J-A08040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID CARDONA : : Appellant : No. 1654 EDA 2018
Appeal from the Judgment of Sentence Entered April 9, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000176-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 20, 2020
David Cardona (Appellant) appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
convictions of rape, indecent assault, and corruption of minors.1 Appellant
raises seven issues, relating to evidentiary rulings, an alleged Brady2
violation, the sequestration of witnesses, the jury instructions, and the weight
of the evidence. We affirm.
____________________________________________
1 18 Pa.C.S. §§ 3121(a)(1) (rape by forcible compulsion), 3126(a)(2) (indecent assault by forcible compulsion), 6301(a)(1)(i) (corruption of minors).
2Brady v. Maryland, 373 U.S. 83 (1963). See Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016) (prosecutor has obligation to disclose all exculpatory information material to guilt or punishment of accused). J-A08040-20
The minor victim (Victim) in this matter testified at trial to the following.
In March of 2016, when she was 13 years old, she was spending the night at
Appellant’s home in Chester, Pennsylvania. Appellant “was a close family
friend,” and Victim’s family considered him an uncle to Victim.3 Trial Ct. Op.,
7/30/19, at 2. Also present were Victim’s younger sister (Sister), as well as
Appellant’s two daughters. The trial court summarized:
[Appellant] told [S]ister and his [older] daughter to go upstairs. He told them that they were not allowed to come downstairs until he told them they could.
[Victim] went into the kitchen . . . and [Appellant] entered, turning the kitchen lights off. He grabbed [Victim’s] arms from behind and bent her over, then pulled [Victim’s] pants down and forcibly penetrated her [vagina]. He told her to put her hands on the sink, and she did. She was too afraid to resist, thinking he might get abusive. She attempted to [lift herself up but was pushed] back down. She was crying but didn’t call out [because she did not want her sister to see what was happening. Appellant] then released her[, and Victim] went into the upstairs bathroom.
Trial Ct. Op. at 2-3 (record citations omitted); see also N.T. Trial, 1/17/18,
at 46-49, 51. There was “blood all over” Victim’s underwear, and she took a
shower. N.T., 1/17/18, at 50. Victim then put her underwear in a bag and
threw it in a trashcan outside. Id. at 51. When Appellant’s wife arrived home,
everyone watched a movie together. The next morning, Appellant drove
Victim home and told her, “[M]ake sure you don’t tell anybody because I can
lose my kids and my family.” Id. at 52. Thereafter, Appellant “kept coming”
3 At trial, Victim’s mother testified Appellant was her cousin. N.T. Trial, 1/17/18, at 173.
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to Victim’s house and asked her whether she told her parents, and whether
she “want[ed] to do it again.” Id. at 53, 55.
Victim testified this incident caused her stress. N.T., 1/17/18, at 57. In
November of 2016,4 Victim was at home with her family and “was so angry.”
Id. She went into the bathroom and held a knife to her neck. Id. Her mother
asked Victim, “[W]hat’s wrong because [she had not] been acting [like her]self
lately,” and Victim told her about the incident with Appellant, because Victim
“couldn’t hold the pressure anymore.” Id. at 56-57.
The trial court summarized that the next day,
November 4, 2016, [Victim] went to DuPont Childrens Hospital, and was treated for rape by [pediatric] Forensic Nurse Christina Lynch. [Nurse] Lynch was unable to do a rape kit since it had passed the six month mark but was treating her for possible sexually transmitted diseases.
Trial Ct. Op. at 3 (record citations omitted). At the hospital, Victim also gave
a statement to Chester Police Officer Joshua Dewees. N.T., 1/17/18, at 205-
06.
This case proceeded to a jury trial commencing January 16, 2018.
Victim testified as summarized above. The Commonwealth also called to
testify Victim’s mother and sister, Nurse Lynch, and Officer Dewees. Appellant
did not testify, but called his wife to testify. The jury found Appellant guilty
of rape, indecent assault, and corruption of minors.
4See N.T., 1/17/18, at 174 (Mother’s testimony as to when this conversation occurred).
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On April 9, 2018, the trial court imposed a sentence of 70 to 140 months’
incarceration for rape and a consecutive five years’ probation for corruption of
minors. Appellant filed a timely post-sentence motion, which was denied on
May 4th. Appellant took this timely appeal and complied with the court’s order
to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant presents the following issues for our review:
1. Whether the trial court erred in allowing the nurse, over the objections of defense counsel, to testify as to impermissible hearsay under Com. v. Smith, 681 A.2d 1288 (Pa. 1996).
2. Whether the trial, through failure to memorialize investigatory information, violated Brady and caused extreme prejudice to [Appellant].
3. Whether the trial court erred in conduct with witnesses including not sequestering them from each other and in allowing mid-trial conferences with a professional witness.
4. Whether the trial court erred in not allowing evidence of the alleged victim’s mental health diagnoses to be investigated or presented, as well as in violation of the [C]onfrontation [C]lause, as it was critical information to judg[ ]ment of ability to tell or know the truth.
5. Whether the trial court erred in not allowing the Facebook posts as a Killen[5]-type statement.
6. Whether the trial court erred in not instructing the jury as to failure to produce documents or evidence and as to impeachment of a witness.
5 Commonwealth v. Killen, 680 A.2d 851, 854 (Pa. 1996) (complainant’s “sexually provocative” statements made to third person after alleged sexual assault were not subject to Rape Shield Law and were admissible to assist jury in assessing complainant’s credibility in determining whether she was victim of sexual assault).
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7. Whether the trial verdict is against the weight of the evidence.
Appellant’s Brief at 10.
Preliminarily, we remind counsel of the “much quoted” article by the
Honorable Ruggero Aldisert of the federal Third Circuit Court of Appeals:
With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them . . . [and] it is [this] presumption . . . that reduces the effectiveness of appellate advocacy.
Commonwealth v. Robinson, 864 A.2d 460, 479 n.28 (Pa. 2004), quoting
Aldisert, Ruggero, The Appellate Bar: Professional Competence and
Professional Responsibility — A View from the Jaundiced Eye of the Appellate
Judge, 11 CAP. U. L. REV. 445, 458 (1982).
We also note with displeasure that Appellant’s arguments generally do
not acknowledge, let alone discuss, the trial court’s opinion addressing his
issues. To this end, we further remind counsel that this Court is “an error
correcting court,” and thus, at least with respect to the particular claims raised
in this appeal, our duty is to review the decisions of the trial court, and not,
as Appellant’s presentation would require, undertake de novo review of his
claims. See Commonwealth v. Snyder, 60 A.3d 165, 178 (Pa. Super. 2013)
(citation omitted).
In Appellant’s first issue, he avers the trial court erred in allowing Nurse
Lynch to testify as to what Victim told her during the physical examination.
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For ease of review, we recount that at trial, Victim first testified about the
incident as summarized above. Subsequently, Nurse Lynch testified that at
the hospital, she asked Victim for the “history” and “facts” needed “to base
her medical care off of.” N.T., 1/17/18, at 123-24. Before the nurse said
anything about what Victim had told her that day, Appellant raised an
objection on hearsay grounds. Id. at 125. At sidebar discussion, the trial
court overruled the objection, accepting the Commonwealth’s argument that
the testimony was admissible under the medical diagnosis/treatment
exception to the general rule against hearsay.6 Id. at 126-27. Nurse Lynch
then testified as to what Victim told her about the incident, including that it
was Appellant who was perpetrator. Id. at 128-29. The nurse also stated
Victim was emotional but “a good historian” and spoke with a “matter of
factness.” Id. at 123-24. We note Appellant did not object to this testimony.
See id.
On appeal, Appellant maintains these statements by Nurse Lynch at trial
were inadmissible hearsay. He avers Nurse Lynch should have been precluded
from stating that he was the perpetrator, pursuant to Smith. See Smith,
6 See Pa.R.E. 803(4)(A)-(B) (statements not excluded by rule against hearsay include one that: “(A) is made for — and is reasonably pertinent to — medical treatment or diagnosis in contemplation of treatment; and (B) describes medical history, past or present symptoms, pain, or sensations, or . . . the cause . . . thereof, insofar as reasonably pertinent to treatment, or diagnosis . . . .”).
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681 A.2d at 1293 (declining to extend medical treatment exception to
statements identifying alleged abuser). Furthermore, Appellant alleges Nurse
Lynch should have been precluded from “vouch[ing] for [V]ictim’s propensity
for telling the truth,” and that the trial court’s error requires a new trial.
Appellant’s Brief at 20. No relief is due.
The admission of evidence is “a matter vested within the sound
discretion of the trial court.” Commonwealth v. Gonzalez, 109 A.3d 711,
726 (Pa. Super. 2015). Generally, “[h]earsay is not admissible.” Pa.R.E. 802.
Hearsay is defined as “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c)(1)-
(2). One exception to the general hearsay rule is set forth at Pennsylvania
Rule of Evidence 803.1:
The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross- examination about the prior statement:
* * *
(2) Prior Statement of Identification by Declarant- Witness. A prior statement by a declarant-witness identifying a person or thing, made after perceiving the person or thing, provided that the declarant-witness testifies to the making of the prior statement.
Pa.R.E. 803.1(2). Our Supreme Court has also stated that “hearsay concerns
are virtually non-existent where an out-of-court declarant is a witness in a
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judicial proceeding.” Commonwealth v. Romero, 722 A.2d 1014, 1017 (Pa.
1999).
Here, Victim had already testified about what occurred and identified
Appellant as the perpetrator. See N.T., 1/17/18, at 47-48. Victim also
testified she told the nurse at the hospital about “what happened.” Id. at 58.
Nurse Lynch then testified about what Victim told her.7 Id. at 128. Thus, this
testimony falls under the hearsay exception set forth at Rule 803.1(2). See
Pa.R.E. 803.1(2); Romero, 772 A.2d at 1017. At trial, Appellant made no
request to re-cross-examine Victim following Nurse Lynch’s testimony, and on
appeal, makes no argument that Victim was not available for such cross-
examination. Accordingly, no relief is due.8
7The trial court pointed that Nurse Lynch’s testimony — as to what Victim told her about the incident — was “almost verbatim” to Victim’s trial testimony. Trial Ct. Op. at 4; see also N.T., 1/17/18, at 47-48, 51, 128-29.
8 Furthermore, we could find this issue waived for failure to raise a contemporaneous objection. See Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super. 1996) (en banc) (“Failure to raise a contemporaneous objection to the evidence at trial waives that claim on appeal. Pa.R.A.P. 302(a)[. A defendant] may not raise a new theory for an objection made at trial on his appeal.”). Appellant lodged only a general hearsay objection to preclude Nurse Lynch from testifying about what Victim told her. See N.T., 1/17/18, at 125-26 (Appellant arguing witness should be “called to only say that she did an exam”). Appellant made no specific objection to Nurse Lynch’s testimony about Victim’s truthfulness or Victim’s identification of Appellant as the perpetrator, and Appellant made no contemporaneous argument that this testimony fell outside the scope of the medical treatment exception. See id. at 124, 128.
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In Appellant’s second claim, he alleges a Brady violation, where the
Commonwealth refused, despite his repeated demands, to memorialize in
writing “the oral information” it had provided him. Appellant’s Brief at 24. In
further support of his Brady claim, Appellant argues the Commonwealth failed
to, inter alia: (1) get the clothes Victim was wearing on the night of the
incident; (2) “memorialize (or did not know) [Victim] was apparently suicidal
. . . prior to her revealing the alleged rape to her mother;” (3) “memorialize
the reason for not dealing with active warrants” against Victim’s mother; and
(4) “memorialize the false statements of the mother [that Appellant intended
to flee to Puerto Rico] and the fact that the Commonwealth knew the
statements were false.” Id. at 25-26. Appellant acknowledges the trial
court’s response, that the Commonwealth did not have any “written material”
but was “disclosing the verbal material” it did have. Id. at 24. No relief is
due.
This Court has stated:
To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. The burden rests with the appellant to “prove, by reference to the record, that evidence was withheld or suppressed by the prosecution.” The evidence at issue must have been “material evidence that deprived the defendant of a fair trial.” “Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. . . .
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. . . The duty to disclose is limited to information in the possession of the government bringing the prosecution, and the duty does extend to exculpatory evidence in the files of police agencies of the government bringing the prosecution. Brady is not violated when the appellant knew or, with reasonable diligence, could have uncovered the evidence in question, or when the evidence was available to the defense from other sources. Brady sets forth a limited duty, not a general rule of discovery for criminal cases.
Ovalles, 144 A.3d at 965 (citations omitted) (some emphases added).
Appellant’s invocation of Brady is mistaken. First, he contends the trial
court erred in not requiring the Commonwealth to provide in writing the
information it had already verbally given him. Brady imposes no such
obligation that information, provided by a prosecutor to the defendant, be in
written form. Second, Appellant does not claim the Commonwealth refused
to “disclose all exculpatory information material to the guilt or punishment of
an accused.” See Ovalles, 144 A.3d at 965. Instead, he acknowledges the
Commonwealth provided him information — albeit in a form he did not prefer
— and, alternatively, the Commonwealth may not have known about Victim’s
alleged suicidal thoughts. See Appellant’s Brief at 25-26. Furthermore, with
respect to Appellant’s claim concerning the clothes Victim was wearing, we
note: (1) he presents no explanation nor evidence why they would be
exculpatory; and (2) he ignores the trial court’s reasoning that “[e]ven if
[Victim] still had the clothes [from] the night in question, police training
dictates that the physical evidence on the clothes could be compromised since
the incident took place seven months earlier.” See Trial Ct. Op. at 4 (footnote
omitted). As Appellant fails to “prove, by reference to the record, that
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evidence was withheld or suppressed by the prosecution,” no relief is due
under Brady. See Ovalles, 144 A.3d at 965 (citation omitted).
Next, Appellant avers, “The trial court erred in conduct with witnesses
including not sequestering them from each other and in allowing mid-trial
conferences with a professional witness.” Appellant’s Brief at 31. This claim
is identical to the issue as framed in his Rule 1925(b) statement. See
Appellant’s 1925b Statement of Matters Complained of on Appeal, 6/20/18, at
1. Both the trial court and the Commonwealth suggest Appellant has waived
this issue by not providing sufficient explanation in his Rule 1925(b)
statement. Trial Ct. Op. at 5; Commonwealth’s Brief at 19. The trial court
explained:
[Appellant] does not clarify what mid-trial conferences he alleged transpired. This Court can only find one instance on the record in which [Appellant] requested witnesses be sequestered during the trial. [Appellant] requested the affiant[, Officer Dewees,] be sequestered outside, to which the Commonwealth acquiesced and the Court agreed. [N.T., 1/18/18, at 18.] Without more clarity pertaining to what exact incidents [Appellant] refers to in his Appeal, it is not possible for this Court to address the argument.
Trial Ct. Op. at 5.
Our Supreme Court has recently stated that under Commonwealth v.
Lord, 719 A.2d 306 (Pa. 1998), and Commonwealth v. Butler, 812 A.2d
631 (Pa. 2002), an appellant
is required to strictly comply with the provisions of Rule 1925(b), or his or her appellate issues are deemed to be waived. Rule 1925(b)(4)(ii) directs that “[t]he Statement shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the
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judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). As the comment to Rule 1925(b) further elaborates:
. . . [C]ounsel should begin the winnowing process when preparing the Statement and should articulate specific errors with which the appellant takes issue and why.
Pa.R.A.P. 1925(b), comment (emphasis added).
Commonwealth v. Parrish, ___ A.3d ___, ___, 2020 WL 355016 at **14-
15 (Pa. Jan. 22, 2020).
We first consider the portion of Appellant’s Rule 1925(b) claim
concerning “mid-trial conferences with a professional witness.” See
Appellant’s 1925b Statement of Matters Complained of on Appeal at 1. The
Rule 1925(b) statement did not identify or offer further explanation about this
“professional witness” or any “mid-trial conference[ ].” See id. Appellant’s
brief, on the other hand, asserts Officer Dewees was improperly “allowed to
confer with the district attorney mid-[cross-]examination,” when defense
counsel was “[taking] the officer to task for his lack of investigation [before]
filing the charges.” Appellant’s Brief at 34. Appellant further contends the
trial court improperly “attempted to coach the District Attorney on how to
rehabilitate her witness, and told her to . . . confer with the officer about how
to testify.” Id. at 35.
We emphasize the trial court did not comprehend the issue Appellant
wished to present. See Trial Ct. Op. at 5. Accordingly, we conclude
Appellant’s Rule 1925(b) statement failed to “assert with sufficient detail to
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identify the issue to be raised for the judge,” and thus this issue is waived.
See Pa.R.A.P. 1925(b)(4)(ii); Parrish, ___ A.3d at ___, 2020 WL 355016 at
**14-15.
The other portion of Appellant’s claim was that the trial court “erred in
conduct with witnesses including not sequestering them from each other.”
Appellant’s 1925b Statement of Matters Complained of on Appeal at 1. We
note that “a request for sequestration must be specific and supported by a
showing that the interests of justice require it.” Commonwealth v.
Counterman, 719 A.2d 284, 299 (Pa. 1998).
The trial court addressed this issue by pointing out that Appellant only
made one request for sequestration — regarding Officer Dewees — and the
court granted it. Trial Ct. Op. at 5, citing N.T., 1/18/18, at 18. However, on
appeal, Appellant alleges that “in violation of sequestration,” Victim, her sister,
and their mother “were permitted to sit together [outside the courtroom] and
tailor[ ] their testimony” about Victim’s “suicide attempt that was never
revealed to anyone prior to trial.” Appellant’s Brief at 31-32. Appellant also
cites, as “evidence for breach of the sequestration,” the uniformity of the three
witnesses’ denial at trial that Victim was the writer of a message, addressed
to Appellant, on the back of Victim’s school photo. Id. at 33. We could
conclude the Rule 1925(b) likewise failed to sufficiently inform the court of
this particular allegation of error, and we could find waiver under Rule
1925(b)(4)(ii). See Trial Ct. Op. at 5.
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Nevertheless, we agree with the Commonwealth’s contention that
Appellant has waived this issue by failing to raise it at trial. See
Commonwealth’s Brief at 19. See Counterman, 719 A.2d at 299 (request
for sequestration must be specific and supported by showing that interests of
justice require it). To this end, we note that in his brief, Appellant contends
that “off the record,” he “requested and was granted sequestration,” as
evidenced by the “on the record . . . side bar” clarification that his wife leave
the courtroom. Appellant’s Brief at 31, citing N.T., 1/17/18, at 3. The page
of the trial transcript cited by Appellant reveals only he requested that his wife
be permitted to stay in the courtroom for opening argument. N.T., 1/17/18,
at 3. The trial court denied this request once Appellant stated she would
testify at trial. Id. The transcript does not indicate — and Appellant does not
claim on appeal — that he ever specifically requested sequestration of Victim,
Sister, and their mother. Furthermore, Appellant raised no objection to any
of these witnesses’ testimony on the ground they had improperly shared their
testimony with each other. Accordingly, this issue is waived. See Pa.R.A.P.
302(a); Counterman, 719 A.2d at 299.
In Appellant’s fourth issue, he alleges the trial court erred in applying
the psychotherapist-patient privilege, both in discovery and at trial, to
preclude evidence of Victim’s mental health diagnoses and medication.
Appellant contends medical records may be admitted to impeach a witness,
and may be admitted where the records have a connection to the subject of
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the litigation and affect a witness’ ability to testify. He asserts Victim “was
apparently suicidal about 24 hours before being examined by a nurse” and
“the precariousness of her mental health may have been based on delusions.”
Appellant’s Brief at 39. Finally, Appellant also requests relief under the
Confrontation Clause. No relief is due.
“We review the trial court’s discovery rulings for abuse of discretion.”
Gonzalez, 109 A.3d at 728. As stated above, the admission of evidence is “a
matter vested within the sound discretion of the trial court.” Id. at 726.
Section 7111 of the Mental Health Procedures Act9 (MHPA), upon which the
trial court relied, provides:
§ 7111. Confidentiality of records
(a) All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section 110;
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
50 P.S. § 7111(a)(1)-(4) (footnote omitted). “The MHPA must be strictly
construed. [It] limits judicial use of mental health records to mental health
9 50 P.S. §§ 7101-7503.
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commitment proceedings unless the patient consents to their use in other
judicial proceedings.” Gonzalez, 109 A.3d at 728, citing Commonwealth v.
Moyer, 595 A.2d 1177, 1179 (Pa. Super. 1991) (emphasis added).
The trial court addressed in further detail the reasons why Appellant
sought Victim’s mental health records, and concluded:
In summary, [Appellant] follows the following argument [sic] for [his] basis of the release of these records. According to [Appellant], it was discovered that [V]ictim had been seen numerous times at this hospital in question, as early as 2007. In 2014, [V]ictim had been seeing a therapist, and was prescribed antipsychotic medications. [Appellant] believes that this information should be available because during [V]ictim’s forensic interview, she claim[ed] that before the incident she had a completely normal life. He claims that these records show that this was actually not accurate, and she actually had problems since 2007, showing that she has a lack of credibility. [The Commonwealth,] however, denied all of these statements. [It] stated that [V]ictim had just expressed that her life had been worse since the [incident] and did not make any suggestions that her life had been incredibly normal before this event.
. . . Since [V]ictim never represented herself in the way that [Appellant] has suggested, the privilege is not waived, and the evidence cannot be admitted. Therefore, the court did not err in denying the introduction of evidence of [V]ictim’s mental health diagnoses, because mental health records are privileged from discovery.
Trial Ct. Op. at 6 (citations to record omitted).
Appellant’s argument does not address — nor dispute — this reasoning
by the trial court. Appellant also fails to address why Section 7111(3) does
not bar the admission of Victim’s mental health records in this criminal
proceeding. See 50 P.S. § 7111(3); Gonzalez, 109 A.3d at 728. In light of
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the foregoing authority and the trial court’s reasoning, no relief is due. See
Gonzalez, 109 A.3d at 726.
Appellant’s fifth claim is that the trial court erred in precluding evidence
of a Facebook message or photo posted by Victim. We first recount that
Appellant filed a pre-trial motion in limine, which alleged that on December 6,
2016, Victim posted on Facebook “an obscene picture” of “a naked woman on
all fours with her bottom in the air. The photo is titled Dick’quil. The caption
reads, ‘That Deep-stroking, Hair pullin, Ass slapping, Gut bangin, Waist
Grippin, Neck choking, Toe curlin, Leg Shakin, Shit talkin medicine TO MAKE
YOU CUM.’” Appellant’s Motion in Limine, 9/8/17, at 2. The motion averred
that on that same day, Victim had participated in a forensic interview, in which
she “describe[d] the alleged rape and how traumatic it has been both
psychologically and emotionally.” Id. Appellant argued the Facebook post
did not violate the Rape Shield Law,10 and he sought to present it in order to
impeach Victim’s credibility. The trial court initially granted this motion, but
at a hearing on October 13, 2017, the Commonwealth requested
reconsideration, arguing the Facebook post was precluded under
Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003) (en banc) (Rape
Shield Law applies to sexual activity that occurred before trial, regardless of
10 18 Pa.C.S. § 3104 (discussed infra).
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whether it was before or after alleged sexual assault). On November 1, 2017,
the court issued an order precluding the Facebook post at trial.
On appeal, Appellant argues the evidence was admissible, not to show
Victim’s promiscuity, but rather to undermine Victim’s credibility pursuant to
Killen, 680 A.2d 851. He avers that in that case, our Supreme Court held
“suggestive statements made by the victim shortly after the alleged sexual
assault were admissible, not to show her promiscuous demeanor, but to
undermine the credibility of her claims that she had been sexually assaulted.”
Appellant’s Brief at 43, citing Killen, 680 A.2d at 854. We note the trial court’s
reasoning for denying Appellant’s motion in limine is not set forth in its opinion
or the certified record.11 Nevertheless, we conclude no relief is due.
The Rape Shield Law, codified at 18 Pa.C.S. § 3104, provides in
pertinent part:
Evidence of specific instances 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 [sexual offense] 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.
11While the trial court’s opinion sets forth relevant law, including the Rape Shield Law statute and a summary of Killen, it did not state its reasons for precluding the proffered evidence. See Trial Ct. Op. at 7.
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18 Pa.C.S. § 3104(a), (c). “The purpose of the Rape Shield Law is to prevent
a sexual assault trial from denigrating into an attack upon the victim’s
reputation for chastity.” Killen, 680 A.2d at 853.
In Killen, upon which Appellant relies, the complainant alleged she was
intoxicated when a uniformed police officer stopped her vehicle “in front of her
apartment for a speeding violation.” Killen, 680 A.2d at 851. The officer
allowed the complainant to go into her apartment to get her driver’s license,
and followed her into the apartment. Id. at 852. The complainant alleged
the officer fondled her, took off his pants and underwear, and pushed her head
in order for her to perform oral sex. Id. The officer left, and shortly thereafter
the complainant reported what had just happened to a neighbor. Id. The
neighbor called an ambulance, and while waiting for it, “observed the
complainant apparently lapse in and out of consciousness twice.” Id. During
the ambulance ride to the medical center, the complainant made “sexually
provocative statements” to the firefighter riding with her, as well as to the
emergency room physician. Id. at 852-53.
At trial, the officer sought to introduce the statements to the fireman
and physician “for the limited purpose of impeaching the complainant’s
credibility by demonstrating her state of mind immediately after the alleged
attack.” Killen, 680 A.2d at 854 (footnote omitted). Our Supreme Court held
the statements did not come within the protective purview of the Rape Shield
Law. Id. It reasoned the statements did “not reference in any way the
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complainant’s past sexual conduct as proscribed by § 3104(a); rather, the
statements evidence the complainant’s state of mind shortly after (and by
implication during) her alleged sexual assault and are therefore relevant and
admissible to impeach her credibility.” Id.
Here, Appellant does not claim that Victim’s alleged Facebook post was
made “shortly after” the incident; we note it would have been made nine
months later. See Killen, 680 A.2d at 854. Instead, Appellant avers the post
was made on the same day Victim participated in a forensic interview. We
disagree that such evidence would show, consistent with Killen, Victim’s state
of mind “shortly after (and by implication during) [the] alleged sexual assault.”
See id. Thus, we disagree that relief is due under Killen.
Furthermore, even if Killen lent Appellant relief, he makes no argument
on appeal regarding Jones, the decision cited by the Commonwealth at the
October 13, 2017, hearing. In Jones, this Court held the Rape Shield Law
does not only preclude evidence of a victim’s sexual conduct that occurred
prior to an alleged sexual assault, but the Rape Shield Law “must be read
more broadly” to include “the complainant's entire sexual history that has
occurred before trial.” Jones, 826 A.2d at 908 (emphasis added).
Considering this authority together, as well as our standard of review —
that the admission of evidence was vested within the trial court’s sound
discretion — we conclude the alleged Facebook post by Victim was properly
precluded, and that Appellant is not entitled to relief under Killen. See
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Gonzalez, 109 A.3d at 726. We note the Pennsylvania Supreme Court has
recently granted allowance of appeal to consider Jones. Commonwealth v.
Rogers, 523 EAL 2019 (Pa. Feb. 12, 2020). Nevertheless, where the
Supreme Court has not yet issued a decision, Jones remains binding on this
Court. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).
In Appellant’s sixth issue, he avers the trial court erred in denying his
request for “Jury Instruction[ ] 3.21B (failure to produce Documents or Other
Tangible Objects),” with respect to the “missing clothes” that Victim was
wearing during the incident, and “4.08A (Impeachment by Inconsistent
Statements),” with respect to the “dramatic” alterations, “through the course
of this case,” to “many important details, from the date of the incident to
conduct after the incident.” Appellant’s Brief at 45-46; see N.T., 1/18/18, at
67.
The Commonwealth contends Appellant has waived this issue for failure
to object to the jury instructions as given. Commonwealth’s Brief at 30. “No
portions of the charge nor omissions from the charge may be assigned as
error, unless specific objections are made thereto before the jury retires to
deliberate.” Pa.R.Crim.P. 647(C) (emphasis added). Under Rule 647(C), the
failure to object or take exception to a jury instruction before the jury
retires to deliberate results in waiver of review of the instruction.
Commonwealth v. Laird, 988 A.2d 618, 646 (Pa. 2010). See also
Commonwealth v. Cosby, 224 A.3d 372, ___, 2019 WL 6711477 at ** 37-
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38 (Pa. Super. Dec. 10, 2019) (party’s “objections at the charging conference
were not sufficient to preserve his challenge to the consciousness-of-guilt jury
charge issued by the trial court because he did not also object when the charge
was given to the jury”).
Here, the trial court conducted a pre-charging conference following the
presentation of evidence. N.T., 1/18/18, at 66-67. Appellant recounted to
the court that it had requested the “3.21B” and “4.08A” instructions, but the
court had denied it. Id. at 67. The parties then gave closing arguments, id.
at 70-105, and the court issued its instructions to the jury. Id. at 105-28.
No objections were made during the instructions. See id. Thereafter, the
court asked the parties whether they had any objections, and Appellant
objected only to the court’s misstatement of a date of a forensic interview.
Id. at 128-29. The court agreed, and advised the jury of the correct date.
130-131. No other objections were raised before the jury retired to deliberate.
See id. at 131. Although Appellant had requested certain instructions, which
were denied, he did not object to the instructions as they were in fact given.
According, this issue is waived for our review. See Pa.Crim.P. 647(C); Laird,
988 A.2d at 646; Cosby, 224 A.3d at ___, 2019 WL 6711477 at ** 37-38.
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In his final issue, Appellant avers the verdict was against the weight of
the evidence.12 He contends this Court “can see that the complaining
witnesses all altered their stories, failed to accurately account for time, and
were directly contradicted by their own statements in written accounts from
the hospital, forensic interview, and police statement.” Appellant’s Brief at
52. Appellant also contends “the medical records” contained no evidence of
sexual assault, and there was “blatant lack of follow through and investigation
by” Officer Dewees. Id. at 53. We disagree.
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact.
Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations
omitted). It is well established “that uncorroborated testimony of the victim
can be sufficient to sustain a conviction of rape.” Commonwealth v. Loner,
836 A.2d 125, 137 (Pa. Super. 2003).
12 In this issue, Appellant does not reference any of his convictions, let alone discuss which elements of which offense were allegedly not established.
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Appellant fails to acknowledge any of these principles. His argument
wholly ignores the role of the jury, who as the finder of fact, was “free to
believe all, part, or none of the evidence and to determine the credibility of
the witnesses.” See Champney, 832 A.2d at 408. Appellant also ignores
that the trial court denied relief on this issue as raised in his post-sentence
motion. See Order, 5/4/19. The court reasoned that “[e]ven with any
perceived absence of ‘investigatory information,’” Victim’s testimony
supported the jury’s verdict. Trial Ct. Op. at 8-9. Appellant’s argument would
have this Court conduct de novo review of the record and supplant the jury’s
findings with our own. This we cannot do. See Champney, 832 A.2d at 408.
In sum, we conclude Appellant has waived his challenges to: portions of
Nurse Lynch’s testimony; the court’s alleged failure to sequester witnesses
and error “in allowing mid-trial conferences with a professional witness;” and
the jury instructions. See Appellant’s Brief at 31. We further hold: no relief
is due to Appellant under Brady; the trial court properly precluded Victim’s
mental health records under the psychotherapist-patient privilege; the court
properly precluded evidence of an alleged Facebook post by Victim, and the
verdict was not against the weight of the evidence. Accordingly, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/20/2020
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