J-A22002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TAYLOR ALFRED ROSSI                        :
                                               :
                       Appellant               :   No. 1979 EDA 2018

          Appeal from the Judgment of Sentence Entered June 20, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0003595-2017


BEFORE:      MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                             FILED OCTOBER 04, 2019

        Taylor Alfred Rossi (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of rape of an unconscious person, sexual

assault, and indecent assault of an unconscious person.1 Upon review, we

affirm.

        On April 4, 2017, the Commonwealth filed a criminal complaint alleging

that Appellant committed the above crimes while attending a New Year’s party

from December 31, 2016-January 1, 2017. Prior to trial, Appellant filed a

motion in limine seeking to introduce evidence “regarding the sexually explicit

dance that occurred in front of him” between his girlfriend and the victim,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3121, 3124.1, and 3126.
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which occurred “only a couple hours before” the alleged sexual assault. See

Appellant’s Brief at 14.   Appellant argued that the evidence “impacted the

credibility” of the victim as to “whether or not the sexual encounter with

Appellant was consensual.” Id. The trial court denied the motion based on

18 Pa.C.S.A. § 3104 (Rape Shield Law).

      A three-day jury trial was held from February 12 – 14, 2018. The trial

court recounted:

      The prosecution’s first witness was a party attendee named
      Nicholas Michael Minor. He testified that [the victim] had been
      drinking that night and she was intoxicated to the point of
      “stumbling all over the place and then later vomit[ing] all over the
      first floor.” [The victim] was subsequently escorted to a bedroom
      on the third floor of the home to lie down and sleep. Mr. Minor
      went up to the bedroom “about every 15 minutes” to check on
      [her] condition. He testified that she was “mostly asleep the
      whole time.” She answered his questions about her condition with
      tired mumbling responses. On one occasion, Mr. Minor observed
      [Appellant] lying on the bed with her. He felt uncomfortable with
      this situation and went downstairs to tell [Appellant’s] girlfriend to
      get [him] out of the bed. Mr. Minor then returned upstairs,
      approached the bedroom and heard sounds of movement and the
      mumbled voice of [the victim] saying “stop.” He entered the
      bedroom and observed that [Appellant] and [the victim] both had
      their pants off with their genitals exposed. [Appellant] was on top
      of [the victim] penetrating her vagina with his penis while she
      kicked her legs and said “stop” and “no.” Mr. Minor then grabbed
      [Appellant] and pulled him off [the victim].

             Mr. Minor then went downstairs with [Appellant] while [the
      victim] remained upstairs. Mr. Minor relayed what he had
      witnessed to Michele Leichter, Kate Kirch, and others at the party.
      Ms. Leichter testified that Mr. Minor told her that [Appellant] was
      “having sex with a girl who was, herself, unconscious.” After
      hearing this Ms. Leichter confronted [Appellant] who told her that
      he “f’d up” and “made a mistake.”




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           [The victim] testified she had been drinking throughout the
     night. She stated she had two glasses of wine, two shots, and a
     mixed drink that she did not finish, all within a short period of
     time. She remembered becoming intoxicated and eventually
     vomiting. Her memory after that was hazy, but she was told that
     she was taken to a bedroom on the top floor of the house. Her
     next clear memory was waking up without pants on and
     [Appellant] on top of her penetrating her vagina with his penis.
     [The victim] remembered saying “no,” followed by a period that
     she did not remember. The next thing she remembered was
     crying in the bedroom and being consoled by her friends who
     informed her that [Appellant] had been kicked out of the party.
     She testified that although she intended to report the incident to
     police, she was not in a condition to do so that night.

            [The victim] returned home at about noon on New Year’s
     Day. She told her parents what had happened and they took her
     to Abington Hospital. A “rape kit” examination was performed at
     the hospital and [the victim] then proceeded directly to the
     Norristown police station to provide a statement. The examination
     for the rape kit was administered by Kristen Knottek, R.N. Ms.
     Knottek testified that she performed a genital examination of [the
     victim] using a speculum. Swabs were taken from [the victim’s]
     cervix, vagina, labia, and rectum. DNA analysis was performed
     on these swabs by the Pennsylvania State Police Bureau of
     Forensic Services in conjunction with buccal swabs collected from
     [Appellant]. The parties stipulated that, if called to testify,
     Melinda Charley would be qualified as an expert in the field of DNA
     analysis and would testify that she analyzed the swabs collected
     from [the victim] and the DNA profile obtained from the swabs of
     [Appellant] and concluded “[Appellant] and his paternal male
     relatives could not be excluded as the contributor of the DNA
     found on the vaginal and labia swabs.”

            [Appellant], age 25, testified that he arrived at the party
     around 9:00 p.m. He began drinking after he arrived. He was
     familiar with [the victim] since they worked at the same bakery
     together.    After midnight, in an intoxicated state, [Appellant]
     went looking for a place to sleep. [Appellant] testified he came
     upon the bedroom where [the victim] was and did not initially
     realize she was in the bed. He then noticed that [the victim] was
     in the bed and that her pants were off, but she was wearing
     underwear. [Appellant] testified that [the victim] then motioned
     for him to join her in the bed. [Appellant] and [the victim] then

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      began kissing and fondling. He used his fingers to penetrate her
      vagina. [Appellant] testified he was unable to become aroused.
      He attempted to have intercourse with [the victim], but was
      unable to do so.       After attempting unsuccessfully to have
      intercourse with [the victim], she told him “[n]o, forget it, get
      out[,]” at which point he buttoned his pants, left the bedroom,
      and went back downstairs. [Appellant] testified there was no
      indication from [the victim], either verbally or otherwise, that she
      was not a willing participant in this interaction or that she was
      asleep or unconscious at any point.

            [Appellant] stated Mr. Penhollow was in the room when [the
      victim] told [Appellant] to get out, but at no point did Mr. Minor
      come into the bedroom and pull him off [the victim]. After
      returning downstairs, many people were yelling at him and asking
      him what happened, but he did not remember any specific
      conversations. He was told to wait outside while [his girlfriend]
      got his things and he then left with her.

Trial Court Opinion, 9/17/18, at 2-5 (footnotes and citations to notes of

testimony omitted).

      The jury convicted Appellant of rape of an unconscious person, sexual

assault, and indecent assault of an unconscious person. On May 14, 2018,

the trial court sentenced Appellant to an aggregate four to eight years of

incarceration, followed by six years of probation. Appellant filed a motion for

reconsideration of sentence, and on June 20, 2018, the court vacated the May

14, 2018 sentence, and re-sentenced Appellant to three to six years of

incarceration, followed by seven years of probation. Appellant filed a timely

appeal. Both Appellant and the trial court have complied with Pennsylvania

Rule of Appellate Procedure 1925.

      Appellant presents three issues on appeal:

      I.    WHETHER THE TRIAL COURT ERRED IN DENYING
            [APPELLANT’S] MOTION IN LIMINE TO INTRODUCE

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             EVIDENCE OF THE SEXUALLY EXPLICIT DANCE DISPLAY
             BETWEEN    THE    COMPLAINANT   AND    APPELLANT’S
             GIRLFRIEND THAT OCCURRED JUST A COUPLE HOURS
             PRIOR TO THE ALLEGED SEXUAL ASSAULT AS IT IMPACTED
             THE COMPLAINANT’S CREDIBILITY?

      II.    WHETHER THE TRIAL COURT ERRED IN FAILING TO
             PROVIDE A CURATIVE INSTRUCTION AFTER THE KEY
             PROSECUTION WITNESS TESTIFIED REGARDING THE
             “GOOD CHARACTER” OF THE COMPLAINANT?

      III.   WHETHER THE PROSECUTOR COMMITTED MISCONDUCT BY
             INTENTIONALLY ELICITING THE TESTIMONY FROM A
             WITNESS THAT SHE WAS A RAPE VICTIM?

Appellant’s Brief at 13.

      In his first issue, Appellant argues that the trial court erroneously relied

on the Rape Shield Act in denying Appellant’s motion in limine seeking to

introduce evidence that the victim “danced in a sexually provocative manner

with Appellant’s girlfriend a couple of hours before the alleged sexual assault.”

Appellant’s Brief at 16. Appellant asserts that evidence of the two women

dancing was admissible under the Rape Shield Act because “the defense in

this case was consent and the proffered evidence of the complainant’s prior

sexual conduct . . . with the Appellant’s girlfriend . . . was arguably in an

attempt to lure or engage the Appellant into a consensual sexual act.” Id. at

19.

      We explained:

            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. K.S.F., 102 A.3d 480, 483 (Pa. Super. 2014).
      “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

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      judgment exercised is 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 and quotation
      omitted).

             The Rape Shield Law restricts the introduction of evidence
      of a victim’s past sexual conduct and provides, in pertinent part,
      as follows:

         Evidence of specific instances of the alleged victim’s past
         sexual conduct, opinion evidence of the alleged victim's
         past sexual conduct, and reputation evidence of the alleged
         victim’s past sexual conduct shall not be admissible in
         prosecutions under this chapter except evidence of the
         alleged victim’s past sexual conduct with the
         defendant where consent of the alleged victim is at
         issue and such evidence is otherwise admissible
         pursuant to the rules of evidence.


      18 Pa.C.S. § 3104(a). The purpose of the Rape Shield Law is “to
      prevent a trial from shifting its focus from the culpability of the
      accused toward the virtue and chastity of the victim.”
      Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009)
      (citation omitted). Moreover, “[t]he Rape Shield Law is intended
      to exclude irrelevant and abusive inquiries regarding prior sexual
      conduct of sexual assault complainants.” Id.

Commonwealth v. Largaespada, 184 A.3d 1002, 1006 (Pa. Super. 2018)

(emphasis added to language of Section 3104).

      Appellant seeks to introduce evidence of the victim’s conduct under the

exception to the Rape Shield Law that allows “evidence of the alleged victim’s

past sexual conduct with the defendant where consent of the alleged victim is

at issue.”   However, Appellant concedes that the alleged sexual conduct

occurred between the victim and Appellant’s girlfriend – not Appellant – and




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the conduct “was arguably an attempt to lure or engage the Appellant into a

consensual sexual act.” Appellant’s Brief at 19 (emphasis added).

      To the extent Appellant seeks an evidentiary exception to the Rape

Shield Act unrelated to the victim’s “conduct with the defendant,” we note:

      [T]his Court has recognized several other exceptions in an effort
      “to reconcile the effect of the statute in excluding evidence with
      the accused’s sixth amendment right to confrontation and cross-
      examination.” Commonwealth v. Guy, 454 Pa.Super. 582, 686
      A.2d 397, 400 (1996). Established exceptions include evidence
      that negates directly the act of intercourse with which a defendant
      is charged, evidence demonstrating a witness’ bias, or evidence
      that attacks credibility. Commonwealth v. Allburn, 721 A.2d
      363, 367 (Pa. Super. 1998). Notably, “evidence tending to
      directly exculpate the accused by showing that the alleged victim
      is biased and thus has a motive to lie, fabricate, or seek retribution
      is admissible at trial.” Guy, supra at 400.

Largaespada, 184 A.3d at 1007.

      Viewing Appellant’s evidentiary argument in conjunction with pertinent

statutory and case law, we discern no abuse of discretion by the trial court in

ruling that Appellant’s proffered evidence was inadmissible. The trial court

observed that Appellant’s offer of proof did not include any positive indication

from the victim regarding her desire for Appellant to join her and Appellant’s

girlfriend, and made “no reference to any communication at all between [the

victim] and [Appellant] during this interaction,” such that Appellant’s offer of

proof did not “pierce the rape shield protection afforded to the victim.” Trial

Court Opinion, 9/17/18, at 7. The trial court also concluded that if there “was

any probative value at all to the proffered evidence, it is greatly outweighed

by the prejudice and underlying policy considerations of the rape shield

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statute.” Id. Indeed, upon review, we find the trial court’s discussion of this

issue to be both comprehensive and persuasive, such that we adopt and

incorporate it with our determination that this first issue lacks merit. See id.

at 6-9.

      In his second issue, Appellant assails a statement at trial made by Mr.

Minor, whom Appellant characterizes as the “key prosecution witness,”

arguing that the issue is not waived even though Appellant failed to object to

Mr. Minor’s statement. See Appellant’s Brief at 32. Appellant asserts that “in

certain circumstances the evidence is so clearly unduly prejudicial that a

curative instruction is immediately provided by the court sua sponte [and]

must be provided whether or not the instruction is requested by the defense.”

Id.

      Appellant takes issue with the following testimony elicited from Mr.

Minor on direct examination:

      COMMONWEALTH:            You described [the victim’s] demeanor at
      certain points in time. What was her demeanor at the beginning
      stages of the night of New Year’s Eve and, you know, as you knew
      her before New Year’s Eve 2016 to ’17?

      MR. MINOR:       Before, she was a very nice person. Like she
      was very – she cared about everybody. She was a very sweet
      and open person to – you know enlighten people’s day [sic]. She
      was a very nice person.




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N.T., 2/12/18, at 140.2

       Appellant claims the above testimony of the victim’s “good character is

unduly prejudicial” and therefore inadmissible despite his failure to object.

Appellant’s Brief at 31. He emphasizes that the testimony “should have been

the subject of an immediate sua sponte instruction by the court in order to

ameliorate the devastating impact of this inadmissible and unduly prejudicial

testimony.” Id. at 35. We disagree.

       Pennsylvania Rule of Appellate Procedure 302 unequivocally provides

that issues not raised in the lower court are waived and cannot be raised for

the first time on appeal. This is a fundamental rule of appellate practice. Our

Supreme Court has stated:

       [I]t is axiomatic that issues are preserved when objections are
       made timely to the error or offense. See Commonwealth v.
       May, 584 Pa. 640, 887 A.2d 750, 761 (2005) (holding that an
       “absence of contemporaneous objections renders” an appellant's
       claims waived); and Commonwealth v. Bruce, 207 Pa.Super. 4,
       916 A.2d 657, 671 (2007), appeal denied, 593 Pa. 754, 932 A.2d
       74 (2007) (holding that a “failure to offer a timely and specific
       objection results in waiver of” the claim). Therefore, we shall
       consider any issue waived where Appellant failed to assert a timely
       objection.

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008).




____________________________________________


2 After Mr. Minor answered the question about the victim’s demeanor before
the New Year’s party, the Commonwealth then asked “Have you noticed any
change in her demeanor since this happened?” N.T., 2/12/18, at 140. At that
point, defense counsel objected as “beyond the scope of cross-examination”
and the trial court sustained the objection. Id.

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      Further, to the extent the trial court perceives that testimony is

inappropriate and is compelled to address it sua sponte, the Supreme Court

has stated that it is within the sound discretion of the trial court to determine

whether a curative instruction is necessary. See, e.g., Commonwealth v.

Sanchez, 82 A.3d 943, 982 (Pa. 2013).

      Here, the trial court was not compelled to react sua sponte to Mr. Minor’s

testimony, and upon review, found the issue to be waived because Appellant

did not object to the question or move to strike the answer. See Trial Court

Opinion, 9/17/18, at 9. The court observed that Appellant “did not request a

curative instruction to Mr. Minor’s testimony at the time it was given or at any

later time in the trial.” Id. Consistent with the foregoing, we agree that the

issue is waived.

      In his third and final issue, Appellant claims that he was unduly

prejudiced by the Commonwealth’s “misconduct by intentionally eliciting the

testimony from a witness that she was a rape victim.” Appellant’s Brief at 36.

Appellant objected to the witness’s testimony and the trial court sustained the

objection; however, Appellant claims he was prejudiced by the court’s failure

to provide a cautionary instruction. Id. Notably, Appellant concedes that trial

counsel did not request a cautionary instruction or move for a mistrial. Id. at

37. Appellant nonetheless insists that he was unduly prejudiced and deprived

of a fair trial. Id. Once again, we find waiver. As the trial court explained:

            No remedy was requested at the time of trial regarding the
      witness’ answers. No claim was raised at trial regarding any

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     alleged prosecutorial misconduct. Thus, the issue has been
     waived. See Commonwealth v. Jones, 460 A.2d 739, 741 (Pa.
     1983) (finding prosecutorial misconduct claim waived where
     defense counsel immediately objected to the prosecutor’s conduct
     but failed to request mistrial or curative instructions); cf.
     Commonwealth v. Rhone, 619 A.2d 1080, 1083 (Pa. Super.
     1993) (declining to find waiver for prosecutorial misconduct where
     counsel failed to request curative instruction, but lodged an
     objection, moved to strike the comment and requested a mistrial).

            “[A] claim of prosecutorial misconduct must be viewed in
     the light of the entire context in which the alleged misconduct
     arose.” Commonwealth v. LaCava, 666 A.2d 221, 235 (Pa.
     1995). The prosecutor’s inquiry into this subject was in response
     to [Appellant’s] own cross-examination regarding how [the
     witness] characterized what she was told by Mr. Minor when giving
     her statement to the detective. “Having ‘opened the door’ to this
     subject, [Appellant] cannot now complain because the
     Commonwealth chose to further examine what was behind that
     door.” Id. at 234.

Trial Court Opinion, 9/17/18, at 14-15.

     Finally, we note with regard to Appellant’s second and third issues, that

even in the absence of waiver, and assuming arguendo that the issues were

preserved, Appellant would not be entitled to relief. We have stated:

     If a trial court abuses its discretion in issuing an evidentiary ruling,
     “a verdict can still be sustained if the error was harmless.”
     Commonwealth v. Poplawski, 634 Pa. 517, 130 A.3d 697, 716
     (2015) (citation omitted). In Commonwealth v. Cooley, 632
     Pa. 119, 118 A.3d 370 (2015), our Supreme Court explained that
     “[a]n error is harmless if it could not have contributed to the
     verdict. In other words, an error cannot be harmless if there is a
     reasonable possibility the error might have contributed to the
     conviction.” Cooley, 118 A.3d at 380 (citation omitted); see also
     Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202, 214–
     15 (2003) (“An error will be deemed harmless where the appellate
     court concludes beyond a reasonable doubt that the error could
     not have contributed to the verdict.”).




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            Harmless error exists where: (1) the error did not
            prejudice the defendant or the prejudice was de
            minimis; (2) the erroneously admitted evidence was
            merely cumulative of other untainted evidence which
            was substantially similar to the erroneously admitted
            evidence; or (3) the properly admitted and
            uncontradicted evidence of guilt was so overwhelming
            and the prejudicial effect of the error was so
            insignificant by comparison that the error could not
            have contributed to the verdict.
     Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556,
     561 (2002) (citation omitted). “The Commonwealth has the
     burden of proving harmless error beyond a reasonable doubt.”
     Poplawski, 130 A.3d at 716 (citation omitted).

Commonwealth v. Radecki, 180 A.3d 441, 461 (Pa. Super. 2018) (footnote

omitted).

     As in Radecki, our review of the record reveals that over the course of

the three-day trial, the brief statement by Mr. Minor about the victim’s

demeanor prior to the New Year’s party, and the statement of a witness about

being a rape victim without a curative instruction, were not prejudicial to

Appellant. The witnesses’ statements, in the context of all of the evidence

presented, were at best harmless error, where the witnesses’ statements

“were merely cumulative of other untainted evidence.” Id. at 461.

     In sum, we conclude that there is no merit to Appellant’s claims, and

therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.

     Judge Strassburger joins the memorandum.

     Judge Pellegrini files a concurring memorandum.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/19




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