J-S23021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
    KYLE VO                               :
                                          :
                    Appellant             :   No. 2327 EDA 2016

          Appeal from the Judgment of Sentence Dated July 18, 2016
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0001077-2015

BEFORE:       OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                           FILED OCTOBER 16, 2017

        Appellant Kyle Vo appeals from the judgment of sentence imposed

after a jury convicted him of the rape of Marguerite (“Maggie”) Kane while

she was unconscious and of aggravated indecent assault without consent,

sexual assault, indecent assault of an unconscious person, and indecent

assault without consent.1 We affirm.

        Ms. Kane testified at trial that, on the night of January 21, 2015, into

the morning of January 22, 2015, in a dormitory at West Chester University,

she and her roommate, Maria Urban, had been drinking alcoholic beverages

and went to see their friends, Tyler Claycomb and Steven Massaro, in the

men’s dormitory room. N.T., 4/18/16, at 97. Ms. Kane and Ms. Urban did

not stay long in Mr. Claycomb and Mr. Massaro’s room because the women

1 18 Pa.C.S. §§ 3121(a)(3),           3125(a)(1),   3124.1,   3126(a)(4),   and
3126(a)(1), respectively.
J-S23021-17


were “both very drunk and nobody else was.”            Id. at 96.    Ms. Kane

described herself as “very drunk at that point” but still walking and talking.

Id. at 97.    She testified that at the time, she “wasn’t very aware of how

alcohol is measured, and . . . how much was enough to get you drunk. And

[she] wasn’t very familiar with alcohol itself.”   Id. at 89.   She added that

she had never been as drunk before as she was on the night of January 21

into January 22, 2015 — she was the “drunkest [she] had ever been.” Id.

at 89, 104.

      Ms. Kane testified that after she and Ms. Urban returned to their

dormitory room, they, Appellant, and Mark Dukes “who lived across the hall”

from Ms. Kane and Ms. Urban, had a conversation about sexual experiences,

and she told them that she was a virgin. N.T., 4/18/16, at 80, 85, 114-15.

The others asked her “why [she] was a virgin” and her “decision-making in

planning to be a virgin. And [she] told them that [she] wanted [her] first

time to be very special. . . . [She] stuck to the fact that [she] wanted to stay

a virgin.” Id. at 114-15. She continued:

      My family and I are all Catholic, and I really value that. And my
      religion is very important to me. And if I didn’t save it for
      marriage, I wanted it to at least be something of value. And I
      really valued saving it for something that mattered.

Id. at 116. Ms. Kane testified that she “talked about that with them for a bit

of time.” Id. Ms. Kane stated that she was “already pretty intoxicated at

that point in time.” Id. at 125.




                                     -2-
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     Ms. Kane also testified that Mr. Dukes then offered to have sex with

her, but, “despite the fact that [she was] intoxicated, [she was] still not

interested in having sex with Mark.”        N.T., 4/18/16, at 125.       He had

returned to his dormitory room and “sent [her] text messages asking to

have sex.”    Id. at 117.   She testified that she showed the texts to Ms.

Urban, and then:

     [They] talked about it and . . . laughed at him, like, he thought I
     would go and have sex with him after I just said that I didn’t
     want to. . . . I thought it was really funny that after that big spiel
     about not giving it up, that he would then ask me to go have
     sex.

Id. She testified that she turned him down in a text message reply. Id. at

122-23. She asserted that she rejected his offer because she was not ready

to have sex with anyone at that point.

     Ms. Kane then explained that Appellant asked her if she “wanted more

to drink,” and she “said, yes, because [she] didn’t think [she] was as drunk

as [she] was, in retrospect. So he left to go and get alcohol from his room.”

N.T., 4/18/16, at 126. Ms. Kane testified that before Appellant returned, her

friend, Catherine Senior, entered Ms. Kane’s dormitory room but did not

drink any alcohol.   N.T., 4/19/16, at 59.     Ms. Kane stated that Appellant

returned with “shots of vodka from a water bottle that he brought,” then “he

offer[ed] to go get more alcohol.”       N.T., 4/18/16, at 126-27.     Ms. Kane

asserted that, when Appellant returned again:

     He gave me one shot and then said that we were going to go
     shot for shot, meaning that we were going to drink at the same


                                     -3-
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      time. And he gave — he gave me at least more than three
      shots, but I’m not exactly sure how many he gave me.

Id. at 127. She testified that those shots made her “so out of it” and “very,

very drunk.” Id. at 129. Ms. Kane testified that, “[a]fter those shots,” she

“felt the drunkest.” N.T., 4/19/16, at 50; see also id. at 59, 63.

      Ms. Kane testified that eventually Appellant sat on her bed and began

rubbing her thigh. N.T., 4/18/16, at 135-36, 139, 141. She said that her

thoughts were disconnected and she had difficulty processing what was

happening. See id. at 142, 145. She remembers that Appellant moved her

shorts and stuck his finger in her vagina, after which her hand “flopped

backward,” she felt pain, and then “blacked out,” so that she does not

remember clearly. Id. at 145-46. She testified that she felt limp and could

not move. Id. at 147. When she awoke, she found Appellant on top of her,

naked, with his penis in her vagina. Id. at 147-50. She testified that she

went in and out of consciousness but remembers waking again to find

Appellant behind her, where he was naked and “grinding her,” and waking

another time to find him with his penis inside her vagina. Id. 151-53. She

testified:

      And I realized, oh, he is having sex with me. And the pain that I
      felt, I then knew what was going on. And I don’t remember
      anything after that.

Id.

      When asked if she consented to sexual intercourse with Appellant, Ms.

Kane answered negatively.     N.T., 4/18/16, at 142-44, 150.     She testified


                                    -4-
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that Appellant never said anything to her about wanting to have sex with

her, nor even made any flirtatious comments to her; it never occurred to her

that Appellant wanted to have sex with her. She added that she never said

anything to him to suggest that she was interested in having sex with him,

and it never crossed her mind that sex was a possibility with Appellant or

anyone else that night. Id. at 143-44.

      Ms. Kane asserted that as soon as Appellant left her room, she told

Ms. Urban that she was raped — “And Maria was telling me, you know, oh,

my first time wasn’t good either.    And I’m, like, no, I was raped.”    N.T.,

4/18/16, at 157-58.

      Catherine Senior testified that Ms. Kane was “pretty drunk” on the

night of the incident. N.T., 4/19/16, at 122. Ms. Senior also testified that

the next morning Ms. Kane called her and asked her to come to her

dormitory room; when Ms. Senior arrived, Ms. Kane told her that “she

doesn’t want to have sex and that he did it anyway.” Id. at 132.

      Steven Massaro testified that, when Ms. Kane entered his dormitory

room, “she was intoxicated and she had [a] mason jar which had liquid in it

that I presumed was alcohol[.]”     N.T., 4/19/16, at 244.    Tyler Claycomb

corroborated this testimony, stating that Ms. Kane had “a mason jar with a

straw in it, so it had alcohol in it,” from which she continued to drink after

she entered his room.    Id. at 261-62.   He described Ms. Kane as already

drunk when she entered his dormitory room.             Id. at 261-62, 264.



                                    -5-
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Mr. Claycomb further testified that he went to see Ms. Kane in her dormitory

room later that night, by which time she was “very drunk.” Id. at 266.

      Chase Adams, a roommate of Mr. Massaro and Mr. Claycomb, testified

that when he saw Ms. Kane that night —

      She was very drunk. And Cate [Senior] was there trying to, like,
      help her get in her pajamas to go to bed. And she was, like,
      fighting with Cate and, like, giggling and being really loud. So
      she was very intoxicated at that point. . . . She was falling
      around, didn’t really have a sense of anything going on. Like,
      she had fallen off her chair and was, like, laying on the floor
      laughing for a good five minutes. So it was easy to tell that she
      was very intoxicated. . . . [She was s]lurring words[.]

N.T., 4/19/16, at 305-06, 320.    Mr. Adams also testified that prior to the

night in question, Ms. Kane had told him, Mr. Claycomb, and Ms. Senior that

she had no sexual experience, that she was waiting for sex, and that she

was not a believer in casual sex. Id. at 297.

      Mark Dukes testified that he saw alcohol in Ms. Kane’s dormitory

room. N.T., 4/20/16, at 42. He also confirmed that, during the night of the

incident, Ms. Kane told Appellant, Ms. Urban, and him that she was a virgin,

was waiting for the right person, and was not “rushing into it.” Id. at 45-46.

      Christopher Burke, Appellant’s roommate, testified that on the

morning of January 22, 2015, Appellant told Mr. Burke that he had sexual

relations with an unnamed girl the night before and had taken her virginity.

N.T., 4/20/16, at 63-64.

      Maria Urban testified that Ms. Kane was “really drunk.” N.T., 4/20/16,

at 78. She also testified that Ms. Kane told Appellant that she did not want


                                    -6-
J-S23021-17


to have sex. Id. at 83-84, 91. Ms. Urban further testified that she, herself,

eventually passed out from alcohol consumption, but that when she awoke

during the night, she saw Appellant having sex with Ms. Kane.               She

described Ms. Kane as looking “limp” and “dead.” Id. at 92. She added that

she did not hear Appellant nor Ms. Kane speak while he was having sex with

her.   Id.   Ms. Urban stated that she did not see Ms. Kane kiss Appellant,

stroke him, or move at all. Id. at 92-93. Ms. Urban admitted that, due to

her inebriation, she “didn’t put two and two together that [Ms. Kane] wasn’t

moving.      [She] just didn’t add it up.”    Id. at 94.   She described the

experience as “really weird and confusing.” Id. Ms. Urban continued that,

when Ms. Kane awoke, she was “really upset, really confused” and said she

did not know what happened. Id. at 95. Ms. Urban added that, when Ms.

Kane realized what had happened, she immediately said that she had not

wanted to have sex. Id. at 95-96.

       Twelve hours after these events, Ms. Kane, under police supervision,

made a recorded call to Appellant in an attempt to gain admissions from

Appellant relating to his criminal conduct.    During this recorded call, the

following conversation occurred:

       [Ms. Kane:]      But, but like what, what did, what did, did you,
       did you use a condom yesterday?

       [Appellant:]       We, I didn’t even come, so it, I don’t even, it
       was like, it wasn’t even that long.

       [Ms. Kane:]       What happened, I don’t remember?



                                     -7-
J-S23021-17


     [Appellant:]        Wait, can you, like, um, I’m like actually
     making blankets for like kids at a hospital right now, I’m not
     even lying, it’s at Sykes [Student Union] right now.

     [Ms. Kane:]      Dude, I, I need to know what happened, I’m
     not sure[. W]hat if I’m pregnant?

     [Appellant:]     We had . . . You’re not pregnant, I didn’t. . . I
     swear to god, you’re not pregnant.

                                 *    *    *

     [Ms. Kane:]       Did you use a condom?

     [Appellant:]      What?

     [Ms. Kane:]       Did you use a condom?

     [Appellant:]      Yes, the second time.

                                 *    *    *

     [Ms. Kane:]       So you didn’t use a condom the first time?

     [Appellant:]      No.

     [Ms. Kane:]       What if I got a disease or something?

     [Appellant:]     I don’t, I just got tested . . . at Sykes, at that
     thing like two weeks ago . . . not two weeks ago, two months
     ago.

     [Ms. Kane:]     How dare you? You knew that I didn’t want to
     have sex, I literally said that, yesterday, in front of you.

     [Appellant:]       You said you did . . . I was passed out and
     then you like . . . yeah, I was actually passed out and you woke
     up, woke me up . . .

     [Ms. Kane:]       Kyle, I was drunk yesterday . . . you got me
     drunk.

     [Appellant:]      I was . . . I was passed out.



                                     -8-
J-S23021-17


     [Ms. Kane:]       You got me drunk and had sex with me when
     you knew that I didn’t want to have sex . . . while I was sober, I
     said that to you.

                                  *    *    *

     [Appellant:]      Like, literally, like the first time, it was for two
     minutes and I was, like I was so drunk I literally passed out on
     you, and I woke up, you woke me up . . . wait, I actually have to
     leave right now . . . like I can’t have this . . .

                                  *    *    *

     [Ms. Kane:]        Without a condom?

     [Appellant:]       What?    No, the second time I actually had a
     condom.

     [Ms. Kane:]        OK, I don’t remember anything that happened.

     [Appellant:]     You weren’t even blacked out, you told me you
     weren’t even that drunk . . .

     [Ms. Kane:]        But, I did say I was drunk?

     [Appellant:]        Wait, I, like can I actually, like because I’m in
     the middle of something right now, I’m actually making blankets
     for like kids in the hospital. . .

                                  *    *    *

     [Appellant:]        [T]he second like I had a condom the second
     time and I still didn’t come.

                                  *    *    *

     [Appellant:]        Can you wait, for like an hour and a half,
     because this is pretty important, and I didn’t, like you’re not
     pregnant . . . I, there’s (unintelligible)

                                  *    *    *

     [Ms. Kane:]       [W]hat if I’m pregnant, dude? What if you
     actually did, what if you did come and you, and I’m pregnant?


                                      -9-
J-S23021-17


     [Appellant:]        You’re not pregnant, because I didn’t come . . .

     [Ms. Kane:]         ‘Cause you didn’t use a condom . . .

                                   *     *      *

     [Appellant:]       I’ll get a Plan B pill if you’re really, like if you’re
     concerned . . . I don’t want you to freak out . . .

     [Ms. Kane:]         Do I need to go to the hospital?

     [Appellant:]    You don’t need to go to the hospital . . . oh my
     god. Like, you want me to go to Wawa, like after I’m done and
     get you Plan B?

     [Ms. Kane:]      What do you mean, go and get me Plan . . .
     are you saying that I have to go and take a freakin’ birth control
     pill?

     [Appellant:]      If you’re worried about it, I’ll go out and like
     walk to Rite-Aid and get you, like a Plan B pill if you’re worried
     about it.

                                   *     *      *

     [Ms. Kane:]        You did it to me, though . . . while I was drunk
     . . . I wouldn’t have had to be worried about it.

                                   *     *      *

     [Ms. Kane:]         Were you drunk?

     [Appellant:]        Yeah . . . (Unintelligible) . . . like are you sure
     ...

                                   *     *      *

     [Ms. Kane:]       Yeah, I wanna know, like, why? When I had
     already told you that I didn’t wanna have sex, I had multiple
     times said that I’m a virgin . . .

                                   *     *      *

     [Appellant:]        [Y]ou told me, you’re like, I wanna have sex
     ...

                                       - 10 -
J-S23021-17



     [Ms. Kane:]       When I was drunk?

     [Appellant:]     Like, I asked you, like, I asked you, like are
     you sure? And then you told me like the second time you
     weren’t even drunk . . .

     [Ms. Kane:]      While I was . . . but I already . . . while I had
     been drinking, and after I had been drinking you asked me if I
     wanted to have sex and I said yes?

     [Appellant:]       Yeah, because we were making out and, then
     like, it happened.

     [Ms. Kane:]       It happened?

     [Appellant:]         Maggie, do you want me to, like honest to god,
     this is like if you’re worried, like if you’re pregnant, like . . .

     [Ms. Kane:]       What if I am pregnant? What happens if I am
     pregnant?

     [Appellant:]    That’s what I’m saying . . . do you want me to
     go to Wawa and get you Plan B?

     [Ms. Kane:]     Are you saying that if I am pregnant, you, you
     would want me to just go and get a birth control pill?

     [Appellant:]      That’s what happens, that’s, do you know what
     Plan B is?

     [Ms. Kane:]       It’s a contraceptive.

     [Appellant:]      Exactly . . . do you want, like if you’re worried
     about it, that much . . . I didn’t come in you . . .

     [Ms. Kane:]       I’m saying, if I’m already preg . . .

     [Appellant:]      You’re not pregnant . . . you can’t get pregnant
     in . . .

     [Ms. Kane:]       How do you know I’m not pregnant?




                                   - 11 -
J-S23021-17


     [Appellant:]      Oh, my god, you it just . . . you’re not already
     pregnant. . . . Do you want me to get you Plan B? Do you want
     me to?

     [Ms. Kane:]       Why do you keep saying that? That, that’s . . .
     why is that the only option if I was pregnant?

     [Appellant:]      What . . . I don’t know (Unintelligible)

     [Ms. Kane:]      What if the condom didn’t work . . . condoms
     break, you know?

     [Appellant:]      It didn’t break . . . well, it didn’t . . .

     [Ms. Kane:]       How do you know the condom didn’t break?

     [Appellant:]      Alright, do, like, alright . . .

                                  *      *     *

     [Ms. Kane:]       Well, I wanna know what happens if I am
     pregnant.

     [Appellant:]    I will get you Plan B and then you won’t be
     pregnant. You can’t be pregnant after you take Plan B.

     [Ms. Kane:]       So I should go to the hospital?

     [Appellant:]      You don’t get . . . I can get Plan B at CVS . . .
     people get Plan B all the time.

     [Ms. Kane:]       So, you’re gonna buy me Plan B?

     [Appellant:]      Yeah . . . I will spend forty bucks on Plan B for
     you if you’re worried . . . I don’t want you to worry about it.

                                  *      *     *

     [Ms. Kane:]       What did you do with, what did you do with the
     condom?

     [Appellant:]      I threw it out.

                                  *      *     *


                                      - 12 -
J-S23021-17


      [Ms. Kane:]      Yeah . . . ‘cause I wanna know if it worked.
      ‘Cause you took, like you took my virginity, dude, and if I’m
      pregnant from that? You take my virginity . . .

      [Appellant:]     Then I will get you, if you’re worried about
      being pregnant, then I will get you Plan B. I have to go right
      now, though.

Tr. of Jan. 22, 2015 Consensual Call to Appellant by Ms. Kane at 1-10,

attached to Trial Ct. Op., 10/19/16, as Ex. 1 (some formatting altered).2

      Appellant was eventually arrested, charged, and tried before a jury

from April 18 to 20, 2016.      On the second day of Appellant’s trial, the

Commonwealth made an oral motion in limine for “evidentiary guidance” as

to the use of the transcript of the telephone call:

      [Commonwealth]: During the course of the conversation, it’s our
      position [Appellant] made a number of out-of-court self-serving
      statements that are inadmissible unless the Commonwealth
      chooses to bring them into evidence. The Commonwealth can
      bring them in under the Hearsay Rule of a statement by party
      opponent.     But the defense cannot offer an out-of-court
      statement of their own client at trial. So I wanted to — my
      understanding is that . . . before we finish this witness and
      before we start cross, that we’re in agreement that the defense
      cannot cross-examine [Ms. Kane] about that phone call, or those
      out-of-court statements by [Appellant].

N.T., 4/19/16, at 3. In response, Appellant argued that there were “grounds

for appropriate cross-examination” of Ms. Kane, because there were:

      things Miss Kane said during that conversation as showing action
      inconsistent with someone who had just been raped by
      [Appellant] less than 24 hours prior. [W]hat Miss Kane said
      during that conversation she can be subject to cross-
      examination on.


2 We understand that the ellipses within the lines of the transcript signal
pauses, not the removal or editing out of words.

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J-S23021-17



N.T., 4/19/16, at 5.3 The trial court reserved its ruling pending a review of

the transcript. Id. at 8.

      After reviewing the transcript, the court prohibited its use. Appellant

then preserved his argument for the record:

      I think it’s certainly not a question of admissibility, it should be
      admissible in as much as what Miss Kane said during that
      conversation, it’s a question of weight, what weight that the jury
      should give it, if any, which is subject of them as the fact finders
      to make that determination. They can certainly choose to accept
      it and find it to be exculpatory. In that respect I think that the
      evidence must be admitted for purposes of cross-examination to
      show conduct that is inconsistent, quite frankly, with the actions
      of a person who was just raped not more than 12 hours earlier
      when given the opportunity to speak directly with the defendant.
      That’s why I provided the [trial c]ourt with a copy.

      Certainly the copy of the transcript of what was said in the tape
      it’s clear she never once uses the word rape during that
      conversation. On many occasions she inquires about pregnancy.
      On many other occasions she inquires about the use of a
      condom. On several occasions she inquires about birth control
      or Plan B. This is clearly a conversation where she’s showing
      that her concern is with an unwanted pregnancy or perhaps a
      sexually transmitted disease but not rape. I think that that is
      exculpable evidence that should be put before the jury and allow
      them to make the decision on what weight to give it.

N.T., 4/19/16, at 88-89.    Thus, Appellant argued that Ms. Kane’s conduct

and her statements after the rape were inconsistent with her trial testimony,



3 Appellant also posited that his recorded statements could be presented to
the jury with a cautionary instruction.          N.T., 4/19/16, at 5.        The
Commonwealth countered that Appellant could not introduce his side of the
out-of-court conversation and no cautionary instruction would “fix that.” Id.
at 8. “It[’]s his opportunity to try to get his version of events in front of the
jury without actually having to testify.” Id. Appellant responded that the
court could exclude his statements. Id.

                                     - 14 -
J-S23021-17


and he therefore should have been permitted to use the transcript to

impeach her.

      After Appellant’s conviction, he was sentenced on July 18, 2016, to six

to twenty years’ confinement followed by five years’ probation.       Appellant

did not file any post-trial or post-sentence motions.      On July 21, 2016,

Appellant filed a notice of appeal and retained different counsel for the

appeal.

      Appellant now raises one issue for our review:

      Whether the trial court erred by not permitting counsel the
      opportunity to cross-examine the alleged victim Marguerite Kane
      about inconsistent statements she made during a wire intercept
      with the Appellant the afternoon after the incident where such
      exclusion of evidence violated the Appellant’s constitutional due
      process right to present a full and complete defense under the
      Fifth, Sixth and Fourteenth Amendments of the United States
      Constitution and Article I, Section 9 of the Pennsylvania
      Constitution?

Appellant’s Brief at 3.

      “The admissibility of evidence is a matter for the discretion of the trial

court and a ruling thereon will be reversed on appeal only upon a showing

that the trial court committed an abuse of discretion.” Commonwealth v.

Towles, 106 A.3d 591, 603 (Pa. 2014) (citations omitted).

      Appellant argues that the trial court should have permitted him to use

the transcript of the telephone call as a prior inconsistent statement during

his cross-examination of Ms. Kane.       Appellant’s Brief at 11.     Appellant

asserts:



                                    - 15 -
J-S23021-17


     By not permitting cross-examination about prior inconsistent
     statements the [trial c]ourt violated the Appellant’s constitutional
     due process right to present a full and complete defense. The
     admissibility of the contents of these statements by Ms. Kane
     are critical in this appeal. The Appellant maintains that he,
     through counsel, should have been permitted to cross-examine
     Ms. Kane on the inconsistencies in the wire intercept with the
     trial testimony.

         The defense theory was that the sexual contact between Ms.
     Kane and the Appellant was consensual.            Defense counsel
     attempted to demonstrate that Ms. Kane, throughout the night
     in question, was able to articulate, act and carry herself in a
     manner inconsistent with being drunk, thus demonstrating that
     she was aware and consented to the sexual acts with the
     Appellant. In order to do this, defense counsel attempted to test
     the credibility of Ms. Kane’s testimony. . . . At no point during
     her testimony did Ms. Kane ever state that she was sober when
     she was with the Appellant. However during the wire intercept
     she stated: “You got me drunk and had sex with me, when you
     know that I didn’t want to have sex . . . while I was sober, I said
     that to you.” Her statement from the wire intercept indicates
     that she was sober at some point with the Appellant prior to any
     sexual contact. This is an inconsistent statement and one that
     trial counsel should have been permitted to use for cross-
     examination. . . .

        Also, during the wire intercept Ms. Kane was confronted with
     the fact that the Appellant had asked her if she wanted to have
     sex and she had verbally responded by saying “yes.” Again,
     counsel should have been permitted the opportunity to cross-
     examine Ms. Kane with respect to this specific fact. . . .

     Not allowing counsel the opportunity to cross-examine Ms. Kane
     about inconsistent statements, and ultimately test her credibility,
     violated the Appellant’s due process rights.

Id. at 11-12.   Appellant argues that his right to a fair trial was denied

because the court improperly limited his ability to cross-examine Ms. Kane




                                    - 16 -
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under Pa.R.E. 611 and 613. Id. at 16-19.4

      The trial court stated that it “thoroughly reviewed the transcript of the

consensual call to determine if there are any inconsistent statements within

the phone call or statements that are inconsistent with her trial testimony.”

Trial Ct. Op. at 8. The court said that it found no inconsistencies:

      It is determined that there are no inconsistent statements and
      that [Appellant]’s argument is without merit. Throughout this
      conversation, it was clear that the victim was consistent in
      stating that she did not know what happened. She confronted
      [Appellant] with the fact that he knew she was a virgin and she
      did not want to have sex. She was trying to get [Appellant] to
      tell her why he did it and questioned whether he used a condom
      and whether she could be pregnant. There were no inconsistent
      statements within the recorded call nor were her statements
      inconsistent with her trial testimony.

Id. at 12.

      We agree with the trial court that the portions of the phone call that

Appellant identified as inconsistent statements were not, in fact, inconsistent

with Ms. Kane’s trial testimony. We do not agree that a woman’s statement

that she is concerned about pregnancy or contracting a sexually transmitted



4 Rule 611(b) states: “Cross-examination of a witness . . . should be limited
to the subject matter of the direct examination and matters affecting
credibility, however, the court may, in the exercise of discretion, permit
inquiry into additional matters as if on direct examination.” Rule 613(a)
states:

      A witness may be examined concerning a prior inconsistent
      statement made by the witness to impeach the witness’s
      credibility. The statement need not be shown or its contents
      disclosed to the witness at that time, but on request, the
      statement or contents must be shown or disclosed to an adverse
      party’s attorney.

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disease is any way inconsistent with her contention that she was raped. Nor

do we agree that Ms. Kane’s failure to say the word “rape” on the recorded

call is inconsistent with her testimony that she was raped. In fact, when a

friend made comments to Ms. Kane that were inconsistent with Ms. Kane’s

contention that she was raped, Ms. Kane corrected her friend immediately.

N.T., 4/18/16, at 158.

       We also conclude that Appellant is not entitled to relief with respect to

additional portions of the phone conversation that he identifies in his brief to

this   Court.5    Appellant   focuses     on     two   additional   portions   of   the

conversation, and we shall address each separately.

       The first of the additional phone call excerpts identified by Appellant

does not relate to any statement by Ms. Kane, but rather to a statement by

Appellant himself.    Appellant argues:          “Appellant had asked her if she

wanted to have sex and she had verbally responded by saying ‘yes.’ . . .

Counsel could have questioned her about being confronted with this fact by




5 We question whether Appellant properly preserved his issue with respect to
these additional statements, as he did not identify them in his argument to
the trial court. “It is beyond cavil that if the ground upon which an objection
is based is specifically stated, all other reasons for its exclusion are waived.”
Commonwealth v. Hitcho, 123 A.3d 731, 769 (Pa. 2015) (brackets and
citation omitted). “Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). The trial
court never had the opportunity to rule on whether the specific statements
currently challenged on appeal were prior inconsistent statements, since
Appellant did not ask it to consider those statements.                We find it
unnecessary to decide this case on the basis of waiver, however.

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J-S23021-17


Appellant and her response, or lack thereof.”         Appellant’s Brief at 15.

Appellant’s argument refers to the following excerpt from the recorded call:

      [Appellant:]      You told me, you’re like, I wanna have sex[.]

      [Ms. Kane:]       When I was drunk?

      [Appellant:]     Like, I asked you, like, I asked you, like are
      you sure? And then you told me like the second time you
      weren’t even drunk[.]

      [Ms. Kane:]      While I was . . . but I already . . . while I had
      been drinking, and after I had been drinking you asked me if I
      wanted to have sex and I said yes?

Tr. of Jan. 22, 2015 Consensual Call at 9. It is clear from this excerpt that it

was Appellant who said that Ms. Kane consented to sexual intercourse, not

Ms. Kane.     Because this statement was not by Ms. Kane, it cannot be

considered a prior inconsistent statement and Ms. Kane could not have been

cross-examined about it. See Pa.R.E. 613(a) (“A witness may be examined

concerning a prior inconsistent statement made by the witness”).

      Appellant appears to contend that Ms. Kane’s “response, or lack

thereof” to his assertion that she consented should be treated as a

statement by Ms. Kane.      See Appellant’s Brief at 15.    Appellant cites no

authority in support of such a contention, and we know of none.              In

Commonwealth v. Ragan, 645 A.2d 811 (Pa. 1994), the Supreme Court of

Pennsylvania stated:

      [i]f a witness had been under a duty to speak on a prior
      occasion, or if it would have been natural for the witness to have
      spoken on such an occasion, but the witness remained silent, the
      witness may be impeached by showing that the present


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J-S23021-17


     testimony included a fact as to which he had been silent on a
     prior occasion.

     In the case at bar, defense witnesses Tyrone Simmons, Daniel
     Hunter, and Tameka Brown all testified that at the time they
     learned of appellant’s arrest they had been aware that someone
     other than appellant had murdered Darren Brown. It would only
     seem natural that one in possession of such information would
     have immediately contacted the authorities in order to exculpate
     an individual who they supposedly knew was wrongly accused.
     Thus, the prosecution was entitled to impeach their credibility by
     bringing out the fact that they failed to take any such action.

Id. at 826 (emphasis in original; citations omitted). The facts of this case

are not comparable to those in Ragan. Appellant did not ask Ms. Kane a

question that would naturally elicit a statement like that at issue in Ragan.

Rather, he told Ms. Kane that she had stated that she wanted to have sex

with him, causing Ms. Kane to repeat that assertion back to him in the form

of a question that sought clarification of what he claims to have happened

and what he claims was her state of inebriation. Ms. Kane never expressed

agreement with Appellant’s assertion. Cf. Commonwealth v. Parker, 104

A.3d 17, 29 (Pa. Super. 2014) (holding a question is a statement if it

includes an implied assertion), appeal denied, 117 A.3d 296 (Pa. 2015).

     Appellant also challenges Ms. Kane’s statements about her alcohol

consumption and her level of intoxication. He explains:

     At trial, Ms. Kane testified that leading up to and including the
     entire sexual episode she was very drunk, in fact, as drunk as
     she has ever been in her lifetime. At no point during her trial
     testimony did Ms. Kane ever state that she was sober when she
     was with the Appellant. . . . That statement both impeaches her
     credibility as a witness, because it is inconsistent with her trial
     testimony, and the statement lends some support to the defense
     theory at trial that she, in fact, consented to the sexual acts.

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J-S23021-17


      Ms. Kane’s statement during the wire intercept was that “You got
      me drunk and had sex with me, when you know that I didn’t
      want to have sex...while I was sober, I said that to you” is an
      inconsistent statement and the trial court erred by not
      permitting counsel to cross-examine Ms. Kane about that specific
      statement.

      . . . Not only does this specific statement contradict her
      testimony, but it would also lend some support to the defense
      theory that she wasn’t very drunk and consented to the sexual
      acts with the Appellant. Throughout the trial, counsel attempted
      to demonstrate this fact by highlighting Ms. Kane’s ability to
      effectively communicate with friends and other students in her
      dorm, physically move around her dorm and room, change
      clothes, meet Mr. Dukes and converse with him (including
      providing him with her telephone number), share text messages
      from Mr. Dukes with Ms. Urban and the Appellant, reply to the
      text messages from Mr. Dukes about his sexual advances
      towards her, have additional conversation with Ms. Senior and
      the Appellant and finally converse one-on-one with the
      Appellant.

      . . . Ms. Kane testified at length about what she drank and how
      much she drank. For a significant portion of the night she was
      drinking without the Appellant even being around. . . . Again,
      her statement from the wire intercept is inconsistent with her
      trial testimony.

Appellant’s Brief at 14-16.

      The Commonwealth replies that Appellant’s “argument is illogical.

Defense counsel can point to no place in the transcripts of the wire intercept

or the trial in which [Ms. Kane] stated she was sober at the time of the rape

or that she consented to the sexual acts. . . . At best this is a collateral

matter.” Commonwealth’s Brief at 19.

      The first part of Ms. Kane’s telephone statement that Appellant

references — that Appellant “got [her] drunk,” Tr. of Jan. 22, 2015

Consensual Call at 3 — is not inconsistent with her trial testimony. At trial,

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J-S23021-17


Ms. Kane related how Appellant brought vodka to her room and gave her

several shots of it, making her “very, very drunk.” N.T., 4/18/16, at 129.

      The second part of Ms. Kane’s telephone statement that is highlighted

by Appellant — her statement that she told Appellant she did not want to

have sex “while [she] was sober,” Tr. of Jan. 22, 2015 Consensual Call at 3

— requires closer examination. As Appellant points out, Ms. Kane testified

during trial that she was intoxicated throughout the evening of January 21,

2015 and the following morning. N.T., 4/18/16, at 114-15, 125. On careful

review, however, we do not find the stark inconsistency that Appellant

posits.

      First, as the Commonwealth points out, there is no inconsistency in

Ms. Kane’s statements that she was intoxicated at the time Appellant

sexually penetrated her. At trial, she testified that by that time she was so

intoxicated that her body went limp, her thoughts were disconnected, and

she went in and out of consciousness.       N.T., 4/18/16, at 142, 145, 147,

151-53. In the phone call, Ms. Kane told Appellant, “You did it to me . . .

while I was drunk.” Tr. of Jan. 22, 2015 Consensual Call at 6.

      Appellant’s contention is that Ms. Kane’s telephone statement that she

told Appellant “while [she] was sober” about her preference to remain a

virgin raises questions about whether she also was sober (or, at least,

sufficiently sober to consent) at the time he penetrated her. But nothing in

Ms. Kane’s telephone statement contradicts her trial testimony that her

inebriation increased as the night progressed. Although Ms. Kane stated at

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J-S23021-17


trial that she was drunk from the time when she visited Mr. Claycomb and

Mr. Massaro in their dorm room, she also testified that at that time she was

“still walking and talking” and “[k]new what [she was] doing.”            N.T.,

4/18/16, at 97.    When she later returned to her own room and Appellant

asked her if she wanted more to drink, she “said, yes, because [she] didn’t

think [she] was as drunk as [she] was, in retrospect.” Id. at 126. It was

around this time, before imbibing Appellant’s vodka, that Ms. Kane discussed

her desire to preserve her virginity.     See id. at 80, 85, 114-16; N.T.,

4/20/16, at 45-46. The sexual intercourse happened later, after Appellant

gave Ms. Kane “at least more than three shots” of vodka and she passed

out.    N.T., 4/18/16, at 126-27, 129; N.T., 4/19/16, at 50, 59, 63.

Appellant’s telephone statements were consistent with this course of events.

That her telephone call characterized her state at the time she expressed her

virginity preference as “sober” while at trial she said she was intoxicated but

“still walking and talking” and with knowledge of “what [she was] doing”

does not present such an inconsistency as to make the trial court’s exclusion

of the evidence an abuse of discretion, and we see no violation of Appellant’s

due process rights in the trial court’s ruling. We note that Appellant did not

even make this argument about an inconsistency in Ms. Kane’s statements

regarding her degree of inebriation when he sought to use the phone call

transcript in the trial court. See N.T., 4/19/16, at 5, 8, 88-89.

       Moreover, insofar as the evidentiary ruling affected Appellant’s ability

to test Ms. Kane’s credibility in testifying that she was intoxicated when the

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J-S23021-17


sexual penetration took place, we believe any error was harmless. All the

witnesses corroborated Ms. Kane’s testimony that she became increasingly

intoxicated as that evening progressed.              Ms. Senior, Mr. Claycomb,

Mr. Adams, and Ms. Urban testified that Ms. Kane was extremely intoxicated

on the night in question, with her outward signs of intoxication including a

lack of coordination, falling down, and slurring her words. N.T., 4/19/16, at

122, 261-66, 305-06, 320; N.T., 4/20/16, at 78. They said she nevertheless

was lucid when discussing her sexual preferences, telling Appellant that she

did not want to have sexual relations.        N.T., 4/20/16, at 45-46, 84.     But

Ms. Urban testified that she then witnessed Appellant having intercourse

with Ms. Kane while Ms. Kane was immobile and unresponsive. Id. at 83,

91-93.      Ms.   Urban   also   asserted    that    Ms.   Kane,   upon   regaining

consciousness, was upset and confused, said she did not know what had

happened, and, as soon as she realized that Appellant had had sexual

relations with her, told Ms. Urban that she had not wanted to have

intercourse. Id. at 95-96.

     “The    accused is entitled to         a fair   trial, not a perfect trial.”

Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994).                      As the

Supreme Court explained in Commonwealth v. Story, 383 A.2d 155 (Pa.

1978):

     [A]n error may be harmless where the properly admitted
     evidence of guilt is so overwhelming and the prejudicial effect of
     the error is so insignificant by comparison that it is clear beyond
     a reasonable doubt that the error could not have contributed to
     the verdict. . . . Once the court determines that the evidence of

                                     - 24 -
J-S23021-17


      guilt is overwhelming, it then decides if the error was so
      insignificant by comparison that it could not have contributed to
      the verdict.

Id. at 166; see also Commonwealth v. Jacoby, __A.3d__, 2017 WL

4287343, *13-*14 (Pa., Sept. 28, 2017); Rasheed, 640 A.2d at 898.

Based on our review of the record, we conclude that any error that may

have occurred based upon the trial court’s exclusion of the phone

conversation and resulting restriction of Appellant’s ability to cross-examine

Ms. Kane about her degree of intoxication throughout the evening preceding

the crime was harmless.    The properly admitted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so insignificant by

comparison that it is clear beyond a reasonable doubt that the error could

not have contributed to the verdict.    See id.   Appellant is therefore not

entitled to relief.

      Judgment of sentence affirmed.

      Judge Olson joins the memorandum.

      Judge Musmanno files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2017




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