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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DENNIS R. STEELE

                            Appellant                      No. 197 MDA 2014


                    Appeal from the Order January 13, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000308-2012


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                              FILED FEBRUARY 24, 2015

        Appellant, Dennis R. Steele, appeals from the order entered January

13, 2014, in the Court of Common Pleas of Lycoming County, which denied

his pre-trial motion to dismiss charges based on double jeopardy. 1 The trial

court previously declared a mistrial, finding manifest necessity, after Steele’s

counsel     intentionally   subverted     the   Rape   Shield   Law   during   cross-

examination of the victim, his granddaughter. We affirm.

        The Commonwealth filed charges against Steele alleging that he

sexually assaulted his biological granddaughter, a nineteen-year-old girl at

____________________________________________



    Former Justice specially assigned to the Superior Court.
1
 This order is immediately appealable as a collateral order. See Pa.R.A.P.
313, Note.
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the time of the alleged assault. Prior to trial, Steele filed a motion seeking

to offer evidence at trial of specific instances of his granddaughter’s sexual

conduct on the day of the alleged assault. Specifically, that she had sexual

relations with two men, her boyfriend and a former boyfriend, on the day of

the incident with her grandfather. Steele alleged that the evidence of her

sexual conduct was relevant to her credibility and bias.             The trial court

conducted an in camera hearing and denied the motion, finding that the

evidence of the victim’s sexual conduct was inadmissible under the Rape

Shield Law, 18 Pa.C.S.A. § 3104(a).

       The matter proceeded to trial. The defense theory was that the victim

consented to having sex with her grandfather.2 During her direct testimony,

the victim recounted the sexual assault—that her grandfather fondled her

breasts, digitally penetrated her vagina, forced her to touch his penis, and

performed oral sex on her. She also testified that while he did these acts,

her grandfather told her that she looked like her grandmother did thirty

years ago.

       On cross-examination, counsel for Steele asked the victim if her

former boyfriend visited her.         She answered he did.      Counsel then asked

what time he came over. The victim stated that he came over at 3:00 a.m.

Counsel then asked, “[d]id he stay?”             N.T., Trial, 10/17/13, at 38.   The
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2
  In the words of the defense during its opening statement, “it was simply
the grandfather asking and receiving.” N.T., Trial, 10/17/13, at 16.



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victim answered, “[h]e did not stay the night. He was there for an hour and

he left.”   Id. Counsel inquired, “[w]hat was he doing for that hour.”     Id.

The Commonwealth immediately lodged an objection.              But the victim

answered, “[w]e were having sex.” Id. The trial court called the lawyers to

sidebar and informed them that they would further discuss the matter in

chambers.

      The trial court asked Steele’s counsel how he could ask that question

in light of the pre-trial ruling regarding the inadmissibility of the victim’s

sexual conduct per the Rape Shield Law. The Commonwealth moved for a

mistrial. Counsel for Steele contended that the matter could be ameliorated

by an instruction to the jury to disregard the victim’s answer and that a

mistrial is barred by double jeopardy. The trial court again asked Steele’s

counsel how he could ask that question when he knew that the boyfriend

was there because the couple had sex. Counsel responded that he “asked

what he was doing.      I didn’t ask what they were doing….”        Id., at 39

(emphasis added).

      The Commonwealth argued that Steele’s counsel knew exactly what he

was doing when he asked the question—that it was an attempted end-run

around the pre-trial ruling.   The trial court agreed.   The trial court stated

that the victim had no other answer for that question other than they were

having sex at that time—after all, that was the sole reason for his visit.

Counsel for Steele again said that the trial court could simply instruct the


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jury to disregard the victim’s answer. The trial court, in no uncertain terms,

informed counsel that it believed that he intentionally sought to elicit the

victim’s answer that she was having sex with her boyfriend. The trial court

declared a mistrial.

      The trial court then explained to the jury its reasoning. The trial court

explained the Rape Shield Law and that it

      fear[ed] [defense counsel’s] question of what did he do when he
      came in at 3:00 in the morning just crossed that line and that
      you’re going to conclude well, when [the Commonwealth]
      objects that it had to be because of the fact that they were
      having sex. I’m not going to confirm or deny that, but the fact
      of the matter is that the seed has been planted and it violates
      the Rape Shield Law and I’m sorry that we have wasted your
      time on this. I don’t know any way around it because I think it
      is a logical conclusion and that you folks were going to jump to it
      and that may in some way start to influence your decision.


Id., at 44-45.    After the jury left, Steele’s counsel asked to put on the

record that he had not heard the victim’s answer to his question and asked

the trial court if they heard her answer.    The trial court indicated that it

heard the answer and thought the jury did as well, “but wasn’t sure that

they heard it that’s why I couched it the way I did.” Id. The record plainly

indicates the victim answered the question after the objection.

      Steele moved to dismiss the charges on double jeopardy grounds,

which the trial court denied. This timely appeal followed.

      Steele advances two arguments on appeal as to why the trial court

erred in denying his motion to dismiss the charges on double jeopardy



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grounds. First, he contends that the trial court abused its discretion in its

evidentiary ruling regarding the evidence of the victim’s sexual conduct.

And, second, if we find the trial court committed no error in precluding that

evidence, that the trial court abused its discretion in declaring a mistrial as

there was no manifest necessity.

      “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.”    Commonwealth v. Burns, 988 A.2d

684, 689 (Pa. Super. 2009) (citations omitted).

      The Rape Shield Law is codified at 18 Pa.C.S.A. § 3104 and provides,

in pertinent part, as follows:

      (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.

18 Pa.C.S.A. § 3104(a). “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.     The Rape Shield Law is intended to

exclude irrelevant and abusive inquiries regarding prior sexual conduct of

sexual assault complainants.” Burns, 988 A.2d at 689 (citations omitted).

See also 4 Summ. Pa. Jur. 2d Criminal Law § 15:22 (2d ed.).


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       Here, Steele wanted to introduce into evidence two instances of the

victim’s sexual conduct. On appeal, he mentions the two instances, but his

argument is focused exclusively on the sexual conduct that resulted in the

mistrial. That is the only episode we will address in this memorandum. That

episode occurred with the victim’s former boyfriend approximately four

hours prior to the assault.        Steele wanted to introduce into evidence that

while she had consensual sex at that time with the former boyfriend3 she

neglected to inform the police that he snuck into her bedroom. He argues

that that evidence is “certainly relevant to the issue of whether the sex

engaged in with her grandfather was consensual.” Specifically, that it goes

to her credibility and bias against her grandfather. Appellant’s Brief, at 8.

       The exception specifically enumerated in the Rape Shield law, see 18

Pa.C.S.A. § 3104(a), is not applicable as there was no allegation by the

victim of past sexual conduct with Steele.               However, there are other

exceptions recognized in case law.             For instance, “[t]he Rape Shield Law

may not be used to exclude relevant evidence showing a witness’ bias or

attacking credibility.       Also, evidence tending to directly exculpate the

accused by showing that the alleged victim is biased and thus has a motive

to lie, fabricate, or seek retribution is admissible at trial.” Commonwealth


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3
 This information is contained in the State Police report. See Motion for In-
Camera Hearing Pursuant to 18 Pa.C.S.A. §3104(b), Exhibit “A.”



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v. Allburn, 721 A.2d 363, 367 (Pa. Super. 1998) (citations and internal

quotation marks omitted).

        We fail to see how the fact that the victim had a sexual encounter

with a former boyfriend hours prior to the alleged assault—by her

grandfather—has any bearing on the victim’s credibility or bias. The record

does not disclose any adverse repercussions from that consensual encounter

that would give her any reason to dissemble about the allegations of the

assault by her grandfather. Permitting evidence of the consensual encounter

is simply irrelevant. It would impermissibly shift the focus of the trial from

the culpability of the accused toward the virtue and chastity of the victim in

direct contravention of the Rape Shield Law. The sole aim of such evidence

is to portray the victim in a negative light.    The trial court committed no

error in excluding that evidence.

      Finding that the trial court did not abuse its discretion in precluding the

evidence, we next consider whether it erred in granting the mistrial based on

a finding of manifest necessity. It did not.

      A trial court has the authority to declare a mistrial upon the showing of

manifest necessity. See Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa.

Super. 2002); Pa.R.Crim.P. 605(B).       We will reverse only when the trial

court abuses its discretion.   See Kelly, 797 A.2d at 936.        The following

principles guide our consideration:

            Where there exists manifest necessity for a trial judge to
      declare a mistrial sua sponte, neither the Fifth Amendment to

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     the United States Constitution, nor Article I, § 10 of the
     Pennsylvania Constitution will bar retrial.

     In Commonwealth v. Diehl, 532 Pa. 214, [216–17], 615 A.2d
     690[, 691 (1992) ], our Supreme Court, when considering
     whether manifest necessity for the trial court’s sua sponte
     declaration of a mistrial existed, stated:


       Since Justice Story’s 1824 opinion in United States v.
       Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, it has
       been well settled that the question whether under the
       Double Jeopardy Clause there can be a new trial after a
       mistrial has been declared without the defendant's request
       or consent depends on [whether] there is a manifest
       necessity for the mistrial, or the ends of public justice would
       otherwise be defeated. It is important to note that in
       determining whether the circumstances surrounding the
       declaration of a mistrial constitute manifest necessity, we
       apply the standards established by both Pennsylvania and
       federal decisions.

       Pennsylvania Rule of Criminal Procedure [605(B)] provides
       that:

       When an event prejudicial to the defendant occurs during
       trial only the defendant may move for a mistrial; the motion
       shall be made when the event is disclosed. Otherwise, the
       trial judge may declare a mistrial only for reasons of
       manifest necessity.

       In accordance with the scope of our review, we must take
       into consideration all the circumstances when passing upon
       the propriety of a declaration of mistrial by the trial court.
       The determination by a trial court to declare a mistrial after
       jeopardy has attached is not one to be lightly undertaken,
       since the defendant has a substantial interest in having his
       fate determined by the jury first impaneled. Additionally,
       failure to consider if there are less drastic alternatives to a
       mistrial creates doubt about the propriety of the exercise of
       the trial judge’s discretion and is grounds for barring retrial
       because it indicates that the court failed to properly
       consider the defendant's significant interest in whether or
       not to take the case from the jury. Finally, it is well


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        established that any doubt relative to the existence of
        manifest necessity should be resolved in favor of the
        defendant.

        We do not apply a mechanical formula in determining
        whether a trial court had a manifest need to declare a
        mistrial. Rather, varying and often unique situations arise
        during the course of a criminal trial ... [and] the broad
        discretion reserved to the trial judge in such circumstances
        has been consistently reiterated....


                                     ***

      ... [T]here can be no rigid rule for finding manifest necessity
      since each case is individual. Moreover, as a general rule, the
      trial court is in the best position to gauge potential bias and
      deference is due the trial court when the grounds for the mistrial
      relate to jury prejudice. From his or her vantage point, the trial
      judge is the best arbiter of prejudice, because he or she has had
      the opportunity to observe the jurors, the witnesses, and the
      attorneys and evaluate the scope of the prejudice.

Commonwealth v. Orie, 88 A.3d 983, 995-997 (Pa. Super. 2014) (some

internal citations and quotation marks omitted).

      In his brief, Steele expresses surprise that the victim answered that

the couple had sex.     He explains that it was “unresponsive to defense

counsel’s question” and that “[w]hy she blurted it out remains a mystery.”

Appellant’s Brief, at 13. This interpretation of events strains credulity. The

trial court found that Steele’s counsel intentionally sought to subvert the

Rape Shield Law ruling by asking the victim what her former boyfriend was

doing at her home at 3:00 am.       See, e.g., N.T., Trial 10/17/13, at 46

(“Come on, [defense counsel], you know that that question – he’s over at

3:00 in the morning and you know that – what [is] she going to say? She’s

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going to say – what is the most predominant thing that he did? Well, he had

sex with me.      You know, he didn’t turn on the TV.   He didn’t turn on the

light.     I mean she’s not going to talk about that.”); Trial Court Opinion,

1/13/14, at 3 (“[T]he question posed by defense counsel was intentionally

designed to elicit testimony which had, by pre-trial order, been prohibited.”).

This is a credibility determination that has eminent support in the record.

         Once the jury heard the answer—that the couple had sex—the damage

was done. Steele maintains, however, that the trial court could simply have

given a cautionary instruction. He claims that the trial court did not consider

the instruction or, if it did, that it was “short lived, if non-existent.”

Appellant’s Brief, at 12. The record belies this assertion. Defense counsel

repeatedly asked that the trial court provide a cautionary instruction. See

N.T., Trial, 10/17/13, at 38-39, 40-41, 43. The trial court plainly indicated

that it considered, and then rejected, giving such an instruction. See id., at

40-41. As it explains in its opinion, “the court believed any verdict would

not be based solely on relevant evidence.” Trial Court Opinion, 1/13/14, at

3.       The trial court did not believe a curative instruction would have

effectively cured “the inflammatory nature of the evidence.”       Id., at 3-4

(footnote omitted).

         The trial court’s reasoning is sound.    We can find no abuse of

discretion with the trial court’s finding that declaring a mistrial was of

manifest necessity.


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     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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