J. S27009/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JEAN M. CLERGER,                        :          No. 451 EDA 2014
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, January 13, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0003679-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 10, 2015

     Jean M. Clerger appeals from the judgment of sentence of January 13,

2014, following his conviction of one count each of sexual assault and

aggravated indecent assault. After careful review, we affirm.

     The trial testimony was aptly summarized by the trial court as follows:

                 In February of 2012, complainant A. E. was a
           freshman nursing major at LaSalle University, living
           with her parents. In that month, she attempted to
           use several Internet dating websites to meet a
           boyfriend, and when other sites did not work for her,
           tried Craig’s List.  She responded to a personal
           advertisement posted by Appellant, telling him that
           she was eighteen (18) years old, a nursing major at
           LaSalle, and lived in Philadelphia.        Appellant
           responded to her message and they began to
           communicate, first by email, and then over text
           message. In the text messages, A. E. stated to
           Appellant that if he made a move, she would not
           stop him, however, she meant kissing or cuddling --
           not sex.


* Former Justice specially assigned to the Superior Court.
J. S27009/15



                After communicating for two (2) to three (3)
          weeks via text message, A. E. felt comfortable with
          Appellant and that she could trust him. In the text
          messages they had talked about school, A. E. told
          Appellant her father didn’t let her do too much, and
          when Appellant asked A. E. for a sexy picture, she
          responded that did not “sext.”[Footnote 17]
          Appellant replied that they were not engaged in
          “sexting;” they were not talking dirty, he just wanted
          a “cute pic.” Thereafter, they made plans to meet in
          person at Appellant’s house, located at 6227 Oakley
          Street in the City and County of Philadelphia on
          March 5, 2012.

                 A. E. took the bus to Appellant’s house on the
          assumption that she would be able to talk to
          Appellant and get to know him better. Upon her
          arrival, however, Appellant took A. E. through the
          back door into the home, and they sat down to
          watch TV for a couple of minutes. Appellant then
          asked A. E. if he could give her a tour of the house,
          and she agreed. Appellant then took her down to
          the basement and pushed her onto the bed, asking
          A. E. if she wanted to have sex. A. E. said “no” and
          ran upstairs, but Appellant chased her and pushed
          her down again, yelling. A. E. asked to leave, but
          Appellant said “no.”

                A. E. told Appellant she needed to use the
          bathroom; once she was in the bathroom she tried to
          jump out of the window, but could not because it
          was too high and she was afraid of breaking her leg.
          A. E. went back downstairs and attempted to escape
          through the back door, only to find it padlocked from
          the inside. She saw Appellant looking through the
          back door before he came in and attempted to pull
          off her pants as A. E. desperately tried to pull them
          back up. A. E. yelled, “No, stop doing that,” but
          Appellant said that if she gave him oral sex, he
          would let her leave.

               [Footnote 17] To “sext” is to send
               (someone) sexually explicit photographs


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                or messages via cell phone. The Oxford
                English Dictionary, Sep. 15, 2014,
                available                             at
                http://www.oxforddictionaries.com/us.

                 A. E. performed oral sex on Appellant, with his
          penis in her mouth, and Appellant performed oral
          sex on her by putting his mouth on her vagina and
          his fingers in her vagina and anus,[Footnote 18] but
          he still would not let her leave. She did not want to
          perform these acts, and they were painful, but felt
          that she had no choice; she was afraid that if she
          said no, Appellant would force her to have sex with
          him. Appellant then said that if she wanted to leave,
          she had to have sex with him.

                 At that time, Appellant and A. E. were laying
          [sic] on the floor on a sheet, with Appellant on top of
          her, holding her legs open with a painful grip. A. E.,
          crying, asked Appellant to stop because he was
          hurting her, and he told her to shut up. Appellant
          wore a condom at first, but later removed it.
          Appellant and A. E. then engaged in sexual
          intercourse for about five minutes before Appellant
          finished and let her up. A. E. asked Appellant for a
          tissue because semen was running down her leg,
          and Appellant laughed at her.          Appellant then
          unlocked the back door with a key and let A. E.
          leave.

                After A. E. left the house, at approximately
          1:27 p.m., Appellant sent text messages asking,
          “You want to be my girl?” and for A. E.’s Facebook
          page.

                 A. E. walked back to the nearest bus stop,
          where two women saw her crying and asked her
          what had happened. The women flagged down a
          passing police officer, Philadelphia Police Officer
          Joseph Mazzuca, at approximately 1:55 p.m.
          Officer Mazzuca was on routine patrol with his
          partner around the corner of Rising Sun Avenue and
          Levick Street when he saw the two women waving
          frantically at them. When asked what happened,


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          A. E. told Officer Mazzuca that she had been raped
          and that she could tell him the location where it had
          happened. Officer Mazzuca ushered A. E. into the
          vehicle and promptly drove to the scene of the
          crime. Although A. E. appeared quiet, stunned, and
          shocked, she was able to lead the police officers to
          Appellant’s home.        Philadelphia Police Officer
          Linda Crusemire also responded to Appellant’s home
          with her partner, Philadelphia Officer Timothy
          Fitzgibbon.      She also observed A. E. in
          Officer Mazzuca’s patrol car and noticed that A. E.
          was very upset and seemed shocked: she was
          staring, nervous, shaken.

               [Footnote 18] Appellant cross-examined
               A. E. extensively on these statements,
               arguing she did not mention Appellant
               putting his fingers into her anus at the
               preliminary hearing. At trial, Assistant
               District Attorney Peter Lim testified that
               he did not press the complainant during
               the preliminary hearing about where
               Appellant had penetrated her because in
               his experience, the most important thing
               at the preliminary hearing is to make
               sure the complainant felt comfortable
               with him. He stated that to force her to
               talk about such things was to victimize
               her again.

                 Officer Fitzgibbon then went to Appellant to
          ask him questions about the incident in the house.
          Appellant said that there was a woman, and that
          they had had sexual intercourse. Officer Fitzgibbon
          then conducted a patdown of Appellant and asked
          him whether there was anything in his pockets.
          Appellant informed Officer Fitzgibbon he had a used
          condom in his pocket.       When Officer Fitzgibbon
          realized he did not have a secure container for the
          condom, he directed Appellant to put the condom
          back into his pocket.      Appellant was wearing a
          jacket, a shirt, jeans, and no underwear. Appellant
          was then placed in the back of the car, and once
          they      arrived     at   Special   Victims   Unit,


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          Officer Fitzgibbon informed the detective assigned of
          the condom so that it could be secured.

                At that time, A. E. identified Appellant as the
          man who had assaulted her, although she did not
          know him by his real name -- she knew him as
          “Mark.” Police officers then took her to the station to
          take her statement and have a rape kit performed.
          Detective Adam O’Donnell of the Special Victims Unit
          was the assigned detective to the case, and
          interviewed A. E. at the station. She was emotional,
          distraught, and a little withdrawn, and seemed very
          shy. However, A. E. was able to provide Detective
          O’Donnell with many details about the incident as
          well as a detailed and accurate description of the
          home. Detective O’Donnell then applied for a search
          warrant for the premises of the Oakley Street house,
          as well as for Appellant’s DNA to compare with the
          rape kit.

                Detective O’Donnell was present when the
          search warrant was executed on Appellant’s home.
          He searched the house, took evidence, and
          photographed the layout. He took pictures of the
          bathroom window, where he saw handprints on the
          screen; however, the prints did not show up in the
          photograph. A used black condom, green boxer
          style underwear, proof of Appellant’s residence, and
          a sheet and samples from the sofa cushions were
          recovered from the Oakley Street house.

                Joseph Kelly,[Footnote 19] the sexual assault
          nurse examiner, collected this forensic evidence
          through a detailed head-to-toe examination of A. E.
          to search for cuts, bruises, tears, lacerations, and
          other injuries. In addition to the head-to-toe exam,
          A. E. had to lay [sic] on her back for a pelvic exam
          to search for tears, cuts, or injuries to the vagina. A.
          E. found this humiliating and painful. Kelly then
          documented any discoveries along with his
          observations. He observed A. E.’s demeanor was
          withdrawn and tearful. A. E. told Kelly that Appellant
          had grabbed her legs and pushed her down, and held
          her by the legs. A. E. indicated to Kelly that her


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          vagina had been penetrated by Appellant’s penis and
          fingers; that her anus was penetrated by Appellant’s
          fingers; that Appellant had performed oral sex on
          her; and that Appellant had ejaculated in her vagina
          and possibly on her leg. She was unsure whether a
          condom had been used.

                [Footnote 19] Kelly is a registered nurse
                certified in sexual assault examinations.
                He has conducted at least three hundred
                (“300”) exams over his eleven years as a
                sexual assault nurse examiner.

                Kelly documented patterned bruise marks of
          handprints on both legs below her knees; he had
          never seen such a unique pattern of bruising before.
          A. E. was very tender in her labia majora and
          minora,[Footnote 20] there were tears below the
          vaginal area, tenderness in the perineum, tears and
          tenderness in the anus, with no active pleading [sic].
          Oral, vulvar, vaginal, cervical, rectal, and perineal
          swabs were taken for potential DNA evidence.

                [Footnote 20] The labia majora and labia
                minora are the other two lips of the
                vagina.

                Counsel stipulated that Adewumi Modupe, an
          employee of the Philadelphia Criminalistics lab,
          would have testified that she analyzed the swabs
          from the rape kit performed by Kelly and that no
          sperm were observed. The results were logged and
          samples held for DNA testing. The DNA analyst,
          Lissette Vega, would have testified that the vaginal
          swab and perineal swab revealed the presence of
          Appellant’s sperm.

                Following the assault, A. E. did not feel that
          she was sexually attracted to men any longer and is
          only interested in dating women. She stated this
          might have had something to do with what happened
          at Appellant’s home.

                                   ***


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                   Claudia Clerger, Appellant’s sister, testified in
            his defense. She testified to Appellant’s reputation
            for being a peaceful, nonviolent person in his
            community. She described the layout of the family
            home.      She testified that her and Appellant’s
            younger brother Jonas Clerger is severely autistic,
            and cannot speak, read, talk, or write. He can
            usually be found in his second-floor bedroom
            listening to music, or sitting in front of the television
            rocking back and forth. The padlock on the front and
            back doors are to prevent Jonas from having access
            to the outdoors or to other bedrooms.

Trial court opinion, 9/29/14 at 3-9 (citations to the record omitted).

      Following a jury trial held August 14-16, 2013, appellant was found

guilty of sexual assault and aggravated indecent assault.         Appellant was

found not guilty of rape by forcible compulsion and involuntary deviate

sexual intercourse.    Additional charges including false imprisonment and

recklessly endangering were nol prossed. On January 13, 2014, the trial

court imposed an aggregate sentence of 6 to 12 years’ incarceration.        No

post-sentence motions were filed; however, on February 10, 2014, appellant

filed a timely notice of appeal. Appellant filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,

and the trial court has filed an opinion.1



1
  The trial court notes that appellant’s Rule 1925(b) statement was one day
late. (Trial court opinion, 9/29/14 at 3 n.16.) However, the trial court
addressed the issues raised in its Rule 1925(a) opinion and it is unnecessary
to remand.      See Commonwealth v. Thompson, 39 A.3d 335, 340
(Pa.Super. 2012) (“When counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues we need not
remand and may address the merits of the issues presented.”), citing


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      Appellant presents the following issues for this court’s review on

appeal:

            1.     Did the trial court err in denying Appellant’s
                   Motion for Mistrial when the government failed
                   to include in discovery any information
                   regarding an alleged handprint on a window
                   screen recovered from Appellant’s bathroom
                   when testimony regarding the handprint was
                   given at trial to corroborate Complainant’s
                   testimony?

            2.     Did the trial court improperly bar the
                   admission      of  text    messages    between
                   Complainant and Appellant when such text
                   messages served to establish Appellant’s
                   defense of consent to sexual intercourse and
                   were offered to challenge Complainant’s
                   credibility, and the basis of the exclusion was
                   the Rape Shield Law, 18 Pa.C.S. § 3104(a)[?]

            3.     Did the trial court err in permitting the
                   improper       opinion       testimony        of
                   Detective O’Donnell     when    such     opinion
                   testimony     was      referenced     in     the
                   Commonwealth’s      closing   statement,    and
                   usurped the fact-finding power of the jury?

Appellant’s brief at 2.

      In his first issue on appeal, appellant argues that the trial court erred

in denying his motion for mistrial after Detective O’Donnell testified

regarding handprints on the screen of the upstairs bathroom window.

According to appellant, this corroborated the victim’s testimony that she




Commonwealth        v.    Burton,   973   A.2d   428,   433   (Pa.Super.   2009)
(en banc).


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considered    jumping   out   the   window.       Appellant      claims   that   the

Commonwealth violated its mandatory discovery obligations by not turning

over this evidence prior to trial. Appellant also argues that he was unfairly

surprised by the detective’s testimony, and the trial court’s curative

instruction was insufficient to cure the error.

             The standard governing our review of a trial court’s
             refusal to grant a request for a mistrial has been
             previously well summarized by this Court:

                  The decision to declare a mistrial is
                  within the sound discretion of the court
                  and will not be reversed absent a
                  “flagrant     abuse      of     discretion.”
                  Commonwealth          v.    Cottam,     420
                  Pa.Super. 311, 616 A.2d 988, 997
                  (1992); Commonwealth v. Gonzales,
                  415 Pa.Super. 564, 570, 609 A.2d 1368,
                  1370-71 (1992).         A mistrial is an
                  “extreme remedy . . . [that] . . . must
                  be granted only when an incident is of
                  such a nature that its unavoidable effect
                  is to deprive defendant of a fair trial.”
                  Commonwealth v. Vazquez, 421
                  Pa.Super. 184, 617 A.2d 786, 787-88
                  (1992) (citing Commonwealth v.
                  Chestnut, 511 Pa. 169, 512 A.2d 603
                  (1986),     and    Commonwealth           v.
                  Brinkley, 505 Pa. 442, 480 A.2d 980
                  (1984)). A trial court may remove taint
                  caused by improper testimony through
                  curative instructions. Commonwealth
                  v. Savage, 529 Pa. 108, 602 A.2d 309,
                  312-13;         Commonwealth              v.
                  Richardson, 496 Pa. 521, 437 A.2d
                  1162 (1981). Courts must consider all
                  surrounding      circumstances       before
                  finding that curative instructions were
                  insufficient and the extreme remedy of a
                  mistrial is required. Richardson, 496


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                  Pa. at 526-527, 437 A.2d at 1165. The
                  circumstances which the court must
                  consider include whether the improper
                  remark was intentionally elicited by the
                  Commonwealth, whether the answer
                  was responsive to the question posed,
                  whether the Commonwealth exploited
                  the reference and whether the curative
                  instruction was appropriate. Id.

             Commonwealth v. Stilley, 455 Pa.Super. 543, 689
             A.2d 242, 250 (1997).

Commonwealth v. Bracey, 831 A.2d 678, 682-683 (Pa.Super. 2003),

appeal denied, 844 A.2d 551 (Pa. 2004).

             When the trial court provides cautionary instructions
             to the jury in the event the defense raises a motion
             for mistrial, “[t]he law presumes that the jury will
             follow    the      instructions  of    the    court.”
             Commonwealth v. Brown, 567 Pa. 272, 289, 786
             A.2d 961, 971 (2001) (citation omitted), cert.
             denied, 537 U.S. 1187, 123 S.Ct. 1351, 154 L.Ed.2d
             1018 (2003).

Commonwealth v. Parker,           957   A.2d   311,   319   (Pa.Super.   2008),

appeal denied, 966 A.2d 571 (Pa. 2009).

             In order to succeed on a Brady[2] claim, a
             defendant must establish that the evidence withheld
             was favorable to him, i.e., that it was exculpatory or
             had impeachment value; the evidence was
             suppressed by the prosecution; and prejudice
             resulted. Commonwealth v. Sattazahn, 597 Pa.
             648, 952 A.2d 640, 658 n. 12 (2008). In order to
             establish prejudice, a defendant is obliged to show
             that “the evidence in question was material to guilt
             or punishment, and that there is a reasonable
             probability that the result of the proceeding would
             have been different but for the alleged suppression

2
    Brady v. Maryland, 373 U.S. 83 (1963).


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             of the evidence.”     Commonwealth v. James
             Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008)
             (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles
             v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131
             L.Ed.2d 490 (1995)).

Commonwealth v. Miller, 987 A.2d 638, 655 (Pa. 2009).                     “The

Commonwealth does not violate [Pa.R.Crim.P.] Rule 573 when it fails to

disclose to the defense evidence that it does not possess and of which it is

unaware.”     Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008)

(citations omitted).   “It is well established in this Commonwealth that the

purpose of the discovery rules is to permit the parties in a criminal matter to

be prepared for trial. Trial by ambush is contrary to the spirit and letter of

those rules and cannot be condoned.”         Commonwealth v. Shelton, 640

A.2d 892, 895 (Pa. 1994), citing Commonwealth v. Moose, 602 A.2d

1265, 1274 (Pa. 1992).

      Instantly,   Detective   O’Donnell      testified   that   Commonwealth

Exhibit C-5G depicted the upstairs bathroom window. (Notes of testimony,

8/15/13 at 80.) According to Detective O’Donnell, there were handprints on

the window screen which did not show up in the photograph.             (Id. at

80-81.)     On cross-examination, Detective O’Donnell explained, “I didn’t

realize the photograph did not show it.      I saw the handprints.   I took the

photographs and I assumed that the photographs would show the

handprints. They do not.” (Id. at 92.) Appellant made a motion for mistrial

which was denied.      (Id. at 114-117.)     However, the trial court issued a



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curative   instruction   to    the    jury,   striking   Exhibit   C-5G   and

Detective O’Donnell’s testimony regarding the handprints:

           Jurors, at this time I’m going to instruct you to
           disregard any of Detective O’Donnell’s testimony
           with respect to handprints on the window or the
           window screen. This is a legal ruling that there is
           nothing for you to consider, because I’m striking it
           from the record. As I instructed you in the opening
           instructions, whenever evidence is stricken from the
           record that means that there’s nothing for you to
           consider. You shouldn’t concern yourselves with this
           ruling.    It’s a legal ruling.         Just follow my
           instructions. Don’t think about the reasons why. I
           don’t want that to be a distraction to you. I have
           instructed counsel not to in any way address that
           issue of handprints on the window or window screen.
           That is no longer an issue. It’s off the table. It [sic]
           stricken as if its [sic] didn’t exist. For that reason, I
           have also stricken the exhibit labeled C-5G. It has
           been removed from the poster board.

Id. at 119-120.

     First, Detective O’Donnell’s testimony that he observed handprints on

the bathroom window is not exculpatory; rather, it tends to corroborate the

victim’s version of events. Therefore, failure to disclose this evidence was

not a Brady violation.        Furthermore, there is no indication that the

Commonwealth was aware, prior to trial, that Detective O’Donnell observed

handprints on the window screen.      The handprints did not show up in the

photograph. The Commonwealth complied with Rule 573(b)(1)(f) by turning

over the photograph prior to trial.    There is nothing to suggest that the

Commonwealth suppressed any evidence or that this was trial by ambush.




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      In addition, the trial court issued a thorough curative instruction

ordering the jury to disregard Detective O’Donnell’s testimony concerning

the handprints on the window screen, and striking Exhibit C-5G. The jury is

presumed to follow the judge’s instructions. Parker, supra. The trial court

did not abuse its discretion in denying appellant’s motion for mistrial.

      Next, appellant argues that the trial court erred in excluding certain

text messages between appellant and the victim based on the Rape Shield

Law. The text messages in question were as follows:

            Appellant: No are you a freak?

            The victim: Sometimes.

            Appellant: Hopefully, it will be only for me.

            The victim: U nasty lol.

Notes of testimony, 8/13/13 at 3-4.3

            Appellant: Speaking of sexting, whens [sic] the last
            time u did something.

            The victim: Like four months ago. . . .

Id. at 4.

      The Rape Shield Law provides, in relevant part, as follows:

            § 3104. Evidence of victim’s sexual conduct

            (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

3
 “LOL” stands for “Laughing Out Loud.”        (Notes of testimony, 8/15/13 at
27.)


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                 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.A. § 3104(a).

           Our standard of review of a trial court’s ruling on the
           admissibility of evidence is limited.

                 A trial court’s ruling on the admissibility
                 of evidence of the sexual history of a
                 sexual abuse complainant will be
                 reversed only where 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. Allburn, 721 A.2d 363, 366
           (Pa.Super.1998), appeal denied, 559 Pa. 662, 739
           A.2d 163 (1999) (citations omitted), quoting
           Commonwealth v. Spiewak, 533 Pa. 1, 7, 617
           A.2d 696, 699 (1992).

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

denied, 8 A.3d 341 (Pa. 2010).

           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.
           Allburn, 721 A.2d at 366-367. The Rape Shield Law
           is intended to exclude irrelevant and abusive
           inquiries regarding prior sexual conduct of sexual
           assault complainants.        See Commonwealth v.


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              Riley, 434 Pa.Super. 414, 643 A.2d 1090, 1093
              (1994).

Id.

              The text of the statute includes one specific
              exception to its general prohibition of past sexual
              conduct evidence, regarding the victim’s sexual
              conduct with the defendant where consent of the
              alleged victim is at issue and the evidence is
              otherwise admissible.      18 Pa.C.S.A. § 3104(a).
              However, via interpretive efforts by the courts of this
              Commonwealth, the Rape Shield Statute has been
              found to bow to the following exceptions:
              (1) evidence that negates directly the act of
              intercourse with which a defendant is charged;
              (2) evidence demonstrating a witness’ bias or
              evidence that attacks credibility; and (3) evidence
              tending to directly exculpate the accused by showing
              that the alleged victim is biased and thus has motive
              to lie, fabricate, or seek retribution via prosecution.
              Allburn, 721 A.2d at 367.

Id. at 690.

      Appellant argues that these messages did not fall within the scope of

the Rape Shield Law because they neither elicited specific instances of the

victim’s past sexual conduct nor did they seek to put the victim’s sexual

history at issue.     (Appellant’s brief at 13-14.)     We disagree.    Clearly,

references to whether or not the victim is a sexual “freak” and previous acts

of sexting with other people is evidence of past sexual conduct and is

inadmissible.

      Appellant argues that the text messages were admissible to challenge

the victim’s credibility, where she testified that she had come to trust

appellant and that their relationship was not sexual in nature. (Appellant’s


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brief at 14.)   According to the victim, she thought appellant was a nice

person and their texts back and forth were not untoward or sexual. (Notes

of testimony, 8/15/13 at 28-31.) However, prior to trial, appellant argued

the messages were admissible as evidence of consent and the victim’s state

of mind. (Notes of testimony, 8/13/13 at 5-6.) Appellant did not argue they

were relevant to attack credibility.

      Appellant also complains that the Commonwealth “opened the door” to

questioning the victim about the excluded text messages when it elicited

testimony from the victim to the effect that she thought appellant was

“being nice” and that she felt she could trust appellant.      On redirect, the

Commonwealth questioned the victim about numerous text message

exchanges between herself and appellant in the weeks leading up to the

incident, including one in which appellant asked for “A sexy picture,” and her

response was, “I don’t do sexting.”       (Notes of testimony, 8/15/13 at 26.)

Appellant argued that this line of questioning opened the door to admission

of the previously excluded text messages, including the one in which

appellant asked the victim whether she was a “freak,” so that the jury would

not be misled into believing all of their messages were non-sexual in nature.

(Id. at 36-37.) The trial court reaffirmed its prior ruling. (Id. at 38.)

      As the Commonwealth states, its questioning on redirect regarding the

text message exchanges was actually in response to appellant’s questioning

on cross-examination, wherein appellant sought to establish the sexual



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nature of some of the text messages.          For example, appellant asked the

victim about text messages on February 20, 2012, in which appellant asked,

“So, if I make a move on you, are you going to stop me[?]”            (Notes of

testimony, 8/14/13 at 91.)      The victim replied, “No,” to which appellant

answered with a smiley face. (Id.) The victim then responded, “LOL.” (Id.

at 92.)

      The victim denied that any of the 206 text messages between herself

and appellant were sexual in nature. (Id. at 93.) Appellant then asked the

victim whether she thought messages requesting a picture of her, asking her

what she was wearing, and asking if she could spend the night would be

considered sexual in nature. (Id. at 93-94.) The victim conceded that such

queries could be considered sexual. (Id. at 94-95.)

      On redirect, the Commonwealth questioned the victim about the text

messages referenced by appellant on cross-examination, including the one in

which appellant asked for “A sexy picture.” (Notes of testimony, 8/15/13 at

25-33.) The point of this questioning was to clarify the victim’s answers and

dispel any possible misimpressions created by defense counsel’s questioning

on cross-examination.     (Commonwealth’s brief at 14.)        For example, in

response to the victim’s reply that “I don’t do sexting,” appellant replied,

“It’s not sexting.   We’re not talking dirty.    I just want a cute pick [sic].”

(Notes of testimony, 8/15/13 at 26.)          When appellant asked the victim

“What you [sic] going to wear Friday?”, the victim’s response was “Clothes.



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IDK.” (Id. at 26-27.)4 When appellant asked about spending the night, the

victim answered that they could spend time together during the day;

appellant’s response was, “Yeah, of course. Thursdays be [sic] the best day

for me.” (Id. at 25.)

        Therefore, the Commonwealth’s questioning on redirect was simply an

attempt     to   put   the   text   messages     in   their   proper   context.   The

Commonwealth was entitled to respond to appellant’s cross-examination in

which he implied that some of the text message exchanges were sexual in

nature, e.g., when he asked the victim what she was wearing or requested a

sexy picture.     By eliciting the complete text messaging conversations, as

opposed to the fragments cherry-picked by appellant, the Commonwealth

was attempting to show that their relationship was not, in fact, sexual in

nature.      We disagree that the Commonwealth’s questioning somehow

“opened the door” to admission of the excluded text messages. In addition,

we note that appellant was permitted to question the victim about the 206

other text messages, as well as Craigslist’s personal ads and online dating

pages, in an attempt to establish that she and appellant had a sexual

relationship and that she went to his house with the intention of having

intercourse.     Appellant’s defense was not hampered by the trial court’s

ruling.    The trial court did not abuse its discretion in excluding the text

messages concerning the victim’s past sexual conduct.


4
    “IDK” is an abbreviation for “I don’t know.” (Id. at 27.)


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J. S27009/15


      Appellant also argues that exclusion of these text messages violated

his constitutional right of confrontation.     (Appellant’s brief at 16-17.)

However, this argument was not presented in the trial court; as such, it is

deemed waived. Pa.R.A.P. 302(a).

      Finally, appellant argues that the trial court permitted improper

opinion testimony by Detective O’Donnell, usurping the role of the jury and

requiring a new trial. (Appellant’s brief at 17-19.) Appellant complains that

Detective O’Donnell was allowed to assert his personal opinion on the

“ultimate issue” at trial, i.e., whether the victim was raped.       (Id.)   The

relevant portion of Detective O’Donnell’s testimony is as follows:

            Q.    Just a few more questions, detective, about
                  your investigation. At any point in time when
                  you’re collecting all this evidence do you ask
                  the victim, [], for her text messages, her
                  phone, or any of the emails that she may have
                  exchanged?

            A.    No.    She mentioned text messages in her
                  interview, but they’re not relevant. It doesn’t
                  matter what they said prior.

            MR. SHUTTLEWORTH: Objection to his opinion.

            THE COURT: Sustained.

            BY MS. MCNABB:

            Q.    Did you get a search warrant for the text
                  messages or the postings online?

            A.    No. I have a lot of cases. I have to manage
                  my time. I look for evidence that’s going to
                  prove one way or the other what happened.
                  And to me, in my judgment, it didn’t affect


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               what happened      inside   the   property,   that
               residence.

          Q.   Why in your opinion –

          MR. SHUTTLEWORTH: I’m going to object.

          THE COURT: Sustained.

          MS. MCNABB: If I can rephrase the question?

          THE COURT: Okay.

          MS. MCNABB: Specifically, I would ask to inquire
          from the detective why he a [sic] applied for certain
          items and not others. Why did they not apply for a
          search warrant with a judgment on what was
          revealed. Why did she not ask?

          THE COURT: That’s acceptable.

          BY MS. MCNABB:

          Q.   Detective, you indicated to the jury you didn’t
               ask her to view the phone or print out the text
               messages.     You didn’t ask for a search
               warrant. Why not?

          A.   When I look for evidence I’m looking to find
               out what happened. What happened inside
               that property. What happened prior to that is
               not something that I need to know.          For
               example, I investigate domestic rapes where a
               husband and wife will have consensual sex for
               years and something happens.              What
               happened prior to that doesn’t matter to me.
               It doesn’t change the fact of the rape. Doesn’t
               matter. There’s [sic] date rape investigations.
               Doesn’t matter that someone showed up for a
               date. It doesn’t give someone the right to
               rape.

          MR. SHUTTLEWORTH: Objection again.



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             THE COURT: Sustained. Jurors, I’ll ask you at this
             time to disregard the last comment that the
             detective made. It shouldn’t be considered as part
             of your deliberations. It’s inappropriate for you to
             consider.     So you should not consider that
             statement. I’ll ask the detective to refrain from any
             personal opinions.

Notes of testimony, 8/15/13 at 87-90.

      Contrary to appellant’s argument on appeal, the trial court did not

permit improper opinion testimony. In fact, the trial court sustained defense

counsel’s objections and issued a prompt curative instruction to the jury that

they should disregard Detective O’Donnell’s testimony.               Appellant never

moved for mistrial or indicated that the curative instruction was insufficient

to   cure   any   potential   prejudice.      As    such,   the   matter   is   waived.

Commonwealth v. Manley, 985 A.2d 256, 267 n.8 (Pa.Super. 2009),

appeal denied, 996 A.2d 491 (Pa. 2010) (“In such a case where the trial

court has sustained the objection, even where a defendant objects to

specific conduct, the failure to request a remedy such as a mistrial or

curative instruction is sufficient to constitute waiver.”) (citations omitted).

      Appellant    also   complains        that    the   Commonwealth      referenced

Detective O’Donnell’s improper opinion testimony during closing argument.

Appellant did not raise this issue in his Rule 1925(b) statement. Appellant

did not assert a claim of prosecutorial misconduct during closing argument.




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Appellant only alleged trial court error and referenced Detective O’Donnell’s

testimony.5 Therefore, the issue is waived. Pa.R.A.P. 1925(b)(4)(vii).

     Judgment of sentence affirmed.




     Stabile, J. joins the Memorandum.

     Fitzgerald, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015




5
  “The court erred when it permitted improper opinion testimony of Detective
Adam O’Donnell, over counsel’s objections, and such testimony usurped the
fact-finding function of the jury. N.T. Trial Transcripts 8/15/13 at 87-90.”
(Appellant’s Rule 1925(b) statement, 9/12/14 at 2 ¶3; appellant’s brief
appendix A.)


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