J-S36010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY WAYNE GEPHART                         :
                                               :
                       Appellant               :   No. 1707 MDA 2018

        Appeal from the Judgment of Sentence Entered January 15, 2016
                 In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000584-2014


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 07, 2019

        Gary Wayne Gephart appeals nunc pro tunc from the judgment of

sentence imposed after a jury convicted him of one count of involuntary

deviate sexual intercourse, see 18 Pa.C.S.A. § 3123(a)(5), one count of

aggravated indecent assault, see 18 Pa.C.S.A. § 3125(a)(6), and one count

of indecent assault, see 18 Pa.C.S.A. § 3126(a)(6). All three offenses were

predicated on the complainant having a mental disability. The court imposed

an aggregate sentence of nine to eighteen years of incarceration. Gephart

challenges the sufficiency of the evidence and further claims the trial court

abused its discretion when it denied the admittance of certain evidence. We

affirm.


____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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      Gephart was convicted as the result of a September 22, 2012 incident

wherein he went to the victim’s apartment and had oral and vaginal

intercourse with the victim. The victim was fifty-nine years of age, but had

the mental capabilities of someone who is nine years of age.

      Gephart’s stated reason for going to the victim’s apartment was to give

her a VCR and to fix her table. He also brought a bottle of lotion with him to

give the victim a massage. Eventually, Gephart and the victim engaged in

sexual activity, and the testimony adduced at trial offered conflicting accounts

of who performed oral sex on whom. However, while Gephart indicated that

the victim made the initial sexual advance and stated that he was under the

impression the victim wanted to engage in sexual acts, Gephart admitted to

having digitally penetrated her vagina. After the sexual activity concluded,

Gephart testified that he helped the victim in cleaning out a birdcage.

      Two days later, the victim confided in another and indicated that she

explicitly told Gephart that she had not wanted to engage in sexual activity

with him and further told him to stop. The police were then contacted, and

charges were filed.

      At trial, the Commonwealth utilized the opinion of Dr. Michael Wolff. The

trial court accepted him as an expert in clinical psychology over Gephart’s

objection. Based on, inter alia, a general sexual knowledge questionnaire

(“GSKQ”), Dr. Wolff rendered an opinion that the victim could not consent to

sexual activity.




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      A jury found Gephart guilty of three charges, and he was sentenced on

January 15, 2016. Gephart filed a timely post-sentence motion, which was

denied after a hearing. Several months later and having taken no direct

appeal, Gephart filed a pro se petition, pursuant to the Post Conviction Relief

Act (“PCRA”), with each of his claims alleging ineffective assistance of counsel.

See 42 Pa.C.S.A. §§ 9541-9546.

      Gephart was then provided with PCRA counsel. Eventually, after an

evidentiary hearing, the PCRA court granted Gephart’s petition in part and

denied it in part. In doing so, the PCRA court restored Gephart’s direct appeal

rights for trial counsel’s failure to take a direct appeal, but explicitly denied all

other facets of his petition. See Appellant’s Brief, at 9-13 (citations to the

record omitted); Appellee’s Brief, at 2-4 (citations to the record omitted). This

nunc pro tunc appeal followed.

      In his appeal, Gephart raises six questions for our consideration:

      1) Was the evidence presented at trial insufficient to sustain
      Appellant’s convictions because each count required the
      Commonwealth to prove the victim was incapable of providing
      consent[,] and the Commonwealth failed to prove this beyond a
      reasonable doubt?

      2) Did the trial court abuse its discretion in failing to admit
      evidence that the victim was not married and gave birth to
      children because such evidence was not being offered for the
      purposes of attacking the victim’s reputation for chastity, but was
      instead being offered for the purposes of showing she had the
      legal capacity to get legally married, consent to sexual
      intercourse, and have children?

      3) Did the PCRA [c]ourt err by not finding trial counsel provided
      ineffective assistance of counsel when she failed to attempt to

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       exclude prior to trial the admission of impeachment evidence of
       Appellant’s prior criminal convictions pursuant to Pa.R.E. 609(b)?

       4) Did the PCRA [c]ourt err in finding that the trial counsel did not
       provide ineffective assistance of counsel by failing to request a
       Frye hearing to determine if Dr. Wolff’s methodologies were
       generally accepted in the relevant scientific community?

       5) Did the PCRA [c]ourt err in finding that trial counsel did not
       provide ineffective assistance of counsel by failing to present
       expert testimony?

       6) Did the PCRA [c]ourt err in preventing Appellant the ability to
       investigate the alleged psychological evaluation conducted by the
       Penn State Psychological Clinic[] of the victim held on October 28,
       2013?

Appellant’s Brief, at 5-6.

         In spite of receiving the right to appeal nunc pro tunc, Gephart’s issues

three through six challenge the PCRA court’s determinations, with three of

them unambiguously dealing with ineffective assistance of counsel concerns

and the fourth one implicitly addressing the same.1 Thus, Gephart has

included two sets of questions: one being appropriate for a direct appeal and

the other suited for a collateral PCRA appeal.

       Once a PCRA court determines that a petitioner’s direct appeal rights

must be reinstated, the court may not proceed to address other issues raised

in the PCRA petition. See Commonwealth v. Harris, 114 A.3d 1, 3-4. In



____________________________________________


1 In his sixth issue, Gephart challenges the PCRA court’s decision to deny him
the ability to obtain discovery regarding a claim that the Commonwealth failed
to disclose a prior psychological evaluation of the victim. He argues this
information could have been germane to a claim that trial counsel was
ineffective. See Appellant’s Brief, at 61.

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these situations, the PCRA court should grant the petitioner leave to file a

direct appeal and end its inquiry. See id.

       The PCRA court should end its inquiry because, by restoring the

petitioner’s direct appeal rights, it has rendered the petitioner’s judgment of

sentence non-final. See id., at 6. Therefore, the PCRA court lacks jurisdiction

to address the remainder of the petition. See id. Here, the PCRA court

restored Gephart’s direct appeal rights. As a result, all other determinations

made in the PCRA court’s order granting nunc pro tunc appeal rights are a

legal nullity, as it did not have jurisdiction to consider such issues. In effect,

Gephart’s issues three through six are denied without prejudice until his

judgment of sentence becomes final, and we proceed with a discussion on his

two direct appeal arguments.2

       Gephart’s first contention is that insufficient evidence was presented to

demonstrate that the victim was incapable of consent. “A claim challenging

the sufficiency of the evidence is a question of law.” Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000).

____________________________________________


2 We again note that the PCRA court held a hearing on what appears to be all
of the claims that are presently being denied without prejudice. “The law in
this area recognizes that although the PCRA court may not properly review
the merits of the substantive claims when direct appeal rights have been
violated, that court’s review will serve the evidentiary purpose of completing
the record for appellate review.” Harris, 114 A.3d at 6 n.4 (citation omitted)
(formatting altered). “Thus, after his direct appeal rights have been exhausted
or extinguished and his judgment of sentence becomes final, [Gephart] may
seek collateral relief on the grounds previously raised; the PCRA court may
use the already developed evidentiary record and may supplement that record
as it sees fit.” Id.

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      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant's guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

      Gephart attacks Dr. Wolff’s testimony, methodology, and findings when

he offered his opinion that the victim was incapable of consent. See

Appellant’s Brief, at 24-29. Dr. Wolff relied upon the GSKQ to form the basis

of his opinion. Through his evaluation, Dr. Wolff, inter alia, concluded that the

victim had significant verbal reasoning problems.

      Gephart points out that Dr. Wolff testified that the GSKQ assesses an

individual’s ability to communicate. See N.T., 9/28/15, at 40. Gephart

contends, however, that there was inadequate consideration given to the

distinction between her inability to express herself verbally versus her ability

to understand sexual topics. Gephart highlights that the victim performed

either average or above average on other components of the questionnaire.


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See Appellant’s Brief, at 25-26. Consequently, Gephart maintains “it is more

likely that the victim actually had the sexual knowledge but could not

communicate her answers[.]” Id., at 27.

      Gephart also emphasizes Dr. Wolff’s acknowledgment of certain

methodological flaws when seeking verbal responses from the victim.

Moreover, Gephart stresses that the victim’s testimony indicated that she

wanted a massage from Gephart and said no to anything further, even though

Dr. Wolff was surprised by the victim’s ability to manifest this response. And

finally, Gephart argues that the fact that Dr. Wolff sought the victim’s

signature for the disclosure of confidential information implied that Dr. Wolff

believed she understood the import of what she was allowing to be disclosed.

      Gephart provides no authority that would allow this Court to conclude

that Dr. Wolff’s methodology was scientifically erroneous, that the victim

saying “no” inherently implies she had the legal capability to consent to sexual

contact, or that the victim’s signature to a medical disclosure has any

relevance to her being able to consent to sexual activity. Dr. Wolff

administered the GSKQ to “assess her ability to report on information she had

[and to determine whether] she was able … to communicate in terms of things

like her general sexual knowledge, physiology, contraception, pregnancy,

sexual orientation.” N.T., 09/28/15, at 40. The GSKQ “runs through a series

of questions, and … [the victim’s] score on that measure is then compared

both to the typical population, the average population, but it’s also …


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compared to individuals with intellectual disabilities.” Id. Dr. Wolff also found

that the victim had an intellectual disability “[b]ased on the evidence that was

from two separate, distinct intellectual evaluations that generated an IQ score

that fell within the range of a mild intellectual disability.” Id.

      On the GSKQ, the victim received a total score that was below the

average score of people with intellectual disabilities. See id., at 58.

Accordingly, Dr. Wolff concluded “[t]hat her knowledge regarding sexual

information is significantly impaired.” Id. When      asked    specific   sexually-

related questions, while the victim answered some questions correctly, she

also answered “I don’t know” to concepts related to male genitalia. Id., at 95.

Further, she was unable to provide accurate answers in response to basic

questions related to puberty, menstruation, and female genitalia. See id., at

95-98.

      At trial, Gephart did not offer any scientific contradiction to the methods

employed by Dr. Wolff nor did he utilize an expert to provide a different

methodological testing regime or to discount Dr. Wolff’s opinion. While there

is obviously some level of subjectivity associated with the type of examination

performed by Dr. Wolff, we find that there was sufficient evidence to enable

the fact-finder to determine that the victim was unable to consent to sexual

activity.

      Our sufficiency of the evidence standard requires this Court to view such

evidence in the light most favorable to the verdict winner, and we see no


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reason to disturb the outcome of this case. See Antidormi, 84 A.3d at 756.

It is not within our purview to weigh the evidence and then substitute our

judgment for that of the fact-finder. See id. As evidence exists in the record

demonstrating the victim’s inability to consent to sexual activity, and it was

the fact-finder’s duty to either believe, partially believe, or not believe the

evidence presented by Dr. Wolff, we find that Gephart is due no relief on this

issue.

         In his second argument, Gephart insists the trial court erred when it

failed to admit evidence that the victim was married and gave birth to children.

In effect, Gephart wishes to surmount the general prohibition against

admission of evidence of the victim’s past sexual activity established by

Pennsylvania’s Rape Shield Law, which states that past sexual conduct of the

victim will not be admissible in prosecutions of crimes involving sexual abuse.

See 18 Pa.C.S.A. § 3104(a).

         We have recognized that there are rare cases permitting an accused the

opportunity to present genuinely exculpatory evidence even in spite of the

Rape Shield Law. See Commonwealth v. Wall, 606 A.2d 449, 457 (Pa.

Super. 1992) (citation omitted). Specifically, we have held that

         the Rape Shield Law permit[s] admission of evidence of the
         victim's prior sexual activity ... provided that a three-part test was
         met at an in camera hearing similar to that outlined in 18
         Pa.C.S.A. § 3104(b). Specifically, the trial court is to determine:
         (1) whether the proposed evidence is relevant to show bias or
         motive or to attack credibility; (2) whether the probative value of
         the evidence outweighs its prejudicial effect; and (3) whether


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      there are alternative means of proving bias or motive or to
      challenge credibility.

Commonwealth v. Fink, 791 A.2d 1235, 1241-42 (Pa. Super. 2002)

(citation and footnote omitted). Gephart appears to have followed the

“proposal of evidence” procedure, as outlined in 18 Pa.C.S.A. § 3104(b).

      “This Court has established that a trial court’s ruling on the admissibility

of a sexual abuse victim’s prior sexual conduct will be reversed only where

there has been a clear abuse of discretion.”               Commonwealth v.

Largaespada, 184 A.3d 1002, 1006 (Pa. Super. 2018) (citation omitted).

      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied or the
      judgment exercised in manifestly unreasonable, or the result of
      partiality, prejudice, bias, or ill will, as shown by the evidence or
      the record, discretion is abused.

Id. (citation omitted).

      Gephart sought to admit evidence that the victim was both married and

had children from that marriage for the purpose of demonstrating that she

was legally capable of consenting to sexual activity. See Appellant’s Brief, at

31. To Gephart, “evidence of past sexual conduct [should be] admissible to

show that a victim has the legal capacity to do[] so.” Id.

      The trial court permitted testimony demonstrating that the victim was

married at the time of the sexual assault. See PCRA Court Opinion, 11/30/18,

at 2. However, it excluded any evidence or testimony regarding the victim’s

pregnancies and past sexual conduct, finding such information to be

irrelevant. See id., at 2-3. Therefore, to the extent Gephart argues that he

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was somehow prohibited from eliciting testimony demonstrating the victim’s

marriage, such a contention is contradicted by the record. See Order,

09/28/15 (“[Gephart] shall not be barred from introducing the fact that on

September 22, 2012, the complaining witness was at that time married.”).

      As to the admissibility of the victim having been pregnant, “[a] person

is able to become pregnant without having the capacity to give consent to

sexual intercourse. That is, consent is not necessary to become pregnant.”

Commonwealth v. Thomson, 673 A.2d 357, 361 (Pa. Super. 1996).

Although Thomson was not decided under the Rape Shield Law, the language

used in that decision clearly has import in this case.

      Here, the trial court, in performing a balancing test, found not only that

evidence of a prior pregnancy was not relevant and probative to the question

of whether the victim was capable of consenting to sexual activity, but also

that the likelihood of prejudice to the victim as a result of this disclosure was

high. We perceive no abuse of discretion in this conclusion.

      The mere fact that the victim became pregnant and then carried children

to term does not, by itself, establish that the victim was therefore capable of

consenting to sexual encounters generally. At a minimum, the balancing test

performed by the trial court, wherein the court allowed evidence of the victim’s

marriage, but not evidence of her pregnancies, was not manifestly

unreasonable or a misapplication of law.




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     As we find neither of Gephart’s issues to be meritorious, we affirm his

judgment of sentence.

     Judgment of sentence affirmed.

     Judge Shogan joins the memorandum.

     Judge Pellegrini concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/07/2019




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