J-S07005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    KEVIN JONES                                   :
                                                  :
                       Appellant                  :   No. 551 MDA 2018

           Appeal from the Judgment of Sentence February 28, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0005514-2016,
                           CP-67-CR-0006180-2016


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                                         FILED APRIL 17, 2019

       Appellant, Kevin Jones, appeals from the judgment of sentence entered

on February 28, 2018, following his jury trial convictions for two counts each

of burglary and criminal trespass and one count each of theft by unlawful

taking, indecent assault, and criminal attempt of sexual assault.1 We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. This appeal involves two separate incidents that occurred on July 17,

2016. At trial, M.E.2 testified that while sleeping in her bed, she awoke at

4:00 a.m. to find a man holding her hand. N.T., 10/30/2017, at 109. She

told him to leave and he did. Id. M.E. noticed that a bottle of tequila was

____________________________________________


1 18 Pa.C.S.A. §§ 3502(a)(1),                  3503(a)(1)(ii),    3921(a),   3126(a)(1),
901(a)/3124.1, respectively.

2   We use the victims’ initials to protect their identities.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07005-19



missing and that a window was open. Id. at 114-117. Police responded to a

call from M.E. and she gave them a description of the intruder. Id. at 112.

Sometime later, police took M.E. to make an identification of a person they

had taken into custody.       Id. at 113.    M.E. identified Appellant as the

perpetrator. Id. She also identified Appellant at trial. Id.

      P.S. also testified at trial. She testified that she returned home on July

17, 2016 between 1:00 a.m. and 2:00 a.m. after imbibing alcohol at a party.

Id. at 126. P.S. testified that she had consensual sex with a male friend and

that she fell asleep afterwards, but awoke to someone kissing her and feeling

her breasts. Id. at 128-131. She also testified that the man was trying to

penetrate her vagina with his flaccid penis and his hand. Id. at 131-134. P.S.

testified that she assumed it was her male friend but that she smelled

cigarette smoke and realized that she did not know the person in bed with

her. Id. at 131-132. P.S. demanded the man identify himself and leave. The

man replied, “I’m Kevin Jones” and acted as if they knew each other. Id. at

132. P.S. testified that she did not know the man and asked him to leave until

he finally acquiesced. Id. Before leaving, the man asked P.S. for a bottle of

tequila that he left in her room. Id. at 135. She gave it to him and he left.

Id. P.S. called the police. Id. at 136. When she went outside, police already

had Appellant in custody inside a police car, the bottle of tequila was on top

of the car, and P.S. was able to identify Appellant.        Id. at 137. Police

recovered a pair of unidentified boxer shorts from P.S.’s bedroom. Id. at 140.

P.S. went to York Hospital where a trauma nurse performed a sexual assault

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examination. Id. at 140. P.S. gave a statement to police two days after the

incident. Id. at 144. P.S. identified Appellant at trial. Id. at 137.

       On November 2, 2017, a jury convicted Appellant of the aforementioned

charges. On February 28, 2018, the trial court sentenced Appellant to an

aggregate term of 12 to 24 years of incarceration. Appellant filed a timely

post-sentence motion on March 8, 2018. The trial court denied relief on March

13, 2018. This timely appeal resulted.3

       On appeal, Appellant presents the following issues for our review:

       1. The trial court erred when it misapplied the Rape Shield Law
          (Pa.R.E. 412/18 Pa.C.S.[A.] § 3104) by prohibiting Appellant
          from cross-examining the victim on prior sexual conduct on the
          evening of the incident. Appellant offered the testimony to
          demonstrate the victim had a poor memory of the evening and
          to demonstrate she was not credible as to the events of her
          allegation that Appellant assaulted or attempted to assault her
          in a sexual manner. Such impeachment testimony falls outside
          the scope of Section 3104, it was relevant, and it was not so
          overly prejudicial that the trial court should have prohibited the
          line of questioning of the victim.            This limitation on
          cross-examination was an abuse of discretion, and a violation
          of Appellant’s confrontation rights under the Sixth Amendment
          of the U.S. Constitution and Article I, Section 9 of the
          Pennsylvania Constitution.

       2. The Commonwealth presented insufficient evidence to convict
          Appellant of burglary beyond a reasonable doubt because the
          Commonwealth failed to prove Appellant entered the residence
          with the intent to commit a crime, namely, theft by unlawful
          taking.
____________________________________________


3  Appellant filed a notice of appeal on March 23, 2018. On April 26, 2018,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
August 8, 2018.

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Appellant’s Brief at 5.

       In his first issue presented, Appellant claims that the trial court abused

its discretion when it relied upon the Rape Shield Law at 18 Pa.C.S.A. § 3104

to prohibit him from cross-examining P.S. regarding her consensual sexual

activity on the same night, just prior to the incident at issue. Appellant’s Brief

at 15-21. Appellant claims that the line of questions were not directed toward

her virtue and chastity.      Id. at 15. Instead, Appellant argues that questions

about the prior sexual encounter between P.S. and her male friend4 were

necessary because of discrepancies in her testimony as P.S. “had difficulty

remembering whether [Appellant’s] penis penetrated her vagina, which is a

necessary element for [s]exual [a]ssault.”       Id.   Thus, Appellant maintains

“[t]he questioning about [P.S.’s] memory, including the earlier sexual activity

occurring only several hours earlier, directly affected the jury’s assessment of

her credibility.” Id.     Additionally, Appellant claims that the Commonwealth

opened the door to the prior consensual sexual activity by introducing

evidence that in P.S.’s “inebriated and half-asleep state, she did not realize it

was not her earlier sexual partner, [] but instead [Appellant] who returned to

bed with her and attempted sexual intercourse.” Id. at 20-21.

       Our standard of review of a trial court's ruling on the admissibility of

evidence is as follows:

       A trial court's ruling on the admissibility of evidence of the sexual
       history of a sexual abuse complainant will be reversed only where
____________________________________________


4   P.S.’s friend did not testify at trial.

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      there has been a clear abuse of discretion. 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 is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill will, as shown by the evidence or the record, discretion
      is abused.

Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc)

(internal quotations and citation omitted).

      The Rape Shield Law provides:

      (a)   General rule.--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.

      (b)   Evidentiary proceedings.--A defendant who proposes to
            offer evidence of the alleged victim's past sexual conduct
            pursuant to subsection (a) shall file a written motion and
            offer of proof at the time of trial. If, at the time of trial, the
            court determines that the motion and offer of proof are
            sufficient on their faces, the court shall order an in camera
            hearing and shall make findings on the record as to the
            relevance and admissibility of the proposed evidence
            pursuant to the standards set forth in subsection (a).

18 Pa.C.S.A. § 3104.

      Here, upon our review of the record, Appellant did not file a written

motion or make an offer of proof prior to trial and the trial court did not

determine whether an in camera hearing was warranted pursuant to 18

Pa.C.S.A. § 3104(b). Instead, Appellant sought to question P.S. at trial about




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consensual sex with an unrelated third-party. N.T., 10/30/2017, at 145-146.

An en banc panel of this Court, however, has previously determined:

     We have repeatedly stated that a defendant who desires to
     introduce evidence of the victim's prior sexual conduct must file a
     written motion and make a specific offer of proof prior to trial.
     See Commonwealth v. Beltz, 829 A.2d 680, 684 (Pa. Super.
     2003) (failure to make written motion bars review of decision at
     trial to exclude); Commonwealth v. Kunkle, 623 A.2d 336, 339
     (Pa. Super. 1993), appeal denied, 637 A.2d 281 (Pa. 1993)
     (defendant's oral motion during trial, rather than a written motion
     and specific offer of proof, was wholly inadequate and there was
     no abuse of discretion by the trial court when it barred evidence
     pertaining to the prior sexual assault of the victim). We will
     presume that the legislature intended “shall” to be mandatory in
     the statute at hand.        See generally Commonwealth v.
     Menezes, 871 A.2d 204, 209 (Pa. Super. 2005), appeal denied,
     890 A.2d 1057 (Pa. 2005). [T]he rape shield laws, as enacted by
     the various states, “were intended to end the abuses fostered by
     the common law rule by limiting the harassing and embarrassing
     inquiries of defense counsel into irrelevant prior sexual conduct of
     sexual assault complainants.” Commonwealth v. Nieves, 582
     A.2d 341, 346 (Pa. 1990), appeal denied, 600 A.2d 952 (Pa.
     1991). The requirement of a specific proffer of evidence was
     designed to prevent a “fishing expedition” into the areas protected
     by the Rape Shield Law. Commonwealth v. Wall, 606 A.2d 449,
     457 (Pa. Super. 1992), appeal denied, 614 A.2d 1142 (Pa. 1992).

     In determining whether the application of the Rape Shield Law
     violates a defendant's constitutional rights to confront and
     cross-examine witnesses against him, this [C]ourt has [] held:

           In Pennsylvania, we have come to resolve this
           question through a relatively elaborate procedure
           which is designed to ensure that no evidence of the
           victim's sexual history is introduced unless and until it
           can be established that to exclude such evidence
           would lay victim to the very raison d'etre of the trial
           itself: the pursuit of truth. The process begins with the
           defendant submitting a specific proffer to the court of
           exactly what evidence he or she seeks to admit and
           precisely why it is relevant to the defense. This

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            procedure forces the defendant to frame the precise
            issues and interests involved, and prevents him or her
            from embarking upon ‘fishing expedition style
            intrusions on Rape Shield Law protections.’ Where the
            proffer is but vague and conjectural, evidence of the
            victim's past sexual conduct will be excluded and no
            further inquiry need be entertained.

Burns, 988 A.2d at 690–691 (some citations omitted).

      Here, there was no written motion or offer of proof filed prior to trial.

Such failure was fatal to Appellant’s claim and bars our review of the trial

court’s decision to prohibit the line of questioning.     Moreover, assuming

arguendo that Appellant properly raised and preserved the claim, our review

leads to the conclusion that the trial court properly precluded the evidence in

contention. We have recently reiterated:

      [T]he Rape Shield Law must at times yield to a defendant's right
      to cross-examine witnesses and instructs the trial court to conduct
      a balancing test that considers whether the proposed evidence is
      relevant to attack credibility, whether the probative value
      outweighs the prejudicial impact and whether there are
      alternative means to challenge credibility:

            Evidence that tends to impeach a witness' credibility
            is not necessarily inadmissible because of the Rape
            Shield Law. When determining the admissibility of
            evidence that the Rape Shield Law may bar, trial
            courts hold an in camera hearing and conduct a
            balancing test consisting of the following factors: (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 there are
            alternative means of proving bias or motive or to
            challenge credibility.

      Also, this [C]ourt has held that evidence of past sexual conduct
      by the victim with third persons is of little relevance to the issue


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      of consent between the victim and a defendant when the victim
      and defendant did not have a prior sexual relationship.

Commonwealth v. Cramer, 195 A.3d 594, 603 (Pa. Super. 2018) (internal

citations and original emphasis omitted).

      Here, the trial court determined that the prejudice to the victim

outweighed the probative value of the proffered evidence and there were

alternative means to test the victim’s credibility.   It opined that Appellant

tested the victim’s credibility by questioning: (1) the victim about her level

of intoxication and recollection of events; (2) the trauma nurse about the

victim’s ability to remember details of the incident; and, (3) the officer who

memorialized the victim’s statements soon thereafter.         See Trial Court

Opinion, 8/8/2018, at 25.     Moreover, the trial court noted that the jury was

able to “sift” through the victim’s testimony in determining her credibility,

because it acquitted Appellant of a “completed sexual assault” and, therefore,

could “draw a distinction regarding penetration.” Id. We agree with the trial

court’s balancing assessment and discern no abuse of discretion in precluding

cross-examination about P.S.’s prior unrelated sexually activity. Accordingly,

Appellant’s first claim lacks merit.

      Next, Appellant claims that the Commonwealth failed to present

sufficient evidence to support his conviction for burglary, because it did not

prove that Appellant entered M.E.’s residence with the intent to commit a

crime therein. Appellant’s Brief at 22-24. In sum, he contends:

      While [Appellant] stole a bottle of tequila for which a jury
      convicted him, the circumstances do not suggest that he entered
      with such intent. He did not immediately raid the liquor cabinet,

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     nor did he rummage through any other areas of the home looking
     for valuables. At best, the evidence demonstrates that after
     [M.E.] realized he was in the residence and told [him] to leave,
     [Appellant] grabbed the bottle of tequila on the way out the door.
     This demonstrates [Appellant’s] intent to steal the bottle formed
     after, not contemporaneously, with the act of entering [M.E.’s]
     residence without permission.

     The Commonwealth may contend that [Appellant] was in the
     process of committing some form of assault on [M.E.] and that is
     sufficient to demonstrate a contemporaneous intent to commit a
     crime as he entered the residence. However, [M.E’s] testimony
     demonstrates that [Appellant] never took any steps to get into
     bed or remove his (or her) clothes while in [M.E.’s] residence.
     [Appellant] held her hand and talked to her until she woke up and
     told him to leave. When told to leave, he did so immediately.
     Beyond a tenuous assumption based on these facts, no other
     evidence was presented to suggest [Appellant] entered [M.E.’s]
     residence with an intent to commit any crime.

Id. at 23-24.

     Our standard of review is as follows:

     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.



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       This standard is equally applicable to cases where the evidence is
       circumstantial rather than direct so long as the combination of the
       evidence links the accused to the crime beyond a reasonable
       doubt. Although a conviction must be based on more than mere
       suspicion or conjecture, the Commonwealth need not establish
       guilt to a mathematical certainty.

Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018) (internal

citations and quotations omitted).

       “Burglary is defined as the act of entering or occupying a structure with

intent to commit a crime therein.” Commonwealth v. Baker, 2018 WL

6729840, at *4 (Pa. Super. 2018), citing Commonwealth v. Magnum, 654

A.2d 1146, 1147 (Pa. Super. 1995); 18 Pa.C.S.A § 3502(a)(2). A “totality of

the circumstances” approach is implemented where “[t]he Commonwealth

must establish, as part of its evidentiary burden, additional evidence that goes

beyond the mere breaking in of a door or window.” Baker, 2018 WL 6729840,

at *4 (citation omitted). Our Supreme Court has also stated:

       [I]n order to secure a conviction for burglary, the Commonwealth
       is not required to allege or prove what particular crime [a
       defendant] intended to commit after his forcible entry into the
       private residence. A conclusion to the contrary would place the
       police and citizens of this Commonwealth in the dangerous
       position of having to permit a burglar to take a substantial step
       towards the commission of a particular crime, potentially risking
       violence, in order to secure a conviction for burglary.

Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994).5 In addition,

flight can constitute circumstantial evidence of consciousness of guilt. See
____________________________________________


5  Apropos to the instant case, the Alston decision also cited Justice James
T. McDermott’s decision in Commonwealth v. Wagner, 566 A.2d 1194,
1194 (Pa. 1989), wherein Justice McDermott stated:



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Commonwealth v. Housman, 986 A.2d 822, 831 (Pa. 2009) (citation

omitted).

       Here, Appellant intentionally and surreptitiously entered M.E.’s premises

by opening and climbing through a window. Once inside, Appellant sat quietly

next to M.E. and held her hand while she slept.          When the victim woke up

and demanded Appellant leave, he fled.             The fact that Appellant did not

commit any sexual or physical acts against M.E. (ostensibly because she

awoke and demanded Appellant leave) did not prohibit a jury from finding that

Appellant intended to commit a crime against the victim when he entered her

home through a window. The Commonwealth was not required to specify the

intended crime and Appellant did not have to take a substantial step towards

the commission of a specific crime. Moreover, Appellant does not dispute that


____________________________________________




       When a stranger first tries to enter your garage, and then breaks
       the window of your door, on a given evening, neither you nor a
       jury should be considered harsh, if you believe he is not an aimless
       waif bringing compliments of the evening, or a passing sojourner
       of eccentric ways, or a harmless loiterer in the evening shadows.

       Those supporting reversal would have us believe that hiding in
       your bedroom under such conditions is an unnecessary foolishness
       in the presence of simple pleasantries. They would see no evil
       through such jaundiced eyes, hear none in the melodious tinkle of
       your breaking window, and obviously would say no evil of a man
       with an umbrella. The jury could find, and did, more sinister
       reasons afoot. I would leave the appellant[, Wagner,] where they
       found him, doing what they had every right to believe he was
       doing, attempting a burglary.

Alston, 651 A.2d at 1095, citing Wagner, 566 A.2d at 1194.

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he actually stole a bottle of tequila from the residence while inside. Instead,

he contends that he did not form an intent to take the liquor prior to entry.

Based upon a totality of the circumstances, however, the jury was free to

determine otherwise and we will not usurp that decision. Finally, Appellant

fled the residence and the jury was free to infer that Appellant’s consciousness

of guilt further supported an intent to commit a crime. Based upon the totality

of the circumstances and viewing the evidence in the light most favorable to

the Commonwealth as verdict winner, we conclude that there was sufficient

evidence showing Appellant intended to commit a crime before entering M.E.’s

residence. Hence, the trial court did not abuse its discretion or err as a matter

of law in rejecting Appellant’s sufficiency challenge and Appellant’s second

issue fails.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/17/2019




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