J-S56023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 SHAWN JESSUP                          :
                                       :
                   Appellant           :   No. 2746 EDA 2018

       Appeal from the Judgment of Sentence Entered April 13, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008578-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 SHAWN JESSUP                          :
                                       :
                   Appellant           :   No. 2747 EDA 2018

       Appeal from the Judgment of Sentence Entered April 13, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008579-2015


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                     FILED DECEMBER 20, 2019

     Appellant, Shawn Jessup, appeals from the judgment of sentence

entered on April 13, 2018, as made final by the denial of a post-sentence

motion on August 9, 2018, following his jury trial convictions of multiple
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crimes arising from the sexual abuse of two juvenile females, O.V. and Y.V.1

At Docket Number CP-51-CR-0008578-2015, the jury found Appellant guilty

of rape of a child,2 involuntary deviate sexual intercourse (“IDSI”) with a

child,3   and   unlawful     contact    with   a   minor.4   At   Docket   Number

CP-51-CR-008579-2015, the jury found Appellant guilty of corruption of

minors5 and indecent assault of a person less than 13-years-old.6 We affirm.

        The trial court accurately summarized the factual background of this

case as follows:

        Beginning around [September 2013], the two female victim’s
        moved with their four siblings and mother (“Tanya”) into their
        maternal aunt’s (“Aunt Melanie”) house. Aunt Melanie resided in
        [Philadelphia, Pennsylvania] along with [Appellant] and her four
        children. The house had three bedrooms. The ten children slept
        in the back room, Tanya stayed in the middle room, and Aunt
        Melanie shared the front room with [Appellant].

        On one occasion, the [entire household] went to the park[, except
        for O.V. and Appellant, who remained at the residence]. As [O.V.]
        left the back room to walk downstairs, [Appellant] came out of the
        bedroom he shared with Aunt Melanie. He grabbed [O.V. by the
        hand] and brought her into the bedroom. [Appellant] pinned
____________________________________________


1 In its opinion, the trial court referred to the victims as “older victim” and
“younger victim.” See Trial Court Opinion, 2/4/19, at 1-18. On appeal, we
will refer to “older victim” as O.V. and “younger victim” as Y.V.

2   18 Pa.C.S.A. § 3121(c).

3   18 Pa.C.S.A. § 3123(b).

4   18 Pa.C.S.A. § 6318(a)(1).

5   18 Pa.C.S.A. § 6301(a)(1)(i).

6   18 Pa.C.S.A. § 3126(a)(7).

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     [O.V.] down on the bed. [Appellant] pulled her underwear down
     to her knees and penetrated her vagina with his penis. [O.V.] told
     [Appellant] it hurt. [Appellant] then placed his mouth on her
     vagina. After the assault, [O.V.] went to the bathroom and
     noticed that she was bleeding. She left the house and went to the
     park.

     Another incident took place downstairs at Aunt Melanie’s house
     when the rest of the family was upstairs. [O.V.] was cooking
     noodles in the kitchen, while [Appellant] sat in a chair nearby.
     [Appellant] walked over to [O.V.], kissed her on the mouth, and
     touched her vagina over her clothing. He then moved his hand
     underneath her clothing and placed his fingers inside her vagina.

     The next encounter [between Appellant and O.V.] occurred inside
     of a car belonging to [O.V.’s] uncle. The car was crowded and
     [Appellant] sat beside [O.V.]. He rubbed her lower thigh until she
     moved her cousin onto the side of her lap to prevent further
     contact.

     On another occasion, [O.V.] was asleep in the back bedroom that
     she shared with the other children. She awoke to [Appellant]
     rubbing her buttocks over her clothing. [O.V. then] got up and
     went to the bathroom.

     The final incident involved [Y.V.]. In the back bedroom, the ten
     children typically slept in the same place every night. On one
     night, however, [O.V.] went to sleep in [Y.V.’s] place. When
     [Appellant] entered the bedroom that night, he went to the
     location where [O.V. usually] slept – now occupied by [Y.V.] – and
     began rubbing her buttocks over her clothing. [Y.V.] awoke and
     ran to Tanya’s room crying. [Appellant] followed behind her.
     [Y.V.] told Tanya that [Appellant] touched her buttocks. Tanya
     pushed [Appellant] until Aunt Melanie came out of her bedroom
     and separated them. Several months later, Aunt Melanie kicked
     [Tanya] and six children out of the house.

     Near the end of the school year, Tanya was notified that her
     daughter, [O.V.], was not in school. Tanya confronted [O.V.]
     about whether she [] skipped school to spend time with boys. At
     this point, [O.V.] disclosed the abuse. Tanya brought her to
     Temple Hospital to be examined.         Both victims were also
     evaluated at St. Christopher’s Hospital. On June 26, 2015, the
     victims were interviewed by Philadelphia Children’s Alliance.



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Trial Court Opinion, 2/4/19, at 1-3.

      Prior to Appellant’s first trial, defense counsel made an oral motion in

limine. N.T. Trial (Jury) Volume 1, 4/11/17, at 4-14. Appellant sought to

cross-examine both O.V. and Y.V. concerning the fact that, in 2013, O.V.

accused her stepfather, M.S., of molestation. Id. at 5. During that incident,

O.V. claimed that M.S. touched her chest through her clothing and attempted

to remove her pants. Id. at 19. Appellant argued that evidence of the prior

2013 assault, together with O.V.’s prompt complaint to her mother, was

relevant to the current case. Id. at 4-14. In particular, Appellant claimed

that this evidence could “inform[] how [Y.V.] approached the situation,” i.e.,

why she “assumed” Appellant assaulted her. Id. at 5.    Additionally, Appellant

argued that such evidence demonstrated O.V.’s resilient personality and also,

could impeach her credibility. Id. at 6-7. On April 12, 2017, the trial court

denied Appellant’s motion in limine to admit evidence of the prior assault,

finding that “its probative value [was] outweighed by the danger of unfair

prejudice, confusion of the issues, and misleading the jury.” N.T. Trial (Jury)

Volume 1, 4/12/17, at 5.

      Appellant’s trial commenced on April 12, 2017 but, following a jury

deadlock, the trial court declared a mistrial. On January 23, 2018, Appellant’s

re-trial began and on January 25, 2018, the jury found Appellant guilty of the

aforementioned crimes. Trial Court Opinion, 2/4/19, at 1. On April 23, 2018,




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Appellant filed various post-sentence motions, which the trial court denied on

August 9, 2018. Id. at 4. This timely appeal followed.7

       Appellant raises the following issue on appeal:8

       Did the [trial] court err in denying Appellant’s pre-trial motion in
       limine in which he sought permission to cross[-]examine [the]
       complaining witness as to why she promptly disclosed a prior
       sexual assault suffered at the hands of her stepfather in Georgia,
       but waited to disclose the instant allegations again[st] Appellant
       until at least one year later[?]9

Appellant’s Brief at 2.


____________________________________________


7Appellant filed two notices of appeal on September 6, 2018, separately listing
each docket number. See Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018). On September 17, 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 timely complied. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on February 4, 2019.

8 Appellant made his oral motion in limine before his first trial on April 11,
2017. See N.T. Trial (Jury) Volume 1, 4/11/17, at 4-14. That motion raised
the issue Appellant now seeks to challenge on appeal. Although Appellant
initially raised his evidentiary issue prior to his first trial, he renewed the
motion on January 23, 2018. Specifically, Appellant presented “four motions
in limine” and then indicated that he “assume[d]” that the trial court would
continue its “pre[-]trial ruling from the last trial.” See N.T. Trial (Jury) Volume
I, 1/23/18, at 4. The court answered in the affirmative. Id. Herein, the
Commonwealth does not dispute that the issue was preserved for appeal.
Therefore, we will consider the merits of the present appeal.

9 Appellant’s question presented focuses on the trial court’s denial of his
motion in limine with regard to O.V. Appellant, however, argued in his oral
motion and his appellate brief that the trial court erred because it barred
cross-examination of Y.V., as well. See N.T. Trial (Jury) Volume 1, 4/11/17,
at 5; Appellant’s Brief at 9 and 12. Thus, we will address Appellant’s allegation
of error for both witnesses.



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       We have explained:

       Our standard of review over evidentiary rulings requires us to
       determine whether the trial court abused its discretion. An abuse
       of discretion may not be found merely because an appellate court
       might have reached a different conclusion, but requires a result of
       manifest unreasonableness, or partiality, prejudice, bias, or
       ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super. 2007) (internal

citations omitted).

       Appellant argues that the trial court erred in denying his pre-trial motion

in limine to permit the cross-examination of both O.V. and Y.V. about O.V.’s

prior assault and her subsequent prompt complaint to her mother. Appellant’s

Brief at 9. Appellant contends that such evidence was relevant to the present

case. Id. We disagree.

       To be admissible, “proffered evidence [must] be relevant and material

under the rules of evidence.” Commonwealth v. L.N., 787 A.2d 1064, 1069

(Pa. Super. 2001).10       Pennsylvania Rule of Evidence 401 defines relevant

evidence as that which “has any tendency to make a fact more or less probable

than it would be without the evidence [and] the fact is of consequence in

determining the action.”         Pa.R.E. 401.    Nonetheless, even if evidence is

relevant, it may still be excluded if its “probative value is outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury.”

____________________________________________


10Both parties agree that the Rape Shield Law does not apply to the present
case. See Appellant’s Brief at 11; Commonwealth’s Brief at 9; see also
Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994).

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Pa.R.E. 403; see also Commonwealth v. Wall, 606 A.2d 449, 457 (Pa.

Super. 1992) (emphasis omitted) (explaining that the trial judge has “wide

latitude” to “limit reasonably a criminal defendant’s right to cross-examine a

witness ‘based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant”).

      Herein, Appellant first contends that the trial court erred in preventing

him from cross-examining Y.V. about O.V.’s prior assault. Appellant’s Brief at

9. He argues that such evidence was relevant “to show [why Y.V.] mistakenly

interpreted innocuous acts as mischievous.”           Id. at 12.     The trial court

concluded that evidence of O.V.’s previous sexual abuse “is not relevant to

whether [Y.V.] was sexually abused by [Appellant] several months later”

because it “does not tend to prove or disprove whether the sexual assault

occurred.”    Trial Court Opinion, 2/4/19, at 5.          We perceive no abuse of

discretion by the trial court in prohibiting the introduction of such evidence

during Appellant’s cross-examination of Y.V.

      Next,   Appellant   argues   that     the   trial   court   erred   in   barring

cross-examination of O.V. about her delay in reporting the sexual abuse in

this case, as compared to the prompt report she made regarding an incident

involving her stepfather. Appellant’s Brief at 9. Appellant argues that such

evidence is relevant to show O.V.’s “personality as someone who has the

tenacity to confront her abuser directly, and not simply wilt under the abuser’s

authority.” Id. We disagree. Evidence of O.V.’s personality does not “tend

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to prove or disprove whether Appellant abused her.” L.N., 787 A.2d at 1069.

In addition, Appellant argues that evidence that O.V. made a prompt

complaint previously, but failed to do so in the current case, is relevant for

impeachment purposes. Id. at 8. Appellant claims that this evidence “goes

directly to [her] credibility.” Id. Appellant, however, disregards the fact that

“the credibility of a witness may be impeached by any evidence relevant to

that issue.” Pa.R.E. 607(b) (emphasis added). Upon review, we conclude

that O.V.’s previous complaint of a third party’s significantly less severe sexual

abuse is immaterial to whether or not Appellant, himself, sexually abused her.

      Furthermore, we conclude that, even if relevant, evidence of O.V.’s prior

prompt complaint is subject to exclusion under Pa.R.E. 403.          In his brief,

Appellant states that, if evidence of O.V.’s prompt complaint were introduced,

the jury “would likely wonder why [O.V.] made a prompt complaint against

her stepfather” but “waited to make her allegation against Appellant until she

was backed into a corner by her mother.” Appellant’s Brief at 9. Notably, this

precise inquiry demonstrates why the evidence is inadmissible under Rule 403.

Indeed, if the trial court admitted the evidence of the prior prompt complaint,

it could cause the jury to find that the present assault did not occur simply

because O.V. failed to disclose Appellant’s abuse as instantaneously as she

did her stepfather’s. See Commonwealth v. Serge, 837 A.2d 1255, 1261

(Pa. Super. 2003) (explaining that evidence is unfairly prejudicial if it causes

the jury to “make a decision based upon something other than the legal

propositions relevant to the case”). Thus, we conclude that the trial court did

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not abuse its discretion by prohibiting Appellant from cross-examining O.V.

about her prior prompt complaint.11

       For the foregoing reasons, we conclude that the trial court did not

commit an abuse of discretion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/19




____________________________________________


11 We note that on appeal, Appellant contends that the trial court “prohibited
[defense] counsel from challenging [O.V.’s] credibility.” Appellant’s Brief at
14. This is belied by the record. A review of trial testimony proves that
Appellant questioned O.V., O.V.’s mother, Tanya, and Michelle Kline, an
employee of Philadelphia Children’s Alliance, about the circumstances
surrounding O.V.’s disclosure of the sexual abuse. See N.T. Trial (Jury)
Volume 1, 1/24/18, at 81-86 and 179-182; 1/25/18, 27-28 and 74-77. The
trial court permitted Appellant to argue that O.V. fabricated the allegations
against Appellant, and in turn, challenge her credibility, by showing that O.V.
did not disclose the abuse until her mother confronted her about being truant
from school and possibly engaging in sexual activity. See id. Thus, upon
review, we conclude that the trial court permitted Appellant sufficient latitude
in developing an ulterior motive to report Appellant’s sexual assault and
reasonably limited Appellant’s cross examination of O.V. by preventing
Appellant from introducing the lone fact that, on a previous occasion, she was
sexually abused by her stepfather “given its marginal relevance on the issue
of prompt complaint.” Wall, 606 A.2d at 457.

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