J-A25039-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
WANYA ROSSER,                            :
                                         :
                 Appellant               : No. 3258 EDA 2013

           Appeal from the Judgment of Sentence June 4, 2013,
              Court of Common Pleas, Montgomery County,
            Criminal Division at No. CP-46-CR-0008571-2010

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED MARCH 16, 2015

     Appellant, Wanya Rosser (“Rosser”), appeals from the judgment of

sentence following his convictions of rape, 18 Pa.C.S.A. § 3121(a)(1), sexual

assault, 18 Pa.C.S.A. § 3124.1, indecent assault, 18 Pa.C.S.A. § 3126(a)(1),

indecent assault by forcible compulsion, 18 Pa.C.S.A. § 3126(a)(2),

recklessly endangering another person, 18 Pa.C.S.A. § 2705, and terroristic

threats, 18 Pa.C.S.A. § 2706(a)(1). For the reasons that follow, we vacate

the judgment of sentence and remand for a new trial.

     On April 27, 2012, the trial court declared a mistrial after the jury was

unable to reach a verdict. On January 17, 2013, a second jury found Rosser

guilty of the above-referenced crimes.    On June 4, 2013,1 the trial court




1
   Rosser purports to appeal from the trial court’s order denying his post-
sentence motions. A direct appeal in a criminal proceeding is instead from


*Retired Senior Judge assigned to the Superior Court.
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sentenced Rosser to an aggregate term of imprisonment of not less than six

and one half nor more than thirteen years of imprisonment, followed by

seven years of probation.2

      This direct appeal followed, in which Rosser presents two issues for our

review and determination:

      1.       Did the trial court abuse its discretion in denying the
               Appellant’s post sentence motion for a new trial
               insofar as his convictions for rape, sexual assault,
               indecent assault, indecent assault by forcible
               compulsion, simple assault, recklessly endangering
               another person and terroristic threats are manifestly
               against the weight of the evidence presented at trial?

      2.       Did the trial court violate the Appellant’s right to
               confront the witnesses against him as guaranteed by
               the Sixth Amendment to the United States
               Constitution and Article I, Section 9 of the
               Pennsylvania     Constitution    by  granting    the
               Commonwealth’s objection to defense counsel’s
               attempt to cross-examine the alleged victim
               regarding her conversation with Appellant during the
               walk to her house as such testimony was aimed at
               establishing the complainant’s motive to fabricate
               the allegations against Appellant?

Rosser’s Brief at 5.

      We will address Rosser’s second issue, as we consider it to be

dispositive.    As set forth at length in its written opinion pursuant to Rule


the judgment of sentence. Commonwealth v. Preacher, 827 A.2d 1235,
1236 n.1 (Pa. Super. 2003). We have amended the caption accordingly.
2
   The trial court initially sentenced Rosser to nine years of probation, but
later granted his post-sentence motion to vacate his conviction for simple
assault, which resulted in a reduction of his probationary period to seven
years. The trial court denied all other post-sentence motions.


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1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial court’s

review of the evidence reflects that the Commonwealth’s principal witness,

Shannon Ryan (“Ryan”), testified that Rosser attacked and forcibly raped

her, and that she did not struggle during the rape and acquiesced in certain

of his requests thereafter (including to give him her real name and phone

number and to allow him to walk her to her door) to gain his trust so that he

would not hurt or even kill her. Conversely, Rosser’s principal defense was

that the sexual intercourse with Ryan was consensual and that she was a

willing participant during the entire episode (including the walk to her door

and the exchange of the phone number).

     At the end of Ryan’s cross-examination at the first trial, the following

exchange occurred:

     Q.    Ms. Ryan, it is true that when you got up to your
           house and you were waiting there and you gave him
           your phone number and he was entering it into your
           phone, you asked him when am I going to see you
           again; isn’t that true?

     A.    He entered nothing into my phone.          I was not
           waiting there for him. I was waiting for him to finish
           taking the number so I can finish whatever it was
           that I was able to take from this rape and turn it into
           what seemed to be a meet-cute in a movie and got
           inside my house.

     Q.    And he told you, I can’t see you again, we could be
           friends, but I have a girlfriend, didn’t he?

     A.    Absolutely not.

     [Commonwealth]:         Objection, Your Honor.



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      [Trial Court]:           All right.      Sustained.     That
                               objection is sustained. Strike that
                               question from your deliberations.
                               Okay?

      [Counsel for Rosser]:    Your Honor, may we see you at
           sidebar?

      (A conference was held in the robing room, not reported.)

N.T., 4/24/2012, at 289-90.

      Before the second trial, Rosser filed a motion in limine seeking to

pursue at the second trial this same line of cross-examination regarding his

alleged girlfriend.3 The Commonwealth filed a conflicting motion in limine to

prohibit   any   such   cross-examination.    The   trial   court    granted    the

Commonwealth’s motion in limine, concluding that the questioning elicited

hearsay testimony (Rosser’s alleged statements to Ryan).            The trial court

precluded Rosser’s counsel from pursuing this line of cross-examination

unless he could represent that he was going to introduce other evidence to

support Rosser’s statement about his girlfriend and their child.               N.T.,

1/14/2013, at 25. In its Rule 1925(a) opinion, the trial court contends that

its ruling regarding the hearsay nature of the proposed line of cross-

examination was correct.      Trial Court Opinion, 1/24/2014, at 15-17.         The




3
   Rosser’s proposed cross-examination also included that he informed her
that he could not see her again because he and his girlfriend had a child
together.


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trial court also argues that even if incorrect, its ruling constituted harmless

error.

         In evaluating the denial or grant of a motion in limine, our standard of

review is to apply the abuse of discretion standard used for other evidentiary

rulings.     Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super.

2014). “A trial court has broad discretion to determine whether evidence is

admissible,” and a trial court's ruling regarding the admission of evidence

“will not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.”       Commonwealth v. Huggins, 68 A.3d

962, 966 (Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013).

         The Confrontation Clause in the Sixth Amendment to the United States

Constitution provides that all criminal defendants enjoy “the right to confront

and cross-examination adverse witnesses.” Commonwealth v. Laird, 988

A.2d 618, 630 (Pa.), cert. denied, 131 S.Ct. 659 (2010).          As the United

States Supreme Court has explained, “the exposure of a witness’ motivation

in testifying is a proper and important function of the constitutionally

protected right of cross-examination.” Delaware v. Van Arsdall, 475 U.S.

673, 678 (1986).

         The trial court’s ruling that the proposed line of cross-examination was

hearsay was clear error. The questions at issue were not aimed at eliciting

hearsay testimony from Ryan because they were not directed at proving the



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truth of the matter asserted, i.e., as substantive evidence that Rosser had a

girlfriend and baby. Instead, the proposed line of questioning was directed

at exposing Ryan’s alleged motive for fabricating the rape charges.         Rule

801(c) of the Pennsylvania Rules of Evidence defines hearsay as “a

statement that . . . the declarant does not make while testifying at the

current trial or hearing; and . . . a party offers in evidence to prove the truth

of the matter asserted in the statement.”).      Pa.R.E. 801(c).    In a recent

case, this Court reiterated that “an out-of-court statement is not hearsay

when it is introduced for the purpose of establishing the fact that the

statement itself was made, rather than for the truth of that statement.”.

Commonwealth v. Belknap, 105 A.3d 7, 10 (Pa. Super. 2014).                   The

questions at issue were intended merely to show that Rosser said these

things to Ryan (about a girlfriend and a child) – which allegedly dashed her

hopes for a romantic relationship and thus motivated her to fabricate false

rape accusations in retaliation.

      In its Rule 1925(a) opinion, the trial court argues that even if its

evidentiary ruling prohibiting Rosser from pursuing the proposed line of

questioning was in error, it was harmless because the Commonwealth

presented a “strong overall case.” Trial Court Opinion, 1/24/2014, at 17. In

particular, the trial court contends that there was “an absence of evidence

contradicting Ryan’s testimony” and “an abundance of circumstantial

evidence corroborating Ryan’s testimony. Id. at 18. Accordingly, the trial



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court concludes that Rosser’s questions about Ryan’s motives “would not

have been able to convince a reasonable finder of fact of his theory.” Id.

      We cannot agree that the trial court’s exclusion of Rosser’s proposed

line of cross-examination was harmless error.         Where a violation of an

appellant’s rights under the Confrontation Clause are at issue, 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. See, e.g., Commonwealth

v.   Atkinson,   987   A.2d   743,    751-52   (Pa.   Super.   2009)   (quoting

Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556, 561 (2002),

cert. denied, 540 U.S. 858 (2003)).

      With regard to the prejudice analysis,

            [w]hile some constitutional claims by their nature
            require a showing of prejudice with respect to the
            trial as a whole, the focus of the Confrontation
            Clause is on individual witnesses. Accordingly, the
            focus of the prejudice inquiry in determining whether
            the confrontation right has been violated must be on
            the particular witness, not on the outcome of the
            entire trial. It would be a contradiction in terms to
            conclude that a defendant denied any opportunity to
            cross-examine      the    witnesses    against   him
            nonetheless had been afforded his right to



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            confront[ation] because use of that right would not
            have affected the jury's verdict. We think that a
            criminal defendant states a violation of the
            Confrontation Clause by showing that he was
            prohibited from engaging in otherwise appropriate
            cross-examination designed to show a prototypical
            form of bias on the part of the witness, and thereby
            to expose to the jury the facts from which jurors ...
            could appropriately draw inferences relating to the
            reliability of the witness.

Van Arsdall, 475 U.S. at 680 (citations and internal quotation marks

omitted).

      The Commonwealth’s case against Rosser depended almost entirely on

Ryan’s credibility with the jury. As a result, Rosser was prejudiced by the

trial court’s refusal to permit his counsel to “engag[e] in otherwise

appropriate cross-examination” designed to show Ryan’s alleged motivation

to misrepresent what occurred on the night at issue.           The questions

regarding Rosser’s alleged statements about his inability to have a romantic

relationship with Ryan because of his girlfriend and baby were crucial to

Rosser’s attempts to call Ryan’s credibility with the jury into question. While

it is true, as the trial court states, that various circumstantial evidence

(including surveillance videos and the SANE report) supports Ryan’s version

of events, this evidence is also consistent with Rosser’s consent defense. In

short, the Commonwealth’s most important evidence (by far) is Ryan’s

testimony, and Rosser has a constitutionally protected right to cross-

examine her to attempt to convince the jury that her version of events is not




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credible. Rosser’s proposed line of cross-examination questions constitutes

a prototypical Van Arsdall attempt “to expose to the jury the facts from

which jurors ... could appropriately draw inferences relating to the reliability

of the witness.”    The trial court’s error prejudiced Rosser in his cross-

examination of Ryan.

      The learned Dissent misses the mark with its contention that Rosser’s

“full and fair opportunity to cross-examine” Ryan was properly limited to the

issues raised by the Commonwealth during direct examination. By rule, the

scope of permissible cross-examination is not limited to the subject matter

of direct examination.   Rule 611(b) of the Pennsylvania Rules of Evidence

provides that the scope of cross-examination “should be limited to the

subject matter of the direct examination and matters affecting credibility

….” Pa.R.E. 611(b) (emphasis added). Rosser’s proposed line of questions

regarding Ryan’s alleged motivation to fabricate evidence constitutes

“matters affecting credibility,” and was therefore was not outside the scope

of permissible cross-examination. The trial court thus had no discretion to

circumscribe cross-examination in the manner recommended by the Dissent.

      Moreover, the Dissent apparently misconstrues the nature of our ruling

here, as this Court takes no “great leap” and does not conclude that Rosser’s

proposed   cross-examination    “would   show”    that   Ryan’s   hopes   for   a

relationship were in fact dashed. Instead, we hold only that Rosser has the

constitutional right to attempt to establish his defense through cross-



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examination of motive.     It is not this Court’s proper function to predict

whether Rosser will or will not be successful in convincing the jury of the

merits of his defense, and we plainly have not done so.

      For these reasons, the judgment of sentence must be vacated and the

case remanded to the trial court for a new trial. Jurisdiction relinquished.

      Wecht, J. joins the Memorandum.

      Platt, J. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2015




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