

4. Whether the trial court, outside of the presence of the jury,
erred in admonishing two exculpatory witnesses under threat
of contempt against testifying truthfully and completely?

5. Whether the trial court erred in instructing the jury that
“intoxication is not a defense”?

6. Whether the trial court erred in failing to instruct the jury they
could adjourn for the evening before first rendering a verdict?

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7. Whether the trial court erred in denying [] Lampe’s request for
a new trial due to juror misconduct, or, in the alternative,
denying [] Lampe’s request for a hearing to explore and
develop evidence of juror misconduct?

Appellant’s Brief, at 4-5 (some capitalization omitted).

Lampe first challenges the sufficiency of the evidence for each of his

convictions. Lampe claims that none of his convictions is supported by

sufficient evidence because L.H. was not unconscious and, furthermore,

because the Commonwealth failed to prove L.H.’s lack of consent. See

Appellant’s Brief, at 35-45. We disagree. There was sufficient evidence to

support each of Lampe’s convictions.

Our standard of review for a challenge to the sufficiency of the evidence

is well-settled:

In examining a challenge to the sufficiency of the evidence, we
must determine whether, viewing all the evidence admitted at
trial in the light most favorable to the Commonwealth, there is
sufficient evidence to enable the fact[-]finder to find every
element of the crime beyond a reasonable doubt. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. The established facts and circumstances
do not have to be absolutely incompatible with the accused’s
innocence, but any doubt is for the fact[-]finder unless
the evidence is so weak and inconclusive that no probability of fact
can be drawn from the totality of the circumstances as a matter
of law.

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (internal

citations omitted).

Lampe claims that the Commonwealth failed to establish the offenses

of rape, aggravated indecent assault, and indecent assault of an unconscious

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person because the Commonwealth failed to prove that L.H. “[was]

unconscious or [that Lampe knew] that [L.H. was] unaware that the sexual

intercourse [was] occurring, and [] knew or recklessly disregarded the fact

that [L.H.] was unaware that the intercourse was occurring.” Appellant’s

Brief, at 36 (emphasis omitted).5 Specifically, Lampe points to witness

testimony that L.H. was making audible sex noises, which were heard through

the closed-door bedroom walls, to demonstrate that L.H. was not

unconscious.6 Lampe concludes that “[s]omeone who is asleep or unconscious

____________________________________________

5 See 18 Pa.C.S.A. §§ 3121(a)(3), 3125(a)(4), and 3126(a)(4), which all
require proof that the “complainant is unconscious or the person knows
that the complainant is unaware” during the commission of the crime.
(emphasis added).

6 At trial, Myers testified that “we get up to the door of [L.H.] and Tyler’s room
where you can still hear the noises and then I’m like[,] it’s definitely confirmed
what I’m about to walk in on.” N.T. Trial, 10/9/18, at 171. When asked what
he saw when he opened the door, Myers testified “Silhouettes. It was pretty
dark in there. So I can just kind of see bodies moving into each other. It’s
mostly just noises. I can hear, it was easy to tell what was going on.” Id. at
178. Finally, Myers agreed that he “interrupted [Lampe] having what [Myers]
thought at the time was consensual sex.” Id. at 179. In response to who
was making noises, Myers testified “[b]oth of them are moaning. [L.H.] is
moaning a little bit louder. She says: [‘]Yes[,] Tyler[’] twice. . . .” Id. at
217.

Tomassini testified that after Lampe left her room, “it was moments later I
hear[d] sex noises.” Id. at 262. When asked to clarify what “moments”
meant, Tomassini stated, “I was not looking at the time. I wasn’t paying
attention to the time. I was just laying in my bed. The next thing I know, I
heard sex noises.” Id. On cross-examination, Tomassini testified that she
could hear noises coming from L.H., but not from Lampe. Id. at 310-11.

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[does] not make sex noises[,] . . . walk[], talk[], or us[e] the bathroom.”

Id. at 40.

Our Supreme Court defined the term “unconscious” for purposes of

interpreting section 3121(3) of the Crimes Code in Commonwealth v. Erney,

698 A.2d 56 (Pa. 1997). In that case, the appellant argued that the statute

only protects victims who were “completely unaware of the event throughout

the duration of the sexual assault upon them.” Id. at 59. The Court, in

rejecting appellant’s claim and finding the evidence sufficient, stated:

When the assault began, [the victim] displayed no awareness of
external events. As the crime progressed, she believed that she
was shouting for appellant to stop, but was completely unable to
perceive how she was communicating—i.e., that she was merely
mumbling. She offered no response when [] questioned [] during
the assault. Additionally [the victim] had no knowledge of what
ultimately brought an end to appellant’s actions[.] . . . Her
complete lack of awareness of the duration of the assault further
indicates that she was not conscious throughout its entirety.
Thus, despite her ability to perceive some aspects of the incident,
her lack of knowledge of much of what occurred supports the
finding that she was unconscious during portions of the assault
and was, therefore, unable to consent to sexual intercourse.
Because there was ample evidence from which the jury could
properly find that the victim, during at least portions of the
assault, lacked knowledge or awareness of both her own
sensations and external events, and was not in the normal waking
state, the evidence was sufficient to support the finding that she
was unconscious within the meaning of the statute.
____________________________________________

Hughes testified that when she entered the room, L.H. “was making noises,
but like not like words or anything.” N.T. Trial, 10/10/18, at 32. Hughes
further testified that, upon entering the room with Myers, she noticed that
L.H. was “laying on the bed,” id. at 66, “her eyes are closed,” id., “[a]nd she’s
limp,” id., and “from that[, Hughes] perceive[d] that [L.H.] was unconscious
or passed out.” Id. Hughes also testified that L.H. was making noise, and
that Lampe was not. Id.

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Id. The Court concluded that “the evidence support[ed] the findings that the

victim was intermittently unconscious throughout the assault and was at all

relevant times in such impaired physical and mental condition so as to be

unable to knowingly consent, [therefore] her submission to intercourse was

involuntary.” Id. See also Commonwealth v. Diaz, 152 A.3d 1040 (Pa.

Super. 2016), (interpreting the term “unconscious” for purposes of sections

3121(a)(3) and 3126(a)(4) and finding sufficient evidence of unconsciousness

where victim testified she was so intoxicated she was “blacking in and out”;

victim remembered some events preceding and during assault, but not all;

and victim could not communicate, and felt paralyzed, during assault).

Here, the evidence similarly showed that L.H. was, at the very least,

“intermittently unconscious” at the time of the assault. See Erney, supra.

L.H. fell asleep with her clothes on and went to bed after a night of drinking.

See N.T. Jury Trial, 10/9/20, at 45. She testified that the next thing she

remembered was “waking up to [] Myers’ voice, and [] a light coming in front

of the bedroom from the hallway, and [Lampe] standing—or not standing. I

remember him over top of me.” Id. at 46. L.H. testified that she felt a penis

inside of her vagina but she “didn’t know who[se] it was.” Id. at 47. She

testified that she did not willingly have sex with Lampe and that she did not

know he was inside of her until she was awakened by Myers. Id. L.H. testified

that she heard Myers “yelling: Get off her. Get off her[,]” and then Lampe

was “pulled off” of her. Id. After waking up, L.H. was confused and started

crying. Id. She was also naked but had no memory of removing her clothing.

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Id. at 48. L.H. had no recollection of going to the bathroom after being woken

up, even though Hughes testified that she brought her there immediately after

the assault. Id. at 48. L.H. testified that she was still under the influence of

alcohol when she went back to bed after the assault. Id. at 49. L.H. further

testified that when she woke up the next morning, she “thought that I had

been raped, but I was not exactly—I didn’t even understand what had

happened or how it could have happened really.” Id.

Instantly, like in Erney, the evidence supports the conclusion that L.H.

“was intermittently unconscious throughout the assault and was at all relevant

times in such impaired physical and mental condition so as to be unable to

knowingly consent such that her submission to intercourse was involuntary.”

Erney, supra at 59 (footnote omitted). Viewing the evidence in the light

most favorable to the Commonwealth, as verdict winner, the Commonwealth

proved beyond a reasonable doubt that L.H. was unconscious within the

meaning of the relevant statutes; consequently, the evidence was sufficient

to sustain each of Lampe’s convictions under sections 3121(a)(3), 3125(a)(4),

and 3126(a)(4). See Lyons, supra.

Lampe also claims that the Commonwealth failed to prove L.H.’s lack of

consent under sections 3124.1, 3125(a)(1), and 3126(a)(1).7 However, we

must reject this claim because the Commonwealth established L.H.’s lack of

____________________________________________

7Each of these statutes requires proof that defendant acted “without the
complainant’s consent.” (emphasis added).

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consent through her unconscious state. See Diaz, supra at 1044 (finding

evidence sufficient to sustain appellant’s convictions for sexual assault and

aggravated indecent assault where Commonwealth established lack of consent

by victim’s unconscious state.) Therefore, the evidence was sufficient to

sustain each of the elements of Lampe’s convictions under sections 3124.1,

3125(a)(1), and 3126(a)(1) beyond a reasonable doubt.8 See Lyons, supra.

____________________________________________

8 Lampe argues under the sufficiency heading of his brief that,

[i]t is practically impossible that, within such a short period of
time, Mr. Lampe, uncharacteristically and drunkenly deviant (as
argued by the Commonwealth in summation), stumbled into
[L.H.’s] room, navigated past [a] sleeping [friend] in another bed
[next] to [L.H.’s] bed in the back corner, removed his jeans and
shirt, removed her shorts, stockings, and underwear—each from
her hips, down and off her legs—removed her shirt over her head
and her bra from around her back, all without her assistance while
she was unconsciously limp at 5'10" and 170 pounds, placed his
and her clothing in a neat pile, then lifted up her legs and
penetrated her and caused her to make sex noises heard through
the walls all without waking her up. No reasonable jury could
make sense of this. Such a theory to convict on rape goes against
human experience and the laws of nature. . . .

. . . Mr. Lampe was distinguished as the perpetrator because
[L.H.] recounted intermittent facts about the encounter, but not
those specifically concerning her own behavior, and stated after-
the-fact that she did not provide consent because she was asleep.
This is distinguished from Mr. Lampe who had completely no
memory of the event. Should this Court decide, notwithstanding
sex noises, that any alleged inability to recall certain portions of
an incident due to independently induced intoxication is sufficient
to show a complainant is unconscious and unable to form consent,
then the same principle applies to Mr. Lampe. As he had
absolutely no memory of this encounter, he too was unconscious

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Next, Lampe raises a challenge to the weight of the evidence.

Specifically, Lampe claims that Hughes’ testimony was fraught with

uncertainty because she stated she did not know or was unsure of pertinent

facts upwards of twenty times; there was inconsistency as to how much

alcohol L.H. had to drink; there were discrepancies about the amount of

clothing Lampe removed from L.H. while she was unconscious; L.H.

remembered what occurred before and after the assault, but nothing during;

and all of the witnesses who testified agreed that they heard L.H. making sex

noises. See Appellant’s Brief, at 46-53.

Our standard of review for a challenge to the weight of the evidence is

well-settled:

A motion for a new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial
court. An appellate court, therefore, reviews the exercise of
discretion, not the underlying question whether the verdict is
against the weight of the evidence. The factfinder is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses. The trial court will award a new trial
____________________________________________

and incapable of forming consent and was a victim of rape on the
same basis as [L.H.].

Appellant’s Brief, 44-46 (emphasis in original). This argument goes to the
weight, rather than sufficiency of the evidence. See Commonwealth v.
Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (when “[d]irected entirely to the
credibility of the Commonwealth’s chief witness, [a]ppellant’s claim challenges
the weight, not the sufficiency of the evidence.”). “The weight of the evidence
is exclusively for the finder of fact, which is free to believe all, part, or none
of the evidence, and to assess the credibility of the witnesses. . . . An
appellate court cannot substitute its judgment for that of the jury on issues of
credibility.” Id. (citations omitted). As further explained, infra, the trial court
did not abuse its discretion with regard to its ruling on the weight of the
evidence.

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only when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to whether the
trial judge’s discretion was properly exercised, and relief will only
be granted where the facts and inferences of record disclose a
palpable abuse of discretion. Thus, the trial court’s denial of a
motion for a new trial based on a weight of the evidence claim is
the least assailable of its rulings.

Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007).

In its Rule 1925(a) opinion, the trial court explained why it denied

Lampe’s challenge to the weight of the evidence as follows:

In the instant case, the jury chose to find the Commonwealth’s
witnesses credible and decided not to believe [Lampe’s] version
of events. Based on a review of the evidence, the jury’s finding
does not “shock one’s sense of justice.” Even though the defense
tried to claim that [Lampe] did not commit the crimes charged,
the Commonwealth presented sufficient evidence for the jury to
conclude that he did, in fact, commit them. Although there was
much more Commonwealth evidence than just her testimony, []
Hughes’ testimony alone could have convinced a jury of [Lampe’s]
guilt. [] Hughes was an unbiased, sober witness who literally
walked in on [Lampe] having sex with an unconscious woman.
Based on the evidence introduced at trial, the court finds that
[Lampe’s] claim that the verdict was against the weight of the
evidence is without merit.

Trial Court Opinion, 12/16/19, at 11.

Here, all of the witnesses were vigorously challenged and subject to

cross-examination on the specific issues Lampe identified above throughout

the course of the four-day trial. The jury ultimately believed the combined

testimonies of L.H. and Hughes, and resolved the noted inconsistencies. See

Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (“The weight

of the evidence is exclusively for the finder of fact, which is free to believe all,

part, or none of the evidence, and to assess the credibility of the witnesses.”).

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After our review of the record, we cannot say that the jury’s verdict was so

contrary to the evidence, discussed supra, as to shock one’s sense of justice.

See Cousar, supra. Therefore, the trial court acted within its discretion in

denying Lampe’s motion for a new trial on the grounds that the verdict was

against the weight of the evidence. Id.

Next, Lampe challenges the trial court’s Rape Shield ruling. Specifically,

Lampe points to an interview that Detective Stan Billie of the West Chester

Police Department conducted of Tomassini, as an example of the evidence he

wishes to introduce.9 First, Lampe claims that the trial court erred when it

excluded evidence of L.H.’s bias and her “ulterior motive to fabricate a claim

of rape against [Lampe.]” Appellant’s Brief, at 30. Second, Lampe claims

that the trial court erred when it “failed to consider whether the probative

value of the evidence sought by [] Lampe outweighed the potential for unfair

____________________________________________

9 In that interview, the following exchange took place:

Detective Billie: So prior to all this earlier in the day or earlier in
the night, did you make any mention to anybody about Tyler
coming over[?] I mean [‘]hands off[; h]e’s mine tonight,[’] or
something like that?

[Tomassini]: Yeah. I said it to [L.H.] because she tends to, like,
I don’t really know how to describe it. She really enjoys sex and
she, when she gets drunk, she blacks out like every single time
without a doubt. And I had a feeling that if she got drunk and was
planning to go out, which she was, she was going to hook up with
[Tyler] and make me uncomfortable.

Appellant’s Brief, at 26; Transcribed Taped Interview of Allison Tomassini,
5/4/16, at 22-23.

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prejudice” because Lampe’s proposed evidence “is not inflammatory.”

Appellant’s Brief, at 33.

To the extent that these questions raise Confrontation Clause issues,

our standard of review is de novo and our scope of review is

plenary. Palmore, supra at 294. Moreover, when subsidiary evidentiary

issues are raised, we review the trial court’s determination for an abuse of

discretion. Id.

The Rape Shield Law is governed by section 3104 of the Crimes Code,

which states:

(a) General rule.— Evidence of specific instances of the alleged
victim’s past sexual conduct, past sexual victimization, allegations
of past sexual victimization, 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 of any offense listed in subsection (c) 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, past
sexual victimization, allegations of past sexual victimization,
opinion evidence of the alleged victim’s past sexual conduct and
reputation 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 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).

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18 Pa.C.S.A. §§ 3104(a); (b) (emphasis added). Additionally, we have

previously recognized a constitutional exception to this rule for evidence of

the victim’s bias or motive for fabrication because “the Rape Shield Law may

not be used to exclude relevant evidence showing witness bias or attacking a

witness’ credibility.” Commonwealth v. Palmore, 195 A.3d 291, 295 (Pa.

Super. 2018) (quoting Commonwealth v. Holder, 815 A.2d 1115, 1119 n.1

(Pa. Super. 2003)) (brackets omitted).

To satisfy the fabrication exception to the Rape Shield Law,10 Lampe

claims that L.H. had three possible reasons to fabricate the rape claim: (1)

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10 We have previously held that not all evidence showing fabrication or bias is
admissible. “Pennsylvania’s Rape Shield Law may not be used to exclude
relevant evidence showing witness’ bias or attacking credibility.”
Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super. 1985) “Although
logically relevant, evidence tending to show the victim’s prejudice or lack of
credibility may be excluded if ‘it would so inflame the minds of the jurors that
its probative value is outweighed by unfair prejudice.’” Id. (citation omitted).

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. If the proffered evidence is not speculation or
conjecture, the trial court must conduct an in camera hearing. 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)

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“[L.H.] did not want to get in trouble with her roommate and friend,

[Tomassini], who explicitly instructed [L.H.] not to pursue [] Lampe at the

start of the night,” Appellant’s Brief, at 30 n.2; (2) “[L.H.] was upset about

being ignored by John Putsch that night and found comfort in [Lampe],” id.;

and (3) “[L.H.] used the allegation of assault to elicit responses from John

Putsch[,] who otherwise ignored her.”11 Id. Lampe concludes that his

proposed evidence is admissible under the exception to the Rape Shield Law

for evidence of the victim’s bias and fabrication, pursuant to our decisions in

Commonwealth v. Palmore, 195 A.3d 291 (Pa. Super. 2018),

Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992), and

Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985).

Here, the trial court’s Rape Shield ruling was made in response to the

Commonwealth’s motion to exclude, on the second day of trial.12 Prior to
____________________________________________

whether the evidence which the accused wishes to introduce
at trial is more probative than prejudicial.

Commonwealth v. Palmore, 195 A.3d 291, 295 (Pa. Super. 2018) (some
internal citations omitted).

11 John Putsch, a neighbor living in an apartment adjacent to L.H.’s, had a
non-exclusive “physical” relationship with L.H. at the time of the assault. N.T.
Jury Trial, 10/8/18, at 27; N.T. Jury Trial, 10/9/18, at 257.

12 The Commonwealth explained why it made the motion:

I want to note for the record, the basis for when I asked the
[c]ourt to give the instruction you did[] is that the statements I
was provided by defense yesterday[,] pursuant to my discovery
request, turned over multiple statements wherein they specifically

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Myers and Tomassini testifying, the court warned them, under threat of

contempt, not to testify regarding their “opinion about the character of

another witness.” N.T. Jury Trial, 10/9/18, at 145. The court explained, “For

example, Ms. Tomassini, you might have an opinion about [‘]I warned [L.H.]

not to sleep with [Lampe] that night because [of] my opinion of [L.H.] or past

dealings with [L.H.’] I don’t want to hear anything like that. Do you

understand that?” Id. at 146. Both Myers and Tomassini answered in the

affirmative. Id. The court concluded, “Because a blurt out like that[] might

result in a mistrial, and this case has been waiting for two-and-a-half years.

That would not be fair to [] Lampe, and would not be fair to [L.H.] . . . You

could possibly go on contempt citations on either one.” Id.

Lampe’s counsel then objected, and restated his position from an earlier

sidebar conversation for the record:

In this case, we have a situation where both [] Hughes and []
Tomassini explicitly say to [L.H.]: [“]Do not hook up with
[Lampe].[”] Their reasoning for that when I asked the question,
not their excuse, [Tomassini’s] reasoning for that when I asked
the question is [“]I know [L.H.] I know that she would be
attracted to [Lampe].[”] Now, I don’t think that this is barred by
[section] 3104 because it says 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 to the rules of evidence.

Id. at 147. The court then replied to counsel:

____________________________________________

call [L.H.] a whore[,] and they also try to reference particular
incidents, which is what led to that request[.]

N.T. Jury Trial, 10/9/18, at 149.

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[W]e already have on the record, alleged victim thinks defendant
is hot or attractive. Then we have [Tomassini] said stay away
from him, basically, and [L.H.] said I will. So I mean we have that
in the record that there’s a concern from [Tomassini] that [L.H.]
might wind up with [Tomassini’s], you know, part-time boyfriend
or friend with benefits [(Lampe)]. So that’s already in the record.
My concern is starting to get into anything where you start to
venture opinions about the sleeping habits of anybody, whether
the defendant or victim, because it’s [] character evidence.

Id. at 148.

Here, we note that Lampe never filed a written motion and offer of proof

in the trial court.13 See 18 Pa.C.S.A. § 3104(b). “A defendant who proposes
____________________________________________

13In Lampe’s reply brief, he argues that he was misled at trial by the
Commonwealth:

The procedural posture of the Rape Shield Law issue started on
[d]ay 1 of trial when the [d]efense described on the record a
written motion pursuant to 18 Pa.C.S.A. § 3104 it intended
to file to ensure the theory of the defense would be admissible.
As the Commonwealth reviewed the [d]efense motion and had no
objection, the [d]efense and Commonwealth entered into an
agreement as to the admissibility of this evidence.

On the second day of trial, the Commonwealth reneged on that
agreement and asked the trial court to make a ruling to preclude
that evidence pursuant to Rape Shield Law, and to instruct
exculpatory witnesses [] Myers and [] Tomassini outside of the
presence of the jury about limitations of their testimony before
they testified. The [d]efense objected. The effect of the
Commonwealth’s reneging, and the trial judge’s sanction and
implementation of its ruling by admonishing (and intimidating)
witnesses [Myers] and [Tomassini], eviscerated their testimony
before the jury and denied [] Lampe a fair trial.

Appellant’s Reply Brief, at 8-9 (emphasis added; internal citations omitted).

Our review of the record reveals that, on the first day of trial, Lampe’s counsel
informed the court that “[The Commonwealth attorney] and I have discussed
some issues regarding Rape Shield. We’re in agreement. We had prepared a

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to offer evidence of the alleged victim’s past sexual conduct must file a

written motion and make a specific offer of proof at the time of trial.”

Commonwealth v. Beltz, 829 A.2d 680, 684 (Pa. Super. 2003) (quoting

Commonwealth v. Kunkle, 623 A.2d 336, 339 (Pa. Super. 1993)) (emphasis

added). Because Lampe did not file a written motion pursuant to section

3104, but only made an oral objection, we cannot review this claim. See also
____________________________________________

motion. We sent it to [the Commonwealth]. [The Commonwealth] doesn’t
agree with some of the characterization of the testimony, but [] agrees it’s
not Rape Shield[.]” N.T. Voir Dire and Motions, 10/8/18, at 16. The court
then asked for clarification whether Lampe’s intention was to file a written
motion, “You were going to file and you both agreed to that?” Id. at 17.
Lampe’s counsel answered in the affirmative. Id.

Here, defense counsel understood the procedure for filing a written motion,
apparently had already drafted a written motion at the time of the above on-
the-record conversation, and, informed the court that Lampe would file the
written motion. Nothing prevented Lampe from filing that written motion. In
fact, he was required to do so to preserve his claim. See Eck, supra at 1254
(citing Commonwealth v. Johnson, 566 A.2d 1197 (Pa. Super. 1989) (en
banc) (balancing determination between probative value and unfair prejudice,
regarding defendant’s proffered evidence of fabrication, is made by trial court
at in camera hearing similar to that outlined in 18 Pa.C.S.A. 3104(b)); see
also Palomar, supra (“The trial court must engage in a four-part inquiry if a
defendant seeks admission of a victim’s past sexual conduct under . . . 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)[,]”) (emphasis added). Lampe’s claim
that the Commonwealth “reneged on th[e] agreement [between the parties
as to the admissibility of Lampe’s proposed evidence],” see Appellant’s Reply
Brief, at 8-9, even if true, is not enough to overcome the requirement that he
properly preserve the issue at trial. See Pa.R.A.P. 302(a) (providing that
issues not raised before trial court are waived and may not be raised for first
time on appeal); see also Commonwealth v. Burns, 988 A.2d 684, 691
(Pa. Super. 2009) (“The process begins with the defendant submitting a
specific proffer [] of exactly what evidence he or she seeks to admit and
precisely why it is relevant[.] This procedure forces the defendant to
frame the precise issues and interests involved[.]”)(emphasis added).

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Commonwealth v. Burns, 988 A.2d 684, 690-91 (Pa. Super. 2009) (failure

to make written motion bars review of decision at trial to exclude).

Next, Lampe claims that the trial court erred and “violated due process

of law” when it “admonished” Myers and Tomassini, prior to their testifying,

as set forth above. Appellant’s Brief, at 18. Lampe notes that the trial court

never warned any of the other witnesses about their testimony prior to

testifying. Id. at 20. Lampe concludes that the

pre-testimonial admonishment of [Tomassini] and [Myers], at the
time young college students who had never before been in a
courtroom, preemptively tainted their credibility by limiting and
chilling their testimony under a guise of improper and
unconstitutional [R]ape [S]hield rulings. With a looming threat of
contempt, the trial court’s actions . . . undercut the truth of
[Tomassini’s] and [Myers’] testimony, provoked hesitation in their
responses before the jury, and allowed the Commonwealth to
fashion a false narrative, prompting the jury to discredit their
sanitized testimony altogether.

Id. at 21.

Our standard of review is as follows:

When ruling on a trial court’s decision to grant or deny a motion in
limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (internal

citations and quotation marks omitted).

Here, the trial court warned Myers and Tomassini not to testify regarding

their “opinion about the character of another witness.” N.T. Jury Trial,

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J-A15016-20

10/9/18, at 145. This warning was made in response to the Commonwealth’s

request, which was based on the Commonwealth’s representation that there

were “multiple statements wherein [Tomassini and Myers] specifically call

[L.H.] a whore[,] and they also try to reference particular incidents[.]” Id. at

149. The trial court evidently relied on the Rape Shield Law, despite Lampe’s

failure to file any written motion under section 3104(b).14

We have previously discussed the purpose behind the enactment of

Pennsylvania’s Rape Shield Law:

Rape shield laws in general are legislative recognitions of the
minimal probative value of a complainant’s sexual history and are
____________________________________________

14 The trial court’s Rule 1925(a) opinion addresses this issue, along with
several other Rape Shield issues raised by Lampe, collectively, under a single
heading. See Trial Court Opinion, 12/16/19, at 5-8. The trial court explained
its Rape Shield rulings as follows:

In this case, [Lampe] sought to admit evidence related to [L.H.’s]
promiscuity. Specifically, the defense sought to introduce
testimony from [] Myers and [] Tomassini that [L.H.] “was the
type of girl they did not want [Lampe] engaging with.” See
Appellant’s Motion for Judgment of Acquittal, [at] 7. [] Tomassini
and [] Myers think [L.H.] “sleeps around” and refer to her as a
“whore.” N.T. [Jury] 10/9/18, [at] 147-49.

* * *

In this case, the court finds that the testimony [Lampe] wanted
to introduce is mere conjecture about “the type of girl” [L.H.] was.
This is exactly the type of evidence the Rape Shield Law is
intended to preclude. In addition, this type of testimony was
clearly more prejudicial than probative. Thus, the court properly
applied the Rape Shield Law and ruled that the witnesses were not
permitted to testify about [L.H.’s] character in this way.

Trial Court Opinion, 12/16/19, at 6-7.

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designed to prohibit the travesty of presenting a noisome stream
of defense witnesses testifying to the sexual propensities of the
complaining witness. Pennsylvania designed its statute to rectify
these abuses. Our Supreme Court has explained that the specific
purpose of the Pennsylvania Rape Shield Law is to prevent a
sexual assault trial from degenerating into an attack upon the
collateral issue of the complainant’s reputation rather than
focusing on the relevant legal issues and the question of whether
the events alleged by the complainant against the defendant
actually occurred.

Commonwealth v. Jones, 826 A.2d 900, 908 (Pa. Super. 2003) (internal

citations and quotation marks omitted).

Here, the trial court was clearly concerned with this exact type of attack

on collateral issues. See Jones, supra. After warning Myers and Tomassini,

the trial court stated, “My concern is . . . where you start to venture opinions

about the sleeping habits of anybody, whether the defendant or victim,

because it’s character evidence.” N.T. Jury Trial, 10/9/18, at 148. The court

concluded:

I have not been party to any of [the references to L.H.’s character
just noted by the Commonwealth.] I saw a glimpse of that in prior
exhibits in the case. . . . It’s a tragic situation all the way around,
but I don’t want to open it up to character assassination.
That’s the whole point of the Rape Shield Act.”

Id. at 149 (emphasis added). We find no abuse of discretion under these

circumstances. See Minich, supra. See also Kunkle, supra at 340

(defendant’s oral motion during trial, rather than written motion and specific

offer of proof, was inadequate, and there was no abuse of discretion by trial

court when it barred evidence pertaining to prior sexual assault of victim).

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Next, Lampe claims that the trial court erred in instructing the jury that

intoxication is not a defense. Lampe points out that “intoxication was never

raised as a defense, and, as it is not a jury charge available for offenses aside

from first[-]degree murder, the trial court improperly included, at the

Commonwealth's request, ‘Voluntary Intoxication or Drugged Condition No

Defense’ as an instruction in this case.” Appellant’s Brief, at 53. Lampe

argues that the instruction “erroneously misled the jury into believing []

Lampe was not allowed to be intoxicated but [L.H.] was, and this error fed the

Commonwealth’s theory that intoxication caused [] Lampe to act out of

character by raping another person.” Id.

Our standard of review for a challenge to a trial court’s jury charge is

well-settled:

When evaluating jury instructions, the charge must be read as a
whole to determine whether it was fair or prejudicial. The trial
court has broad discretion in phrasing its instructions, and may
choose its own wording so long as the law is clearly, adequately,
and accurately presented to the jury for its consideration.

Commonwealth v. Stokes, 615 A.2d 704, 708 (Pa. 1992) (quoting

Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990)).

We have previously reviewed a similar situation where the trial court

instructed the jury that voluntary intoxication is not a defense to a crime other

than first-degree murder. In Commonwealth v. Graham, 576 A.2d 371 (Pa.

Super. 1990), the trial court instructed the jury that voluntary intoxication

was not a defense to aggravated assault. Id. at 375. In that case, we found

no abuse of discretion because the appellant conceded he drank a large

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quantity of alcohol, the prosecution made an issue of his intoxication during

cross-examination, and the jury asked a question about the definition of

intent. Id.

Here, Lampe concedes that he drank so much alcohol that he does not

remember what happened. See Appellant’s Brief, at 45-46. In addition, the

prosecution made an issue of Lampe’s intoxication through the cross-

examination of Lampe’s expert witness on alcohol-induced blackouts, Dr. Elliot

Atkins. See N.T. Jury Trial, 10/11/18, at 82-85. Moreover, though not raised

as a defense, one of Lampe’s theories of the case is that he had drunken,

consensual sex with L.H. See N.T. Jury Trial, 10/11/18, at 153 (in closing

argument, Lampe’s trial counsel stated to the jury “so if [Tomassini] hears the

sounds of people having sex, and if she hears [L.H.] moaning in a pleasurable

way, and if [Myers] hears [L.H.] say [‘Y]es Tyler,[’] then [L.H.] was not

unconscious.”) We discern no abuse of discretion under these circumstances.

See Stokes, supra. See also Graham, supra at 375 (trial court has power

to decide whether additional information not requested by jury is necessary

to assist jury in understanding issue involved).

Next, Lampe claims the trial court erred by failing to instruct the jury

that it could adjourn for the evening before rendering a verdict. Lampe argues

that this led to a rushed and coerced verdict, which was rendered at 10:30

p.m. See Appellant’s Brief, at 57. Lampe also claims that “[t]he week after

trial, [j]uror #9 came into contact with [d]efense [c]ounsel through her

husband and relayed to [d]efense [c]ounsel that she and the other jurors were

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J-A15016-20

unaware they could go home that evening without first rendering a verdict.”

Appellant’s Brief, at 57. In further support of his claim, Lampe states that

“the jury instructions left little room for interpretation. The jury was to eat

dinner and schedule[d] to stay the night. . . . Alternate jurors were told they

had the ability to watch the Eagles game that night as the others deliberated.”

Id. (internal citations omitted).

Here, the Commonwealth argues that Lampe failed to preserve this

issue since he did not object when given the chance to do so. We agree.

Specifically, at trial, while the jury was present, the court stated its “game

plan” for the final stages of the trial:

THE COURT: Okay, everybody have a seat. Thank you, ladies
and gentlemen. I always like to clue you in on what’s going on.
This is the game plan. We’re going to be ready to do closings
and charge and give you the case to deliberate. We will do that.
We will have the closings at three o’clock. First, defense, then the
Commonwealth. I will take a break. Then give you the jury
charge. What I want you to do is because you have been patient,
between now and [] three, we will give you menus from Carlino’s
so that you can order dinner so we can actually have a minute.
When I finish, you will have food sitting there so you have a clear
head and you can start deliberating. Okay, is that okay with
everybody, with that schedule to stay tonight? Anybody
have a problem with that[?] So, that’s the game plan. We
can get the case to you today. The attorneys have been working
diligently to move the case along. I will give you a little time to
get your thoughts together for what they want to do by three. You
can order now. At three, we will start the closings; okay. Thank
you, see you then. Again, keep an open mind. You have not
heard all the evidence.

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N.T. Jury Trial, 10/11/18, at 136 (emphasis added). Lampe argues that he

preserved this issue at trial, as evidenced at the post-verdict motion hearing

when the following on-the-record conversation took place:

[Lampe’s Attorney]: I want to make sure the record is complete.
The [c]ourt gave us the opportunity Thursday afternoon to decide
whether we wanted to close on Thursday afternoon or come back
Friday and close. We agreed to close. I then requested that the
[c]ourt close, that you charge the jury and then send them home
and bring them back the next morning to begin deliberations.

THE COURT: Frankly, I don’t recall that part. I said no I would
rather have them—

[Lampe’s Attorney]: You said: [‘]No, I’m not doing that.[’]

THE COURT: Okay, I’m glad you cleared up the record; fine.

N.T. Post-Verdict Motions Hearing, 12/5/18, at 28.

“[I]t is well established that absent a contemporaneous objection, the

issue is not properly preserved on appeal.” Commonwealth v. Melendez-

Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004); see Pa.R.A.P. 302(a)

(providing that issues not raised before trial court are waived and may not be

raised for first time on appeal).

Only issues that are properly raised and preserved in the trial
court may be considered on appeal. Pa.R.A.P.
302(a). Issues raised before or during trial are
properly preserved for appeal. Pa.R.Crim.P. 720(B)(1)(c). So
are issues raised in a timely optional post-sentence motion,
provided those issues were properly preserved at the
appropriate point in the proceedings. Pa.R.Crim.P. 720(B).
For example, a criminal defendant could not assert a claim
in a post-sentence motion for a new trial that evidence was
erroneously admitted during his trial if he hadn’t lodged an
objection during the trial when the evidence was admitted.
Failure to object results in a waiver of the claim.

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J-A15016-20

Id. at 1288-89 (quoting Commonwealth v. Kohan, 825 A.2d 702, 705-06

(Pa. Super. 2003)) (emphasis added).

Here, the court offered its “game plan” and then gave Lampe an

opportunity to object. See N.T. Jury Trial, 10/11/18, at 136. Lampe did not

object contemporaneously. See Melendez-Rodriguez, supra. Instead, he

waited until the post-sentence motion hearing, which was conducted several

weeks later, to attempt to amend the record and insert an objection. See

N.T. Post-Verdict Motions Hearing, 12/5/18, at 28. Because this issue was

not properly preserved at trial via contemporaneous objection, we cannot

review this claim. See Melendez-Rodriguez, supra.

Finally, Lampe claims that the trial court erred when it denied his motion

for a new trial based on evidence of juror misconduct. In the alternative,

Lampe claims that the evidence of juror misconduct entitles him to a hearing

to develop and explore the claim further. Specifically, Lampe points to a letter

that juror #15 wrote to the court after the trial. In his letter to the court,

juror #15 identified statements made by other jurors in the courthouse

hallways prior to deliberations—though he did not know exactly who made the

statements, or who heard them—including, “Why didn’t they let [Lampe] take

the stand?” and “In today’s day and age, like it or not, guys are guilty first.”

Appellant’s Brief, at 58. Lampe further argues that

[t]he reported comments reveal an outside influence improperly
bearing on at least one member of the jury. This trial occurred
the week following the United States Senate broadcasted hearing
involving testimony of [Dr.] Christine Blasey Ford and then-
nominee Supreme Court Justice Brett Kavanaugh. The tension

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from this event in the midst of the #metoo and #TimesUp!
movement was palpable throughout trial, which concern was
repeatedly RAISED by the [d]efense.

Id. at 59 (emphasis in original).

We review Lampe’s motion for a new trial under the following standard:

The decision to grant or deny a motion for mistrial is within the
sound discretion of the trial court and will not be reversed absent
a flagrant abuse of that discretion. A mistrial is required only
when an incident is of such nature that its unavoidable effect is to
deprive the defendant of a fair trial. A mistrial is not warranted
when the event at trial which is alleged to have caused the
prejudice to the defendant is of a speculative nature.

Commonwealth v. La, 640 A.2d 1336, 1347 (Pa. Super. 1994) (internal

citations omitted).

Here, during the jury charge, the court properly instructed the jury to

consider only the evidence admitted at trial. See N.T. Jury Trial, 10/11/18,

at 188 (“In determining the facts, you must consider only the evidence that

has been presented to you in the courtroom and the logical inferences that

can be drawn from that evidence. You are not to guess, speculate or rely on

matters that are not in evidence.”). Nothing related to the Supreme Court

confirmation hearings for then-nominee Brett Kavanaugh was admitted into

evidence. Similarly, all of the issues raised by juror #15 were matters not in

evidence. See Letter from J. A. “Jay” Janson, 10/11/18, at 1-4 (raising

concern regarding: (1) comments made by jurors in hallway, though he does

not know who made them; (2) his subjective perception that deliberations

should have lasted longer; (3) his observations of jurors crying upon reading

the verdict; (4) his perception that the defense was not allowed to adequately

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probe the true meaning behind a text message; (5) his perception that photos

introduced by the Commonwealth at trial were misleading; (6) his

independent research that “the moon that night was a waxing gibbous

(~69%) and set at 03:33—meaning it would have been a very dark sky even

a few hours prior to the alleged incident corroborating everyone’s testimony

in the room that it was ‘very dark’”; (7) his perception of various

inconsistencies in the evidence; and (8) his independent research of Hughes’

and Tomassini’s social media accounts). Any possible improper reliance by

the jurors on matters not in evidence was cured by the court’s jury charge.

See Commonwealth v. Williams, 381 A.2d 1285, 1291 (Pa. Super. 1977)

(reversible error can be cured by trial court’s prompt and adequate cautionary

instruction). Moreover, jurors are presumed to follow the court’s instructions.

See also Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992) (“The

presumption in our law is that the jury has followed instructions.”). Therefore,

the trial court did not abuse its discretion in declining to grant a new trial.

See La, supra.

Lampe claims that he is entitled to a hearing to further explore this

alleged juror error. We disagree. A juror’s competency to testify as a witness

regarding the validity of a verdict is governed by Pa.R.E. 606, which states:

Upon an inquiry into the validity of a verdict, . . . a juror may
not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon
that or any other juror’s mind or emotions in reaching a decision
upon the verdict or concerning the juror’s mental processes in
connection therewith, and a juror’s affidavit or evidence of any
statement by the juror about any of these subjects may not be

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received. However, a juror may testify concerning whether
prejudicial facts not of record, and beyond common knowledge
and experience, were improperly brought to the jury’s attention
or whether any outside influence was improperly brought to bear
upon any juror.

Commonwealth v. Steele, 961 A.2d 786, 808 (Pa. 2008); Pa.R.E. 606(b).

Our Supreme Court went on to explain Rule 606’s applicability:

This rule is often referred to as the “no impeachment rule.” We
recognized in Carter [v. U.S. Steel Corp. 604 A.2 1010 (Pa.
1992)] that the strict “no impeachment” rule provides a narrow
exception for “post[-]trial testimony of extraneous influences
which might have affected [or prejudiced] the jury during
deliberations.” Under this exception, pursuant to Carter, the
juror may testify only as to the existence of the outside influence,
but not as to the effect this outside influence may have had on
deliberations. Under no circumstances may jurors testify
regarding their subjective reasoning processes.

. . . The exception only applies to outside influences, not
statements made by the jurors themselves.

Steele, supra at 808 (emphasis and brackets around “or prejudiced” in

original).

Here, Lampe relies upon juror #15’s letter to the court detailing that

juror’s concerns with the verdict, and juror #9’s statement to defense counsel

that she and other jurors were unaware they could go home without first

rendering a verdict. See Appellant’s Brief, at 58-60. Notably, juror #15 was

an alternate juror, and was not present in the deliberation room during jury

deliberations. In fact, much of the juror’s letter, and Lampe’s argument,

focuses on the alleged statements made by the jurors themselves, which

testimony is not eligible for the Carter exception to the “no impeachment

rule.” See Steele, supra. Moreover, juror #9’s proposed testimony is not

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limited to outside influences, see id., as that juror proposed to testify that

she and the other jurors were “unaware they could go home that evening

without first rendering a verdict.” Appellant’s Brief, at 57. This testimony

clearly delves into the jury’s deliberations, the other jurors’ minds or emotions

in reaching their decision upon the verdict, and the jurors’ mental processes

in connection with the deliberations. See Steele, supra. No such testimony

is permitted; therefore, the court did not abuse its discretion in declining to

grant a hearing to explore this issue further. See id.; see also Pa.R.E.

606(b).

Judgment of sentence affirmed.

Judge Strassburger joins this Memorandum.

Judge King did not participate in the consideration or decision of this
matter.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/20

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