J-E03006-15



                                  2016 PA Super 51

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
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0008571-2010

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.

OPINION BY JENKINS, J.:                              FILED FEBRUARY 26, 2016

      Wanya Rosser was charged with raping a 19-year-old woman, S.R., as

she walked home in the early morning hours of October 16, 2010. The trial

court prohibited defense counsel from cross-examining S.R. as to whether

Rosser told her, following the assault: “I can’t see you again, we could be

friends, but I have a girlfriend.”

      The principal issue in this direct appeal is whether the trial court

abused    its   discretion     and   violated   Rosser’s   constitutional   right   of

confrontation by precluding this cross-examination. Rosser has waived this

issue, and even if he preserved it for appeal, it is devoid of merit because

there is no factual basis in the record that he actually made this statement.

For these reasons, and for others articulated below, we affirm Rosser’s

judgment of sentence.
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                                     I.

     Evidence adduced during trial. The trial court’s opinion thoroughly

describes the evidence adduced against Rosser:

     The instant case arises out of events that occurred in the early
     morning hours of October 16, 2010, in Cheltenham, Montgomery
     County, Pennsylvania. That morning, half a block away from her
     house, [S.R.] was attacked, threatened, and forcibly raped by
     [Rosser]. She had never met or talked to [Rosser] before he
     raped her. She did not fight back because, according to her
     testimony, [Rosser]’s abrupt and forceful attack and threatening
     statements made her fearful for her life. Because of that fear,
     she testified that she believed that the only way to survive was
     to pretend to befriend her attacker rather than attempt to run
     away and face even more violent consequences. She reported
     the rape to her family and the police within seconds of being free
     from [Rosser], and went to the hospital for a sexual assault
     examination.     Police were able to identify and apprehend
     [Rosser] near [S.R.]’s house shortly after she reported the
     incident. [Rosser] was subsequently tried and convicted for
     Rape, Sexual Assault, and related offenses.

     At trial, [S.R.] testified that [Rosser], a complete stranger to
     her, attacked her from behind, threatened and forcibly raped her
     just half a block away from her house as she walked home from
     work on the morning of October 16, 2010. At the time, she was
     nineteen years old, a student at the Community College of
     Philadelphia, and working late shifts as a preparatory cook in the
     kitchen of Sugarhouse Casino in Philadelphia. Shortly after
     midnight that morning, after completing her shift, she began her
     commute to her house in Cheltenham. She took the Market-
     Frankford rapid transit line to the Frankford Transportation
     Center, where she then took the Route 24 bus to Cheltenham.

     Video surveillance footage of the Frankford Transportation
     Center shows [S.R.] alone as she waited for the Route 24 bus
     between 12:34 a.m. and 12:51 a.m. This video also shows
     [Rosser] alone waiting at the same bus stop and standing
     approximately twenty (20) feet away from [S.R.].       [S.R.]


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     testified that, at the time, she was unaware of [Rosser] and his
     presence at the same bus stop. She identified him in the
     footage several months before trial. The only person [S.R.]
     spoke to on the bus was the bus driver, to whom she said ‘hello’
     and ‘good-bye.’

     Next, video surveillance footage of a Wawa convenience store
     shows the Route 24 bus pulling up to the Cheltenham station at
     1:05 a.m., where [S.R.] stepped out of the bus alone, and
     walked across the street to the Wawa. At 1:06 a.m., the footage
     shows an unaccompanied [S.R.] entering the Wawa, where she
     checked her bank account balance, and purchased a cup of
     coffee. At 1:10 a.m., the footage shows [S.R.], still by herself,
     exiting the store. [S.R.] testified that she never saw nor spoke
     to [Rosser] at or near the Wawa. She had no knowledge of
     [Rosser]’s existence or presence in proximity to her that night.

     According to [S.R.], it was cold outside when she left the Wawa,
     and she immediately began the five-to-ten-minute walk to her
     house on Woodland Avenue. She walked in the middle of the
     street, where her mother had told her she would be able to see
     anyone approaching her if she was alone, and where she thought
     she would be safer.

     When she was approximately a quarter of the way down the
     street where she lived, she heard quick, heavy footsteps behind
     her. Before she could see who was rushing behind her, she felt
     someone forcefully grab her head and place a strong and firm
     arm around her throat. Having just taken a sip of her coffee,
     [S.R.] choked on the liquid, and was unable to scream. As she
     tried to cough the coffee out of her mouth, and in her shock, she
     only managed to exclaim the words, ‘My coffee. My coffee.’ She
     heard her attacker repeat, ‘Shh, you are being too loud. You are
     being too loud.’

     Standing directly behind her, he lifted and guided her from the
     street and toward the sidewalk. He then directed her toward a
     small grassy hill leading to the front entrance steps of
     Preservation of the Blessed Virgin Mary (BVM) Parish School,
     where [S.R.]’s family were members of the parish. As they
     reached the grass, [S.R.] tripped and stumbled forward. She
     caught herself on the sidewalk with one hand, held her coffee
     cup with the other hand, and managed to finish coughing up the
     coffee that was stuck in her throat. She told [Rosser] that she

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     did not have any money. He continued to hold her by the
     throat, and guide her up the small hill and across a mulch-
     covered pathway until they reached a dark, secluded lawn area
     between the school and an ivy-covered fence.

     [S.R.] testified that by sensing the strength and firmness with
     which he pressed his arm around her throat, she surmised that
     he was stronger than she, so she decided not to try to fight back
     for fear of a more violent consequence. She was not sure if he
     had a weapon. She also felt [Rosser] relax the pressure around
     her throat as she lessened her resistance and complied with his
     demands. She felt that she was being overpowered physically
     and that submitting to his demands was the only way to survive.

     In the secluded lawn area next to the school, [Rosser]
     maintained one hand around her throat, and placed her cup on
     top of an air conditioner unit sticking out of the building. She
     repeatedly begged him not to hurt her, and he replied that she
     was being too loud, and warned her, ‘Don’t make me hurt you,’
     and ‘Don’t scream.’ He then reached into the waistband of her
     pants and underwear and pulled them down to right above her
     knees. He pressed on her back, and guided her to bend over
     and get down on all fours on the ground in front of him. [S.R.]
     continued to beg him not to hurt her, and he replied that he
     would only hurt her if she made him hurt her. [Rosser] then
     unzipped his pants, and began to vaginally rape [S.R.] from
     behind.

     As the rape began, [S.R.] repeated her pleas with him not to
     harm or kill her. She eventually noticed that [Rosser] began to
     ease up on the amount of pressure he used to hold her. He no
     longer had his arm around her neck. Instead, he held one of her
     arms behind her back and he placed one arm over the arm she
     had planted on the ground. At one point, [Rosser] removed his
     penis from her vagina and tried to insert it in her anus. She
     asked him not to do that, and he reinserted his penis in her
     vagina and continued to vaginally rape her. She continued to
     beg [Rosser] not to hurt her, and he finally told her, ‘I’m not
     going to hurt you.’ [S.R.] then put her pinkie finger up and
     asked, ‘Pinkie swear that you are not going to hurt me.’ [Rosser]
     did so. [S.R.] was determined to gain [Rosser]’s trust so that he
     would uphold his promise and she could get home safely. She
     pretended to enjoy the rest of the rape by sitting up and leaning
     into him. The rape lasted approximately three minutes. When it

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     was over, and as he gathered himself, he said, ‘Maybe I should
     get your number.’ She laughed out loud at the idea that the
     stranger who just raped her wanted her number.

     After they both stood up from the ground, she asked him, ‘How
     do we end this?’ He responded that since she was so good, he
     would let her see his face. [S.R.] turned around to see [Rosser]
     smiling at her with big eyes. He was wearing a dark hoodie with
     a brightly-colored collared shirt underneath. She introduced
     herself as ‘Shannon’ and he introduced himself as ‘Wakim.’
     [S.R.] testified that she believed it was in her interest to give
     him truthful identification information. She was afraid that if he
     somehow tried to verify the information that she would
     jeopardize any goodwill she believed she had and needed in
     order to survive. She then asked him if he had used a condom,
     and he replied that he had not. She asked him if he was ‘clean,’
     and he stated that he was. Finally, she asked him if he would
     like to walk her home and he replied that he would. She
     testified that she did not want to run to her house, because ‘[i]t
     would look like I am running to call the cops, which I had every
     intention of doing.’ She continued, ‘l knew I would get home
     faster if I tried to just keep my cool as long as I could.’

     As [Rosser] walked [S.R.] to her front door, he told her that he
     followed her from the train because he was cold and she looked
     warm. She asked him what he would have done if they had not
     ‘become friends,’ and he responded, ‘I would have put you to
     sleep.’ He then showed her what he meant by putting his index
     finger up to his throat, turning his head, and closing his eyes.

     At the doorstep to [S.R.]’s house, [Rosser] pulled out his phone.
     [S.R.] took this to mean that he wanted her phone number, so
     she gave him her real number. [S.R.] still did not know if
     [Rosser] had a weapon on him, and she believed it was safer to
     give him her real contact information in case he tried to verify it
     before she could get in her house. After he recorded her
     number, he opened his arms to hug her, and she complied.
     Before he left, he asked, ‘We are going to keep this our little
     secret, right?’ to which [S.R.] responded in the affirmative.

     Once inside, she locked the door, and peered through the
     window to see [Rosser] walk up the street. As soon as she saw
     that [Rosser] was far enough away from the house, and within
     approximately five seconds of entering the house, she turned

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     around and revealed to her brother, who was sitting in the living
     room, that she had just been raped. Her brother immediately
     instructed her to tell her father, who was sleeping upstairs.

     [S.R.] began calling the police as she ran up the stairs to wake
     up her father. The time was 1:28 a.m. She frantically informed
     her father that she had just been raped, and that she was on the
     phone with the police. While on the phone with the dispatcher,
     she received a call from an unknown number. [S.R.] rightly
     concluded that it was [Rosser] calling her. She informed the
     dispatcher that she believed she now had her rapist’s phone
     number. The police arrived at [S.R.]’s house approximately four
     minutes after she called the police.

     Officer Matthew Hungerford (‘Hungerford’) took [S.R.]’s
     statement. At trial, Hungerford, a six-year veteran of the
     Cheltenham Police Department, took the stand and testified for
     the Commonwealth. He described [S.R.] as ‘very agitated’ when
     he arrived. He stated that her voice was shaky and trembling,
     but that she was certain of what she was saying. He recalled
     that she was rattling off information about the incident so quickly
     that he had to ask her to calm down so that he could record it
     all.   [S.R.] gave Hungerford the telephone number of the
     unknown caller who called while she was on the phone with the
     dispatcher, and who [S.R.] correctly guessed to be [Rosser].
     Hungerford broadcasted that telephone number to police
     dispatch.

     While Hungerford was taking [S.R.]’s statement, Officer Michael
     Friend (‘Friend’) was driving a police vehicle and looking for a
     male who matched the description of the suspect from police
     dispatch. At trial, Friend, a seventeen-year veteran of the
     Cheltenham Police Department, testified that he had received a
     dispatch report that a sexual assault occurred on Woodland
     Avenue and proceeded to look for a suspect who was described
     as a black male, approximately 55, with a short Afro haircut,
     wearing a black hoodie, brightly-colored shirt, and blue jeans.

     Friend testified that, after the flash from the dispatcher informed
     him that the suspect had gone toward Old Soldier’s Road, he
     drove towards Rising Sun Avenue to look for the suspect. He
     explained that he proceeded in this direction because there were
     businesses on that street and it would be easier for someone to
     blend in with other people. When Friend pulled up to a red light

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      on Rising Sun Avenue, he observed a male, later identified as
      [Rosser], who fit the description of the suspect, except that
      [Rosser] had removed his black hoodie. Friend explained that,
      through his experience and training, he understood that a
      suspect may shed clothing in an effort to alter his appearance
      after a crime. [Rosser] now wore the brightly-colored shirt over
      a black, long-sleeved shirt, and he was carrying a plastic
      garbage bag that appeared to be filled with clothing. Friend
      exited the vehicle, and obtained [Rosser]’s consent to look in the
      garbage bag. [Rosser]’s black hoodie was not in the bag. At
      trial, Friend stated that [Rosser]’s hoodie was not discarded in
      an open area and that police never located it.

      After searching the bag, Friend began to take down [Rosser]’s
      information for the police report that is required whenever police
      make a pedestrian stop. He called into dispatch with [Rosser]’s
      information, including his telephone number.         That number
      matched the number that Hungerford had broadcasted to
      dispatch only six minutes prior. Based on the matching physical
      description and telephone number of the suspect and [Rosser],
      Friend placed [Rosser] in handcuffs. Hungerford and [S.R.]
      arrived at the scene where identification was made, and Friend
      then transported [Rosser] to the police station.

      Hungerford escorted [S.R.] to Abington Memorial Hospital, where
      Dana Liskova (‘Liskova’), a sexual assault nurse examiner
      (‘SANE’ nurse), conducted a sexual assault examination of
      [S.R.]. At trial, Liskova was qualified as an expert in the area of
      sexual assault forensic examinations. Liskova testified that in
      addition to examining [S.R.], she reviewed [S.R.]’s medical
      history and her account of the assault and rape. After relating
      the facts, knowledge, and experience on which she was relying,
      Liskova rendered her expert opinion that, within a reasonable
      degree of medical certainty, [S.R.]’s injuries were consistent
      with the history that [S.R.] had given her.

      At trial, counsel stipulated that [Rosser] and [S.R.] had engaged
      in sexual intercourse on the morning of October 16, 2010.

Trial Court Opinion, at 2-10 (citations omitted).

      Trial proceedings.       Rosser was charged with rape by forcible

compulsion, sexual assault, indecent assault, indecent assault by forcible


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compulsion, simple assault, recklessly endangering another person and

terroristic threats.1

       There were two jury trials. The first trial ended in a mistrial when the

jury acquitted Rosser of simple assault but could not reach a verdict on the

remaining charges.

       During Rosser’s first trial, defense counsel cross-examined S.R. as

follows:

       [Defense counsel]: And [Rosser] told you, I can’t see you again,
       we could be friends, but I have a girlfriend, didn’t he?

       [S.R.]: Absolutely not.

       [Assistant district attorney]: Objection, Your Honor.

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

N.T., 4/24/12, at 289-90.

       The next morning, the court stated the basis for its decision:

       [I]n order to ask a question on cross-examination that is not in
       the facts of the case as of yet, you have to make a
       representation to me if you are going to ask that question that
       you are going to be able to back it up in your case, present facts
       that will substantiate or at least for the jury to make a decision
       whether it substantiates the question. In other words, just to
       ask any question and throw anything out there that say like,
       well, aren’t you weird or aren’t you this or that or haven’t you
       done X, Y, Z, and it has not been introduced as - or in evidence
       at that point, I’m not going to let you do it, unless you make a
____________________________________________


1
 18 Pa.C.S. §§ 3121(a)(1), 3124.1, 3126(a)(1) & (a)(2), 2701(a)(1), 2705
and 2706(a)(1), respectively.



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       representation that you can deal with it - back it up [in] your
       case-in-chief.

N.T. 4/25/12, at 5.2         Defense counsel did not represent that he could

support the factual assertions of his questions with evidence.                  Rosser

presented no evidence to substantiate his alleged statement to S.R. Indeed,

he elected not to testify or present a defense.              N.T., 4/26/12, at 111-12

(Rosser decides not to testify or present defense).

       Before closing argument, defense counsel claimed that he had the

right to argue the facts implicit in his question to the jury: “I think I should

be    permitted     to   fairly   argue,       you   know,   an   alternative   to   the

Commonwealth’s theory of the case about consensual sex.” N.T., 4/26/12,

at 114. The court responded: “[The Commonwealth] is specifically pointing

to some … things that you told me that your client told you. I’m not going

to permit that because there … is no basis for that. It is not in evidence.”

Id.


____________________________________________


2
 The certified record does not include the April 25, 2012 notes of testimony.
This quotation appears in the Commonwealth’s en banc brief.

Rosser, as the appellant, had the duty to ensure that we received the entire
record for review, including all necessary transcripts.      See Pa.R.A.P.
1911(a); Commonwealth v. Peifer, 730 A.2d 489, 492 n.3
(Pa.Super.1999). When the appellant fails in this task, “we can take such
action as we deem appropriate, including dismissal of the issue.”
Commonwealth v. Houck, 102 A.3d 443, 457 (Pa.Super.2014). In this
case, we find that the appropriate action is to accept the quotation in the
Commonwealth’s brief as accurate.



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       Prior to Rosser’s second trial, the Commonwealth moved in limine to

preclude defense counsel from questioning S.R. with regard to Rosser’s

alleged statement. Defense counsel responded:

       [I] think the Commonwealth’s position is that [the statement]
       essentially is hearsay. And I would just suggest to the Court
       that it is not hearsay because the definition of hearsay is an out-
       of-court statement offered for the truth of the matter asserted.
       And that type of question is not any attempt to prove that, in
       fact, [Rosser] has a girlfriend with a baby,[3] just that [the
       statement] was said.

N.T., 1/14/13, at 23. The court directed that defense counsel “[cannot] ask

her any of those questions, unless you … represent to me [that] you are

going to be bringing it into evidence somehow. And I don’t think you can

represent that to me.” Id. at 25. Defense counsel answered: “I agree with

your Honor.      I don’t necessarily agree with your ruling.     Please note my

exception on the record.”        Id.    The court precluded defense counsel from

asking S.R. whether “[Rosser] during the course of your walk told you that

he had a girlfriend and a baby with that girlfriend.” Id. at 22.

       Rosser elected not to testify during his second trial.    The jury found

him guilty on all charges, including the simple assault charge on which he

previously had been acquitted. On June 4, 2013, the trial court sentenced

Rosser to an aggregate term of imprisonment of 6½-13 years’ imprisonment

____________________________________________


3
  During the first trial, defense counsel did not ask S.R. whether Rosser
stated that he and his girlfriend had a baby. Our analysis below remains the
same regardless of this extra detail.




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followed by 9 years’ probation.         Rosser filed timely post-sentence motions

challenging, inter alia, the weight of the evidence and the legality of his

simple assault conviction. In an order docketed on September 6, 2013, the

court granted Rosser’s motion to vacate his simple assault conviction,

resulting in reduction of his probationary sentence to 7 years’ probation.

The court denied all other post-sentence motions.

       On October 8, 2013, Rosser filed a petition for leave to file a direct

appeal nunc pro tunc, alleging that he never received the September 6,

2013 order deciding his post-sentence motions. The Commonwealth did not

object to Rosser’s petition.       On October 28, 2013, the trial court granted

Rosser leave to appeal nunc pro tunc within thirty days. On November 27,

2013, Rosser filed a notice of appeal.4

       Appellate proceedings.            Rosser filed a timely Pa.R.A.P. 1925(b)

statement in which he claimed, for the first time, that the trial court violated

his constitutional right of confrontation by granting the Commonwealth’s

motion in limine to preclude defense counsel from cross-examining S.R.

about Rosser’s statement during the walk to S.R.’s house.               Pa.R.A.P.

1925(b) Statement, ¶ 2.           On January 24, 2014, the trial court filed a

Pa.R.A.P. 1925(a) opinion which defended its decision to grant the
____________________________________________


4
  Rosser purports to appeal from the trial court’s order denying his post-
sentence motions, but a direct appeal in a criminal proceeding is from the
judgment of sentence. Commonwealth v. Preacher, 827 A.2d 1235, 1236
n.1 (Pa.Super.2003). We have amended the caption accordingly.



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Commonwealth’s motion on the grounds that (1) Rosser’s statement was

inadmissible hearsay, and (2) assuming that there was a Confrontation

Clause error, such error was harmless due to the strength of the

Commonwealth’s case against Rosser. Pa.R.A.P. 1925(a) Opinion, at 15-19.

      On March 16, 2015, in a 2-1 decision, a panel of this Court vacated

Rosser’s judgment of sentence and remanded for a new trial. The panel held

that Rosser’s statement was not hearsay, and that the trial court’s decision

to preclude cross-examination about Rosser’s statement to S.R. violated his

constitutional right of confrontation.    Notwithstanding the evidence against

Rosser, the    panel stated, “the        questions regarding   Rosser’s alleged

statements about his inability to have a romantic relationship with [S.R.]

because of his girlfriend and baby were crucial to Rosser’s attempts to call

[S.R.’s] credibility with the jury into question.” Commonwealth v. Rosser,

No. 3258 EDA 2013, at 8 (Pa.Super., 3/16/15).

      On March 30, 2015, the Commonwealth filed a timely application for

reargument en banc.       The Commonwealth did not contest the panel

majority’s conclusion that Rosser’s alleged statement was not hearsay.

Instead, the Commonwealth argued that there was no Confrontation Clause

violation because there was no proof that Rosser actually made the

statement to S.R.     Stated another way, Rosser had no right to cross-

examine S.R. on a subject for which no factual foundation existed. On May

20, 2015, this Court granted the Commonwealth’s motion for en banc

review.

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                                     II.

      In his en banc brief, Rosser presents two issues, which we re-order for

purposes of disposition:

      1. Did the trial court violate [Rosser’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 [Rosser] during the walk to her house[,] as such
         testimony was aimed at establishing the complainant’s motive
         to fabricate the allegations against [Rosser]?

      2. Did the trial court abuse its discretion in denying [Rosser’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?

Brief for Appellant, at 5.

      In his first argument, Rosser contends that the trial court violated his

constitutional right of confrontation by granting the Commonwealth’s motion

in limine to preclude defense counsel from cross-examining S.R. during

Rosser’s retrial about whether Rosser said, “I can’t see you again, we could

be friends, but I have a girlfriend,” while they walked home following sexual

intercourse.

      The Commonwealth contends, and we agree, that Rosser has waived

this issue. “One must object to errors, improprieties or irregularities at the

earliest possible stage of the criminal ... adjudicatory process to afford the



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jurist hearing the case the first occasion to remedy the wrong and possibly

avoid an unnecessary appeal to complain of the matter.” Commonwealth

v. Strunk, 953 A.2d 577, 580 (Pa.Super.2008). “Issues not raised in the

[trial] court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a).   [T]rial judges must be given an opportunity to correct

errors at the time they are made.” Id. at 579. Where the trial court denies

relief on one theory, a defendant may not attain appellate relief on a new

theory for that same relief. Commonwealth v. York, 465 A.2d 1028, 1032

(Pa.Super.1983); see also Commonwealth v. Lopez, 57 A.3d 74, 81-82

(Pa.Super.2012) (party complaining on appeal of admission of evidence in

trial court is confined to specific objection there made; if counsel states

ground for an objection, all other unspecified grounds are waived and cannot

be raised for first time on appeal).

      During his first trial, Rosser failed to argue that preclusion of cross-

examination about his statement to S.R. violated his constitutional right of

confrontation.   Nor did he raise this issue during his second trial.   Rosser

merely argued, in response to the Commonwealth’s motion in limine, that

cross-examining S.R. on this subject would not elicit hearsay. The first time

Rosser claimed that the trial court violated his right of confrontation was in

his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Because




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Rosser cannot switch legal theories on appeal in this manner, York, Lopez,

supra, he has waived his constitutional right of confrontation argument.5

       Even if Rosser preserved this issue for appeal, it is devoid of merit.

We review the grant of a motion in limine for abuse of discretion.

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

____________________________________________


5
  Although the Commonwealth failed to raise the waiver issue before the
original panel in this Court, we may still affirm on the basis of waiver,
because “we may uphold a decision of the trial court if there is any proper
basis for the result reached.” Nationwide Mut. Ins. Co. v. Fleming, 924
A.2d 1259, 1269 (Pa.Super.2007).

There is a second reason why the Commonwealth’s omission is excusable.
When the original panel in this Court reversed the trial court, the
Commonwealth, as the original prevailing party, had the right to request en
banc reargument on issues not previously raised on appeal, including
alternative rationales for affirming the trial court’s decision, because this was
the first time that the Commonwealth was an aggrieved party.                  See
Sernovitz v. Dershaw, -- A.3d --, 2015 WL 7283223, *7 n.9 (in wrongful
death action, (1) defendants asserted laches-type argument in preliminary
objections to amended complaint, (2) trial court sustained preliminary
objections and dismissed amended complaint, (3) plaintiff appealed to
Superior Court, (4) defendants did not raise laches-type argument before
Superior Court panel, (5) panel reversed order dismissing amended
complaint, (6) defendants filed application for reargument raising laches-
type argument, (7) Superior Court denied reconsideration, and (8)
defendants appealed to Supreme Court; Supreme Court held that
defendants “have not waived [the laches-type] argument. Defendants
forwarded it in briefs supporting their preliminary objections … As the
appellees before the Superior Court, they did not bear the burden of issue
preservation … Upon becoming aggrieved by the intermediate court's
decision, defendants addressed the topic in seeking reargument in that
tribunal and discretionary review in this Court …”).



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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). In addition, the trial court has broad discretion regarding

“both     the    scope     and     permissible     limits   of    cross-examination.”

Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa.2011). “The trial judge’s

exercise of judgment in setting those limits will not be reversed in the

absence of a clear abuse of that discretion, or an error of law.” Id.

        The Confrontation Clause in the Sixth Amendment to the United States

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

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

A.2d 618, 630 (Pa.2010). Moreover, “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).6


____________________________________________


6
  The Pennsylvania Constitution includes a right of confrontation. See Pa.
Const., Article I, § 9 (“in all criminal prosecutions the accused hath a right to
be heard by himself and his counsel [and] to be confronted with the
witnesses against him”). But because Rosser does not argue that Article I,
section 9 provides him with greater protection than the Sixth Amendment,
we will treat the state and federal provisions as coextensive for purposes of
this opinion. See Commonwealth v. Kratsas, 764 A.2d 20, 27 n. 5
(Pa.2001) (“while Appellees have suggested that this Court has the ability to
construe Article I, Section 9 more broadly than federal due process, they
have offered no particular reasons to support such a departure; therefore,
(Footnote Continued Next Page)


                                          - 16 -
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      Although the right of cross-examination is a fundamental right, it is

not absolute.     The trial court may place reasonable limits on defense

counsel’s cross-examination of a prosecution 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.”    Van Arsdall, 475 U.S. at 679.                 “Generally speaking, the

Confrontation    Clause       guarantees     an     opportunity   for   effective   cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.”               Delaware v. Fensterer, 474

U.S. 15, 20 (1985).

      Van Arsdall articulates two inquiries for determining whether a

limitation on cross-examination violates the Confrontation Clause. First, we

inquire whether the limitation prejudiced the examination of that particular

witness. In other words, absent the limitation, would the jury have received

a “significantly different impression” of the witness’s credibility? Id. at 679-

80. Second, if there was error, we must determine whether it was harmless

beyond a reasonable doubt; if so, reversal is not warranted. Id. at 681.

      Courts have found violations of the Confrontation Clause when the trial

court prohibits defense counsel from cross-examining a prosecution witness

about a verifiable fact that supports the defense.                In Van Arsdall, for
                       _______________________
(Footnote Continued)

we continue to treat the pertinent constitutional guarantees as coterminous
for purposes of this opinion”).



                                           - 17 -
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example, the trial court prohibited all inquiry into public drunkenness

charges against the prosecution witness that the state had dropped.               The

state conceded that the underlying events took place, i.e., the witness had

been arrested for public drunkenness and the state had dropped charges

against him.      The Court held that the trial court’s ruling violated the

defendant’s right of confrontation, for if the jury had been allowed to

consider those events, it “might reasonably have found [the events]

furnished the witness a motive for favoring the prosecution in his

testimony.”     Id., 475 U.S. at 678-79.      And in Davis v. Alaska, 415 U.S.

308 (1974), the United States Supreme Court held that the trial court’s

refusal to allow the defendant to cross-examine a key prosecution witness to

show his probation status following an adjudication of juvenile delinquency

violated    the       defendant’s    constitutional    right    of    confrontation,

notwithstanding the state’s policy of protecting the anonymity of juvenile

offenders. Once again, the trial court prevented the jury from considering

an objective, verifiable fact that supports the defense.

      The     right   of   confrontation,   however,   does    not   permit   “fishing

expeditions”.     DiBenedetto v. Hall, 272 F.3d 1, 11 (1st Cir.2001).             The

court may prohibit cross-examination on a particular subject “if the party is

unable to lay a proper evidentiary framework.”          Id.    “Without such limits,

unchecked cross-examination on a theory of bias may unfairly prejudice the

opposing party’s case and only bring forth ‘marginally relevant’ evidence.”


                                        - 18 -
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United States v. Martinez-Vives, 475 F.3d 48, 54 (1st Cir.2007) (quoting

Van Arsdall, 475 U.S. at 679). Thus, in Martinez-Vives, the First Circuit

found no Confrontation Clause violation where the trial court prohibited

cross-examination of two witnesses concerning police bias, because the

defendant “[failed to make] any proffer of evidence to serve as a foundation

for that theory.” Id. Other courts have reached similar conclusions. See

Dorsey v. Parke, 872 F.2d 163, 168 (6th Cir.1989) (trial court’s limits on

cross-examination of prosecution witness as to his mental stability did not

violate Confrontation Clause, where record suggested no factual basis for

such questioning); United States v. McCarty, 82 F.3d 943, 949-50 (10th

Cir.1996) (restricting defendant’s cross-examination of his probation officer

regarding her allegedly advising defendant that he would experience more

favorable probation treatment if he had sexual intercourse with her did not

violate defendant’s right to confrontation; cross-examination was particularly

invasive, injurious line of questioning concerning wholly unsubstantiated

allegations of sexual impropriety); State v. Barnes, 657 A.2d 611, 615-16

(Conn.1995) (disallowing defendant’s proposed cross-examination of victim

as to his alleged drug use, financial problems or reports of previous

burglaries did not violate defendant’s right to confrontation in larceny

prosecution; defendant had no reason to believe that victim actually had

drug or money problems or had previously reported robberies).




                                    - 19 -
J-E03006-15


      To our knowledge, Pennsylvania appellate courts have not explicitly

endorsed the “fishing expedition” limitation on the constitutional right of

confrontation. A recent decision by our Supreme Court, however, implicitly

endorses this principle. See Briggs, supra. In Briggs, a capital case, the

defendant sought to present his brother as the murderer, and as part of this

strategy, the defendant attempted to cross-examine a Commonwealth

witness, his ex-girlfriend, about threats that his brother allegedly made to

her. There was no evidence that the defendant’s brother had threatened the

witness; to the contrary, the defendant’s brother denied during his trial

testimony that he threatened her. Even so, the trial court offered to allow

this cross-examination if the defendant produced evidence that his brother

was in the area of the murder at the time it occurred. The defendant could

not provide any such evidence, and the court precluded the proposed cross-

examination.   Without mentioning the Confrontation Clause, our Supreme

Court held that the trial court’s decision was a proper exercise of discretion,

because “the record [shows] that [the defendant] did not provide the

requisite foundation for the avenue of cross-examination he wished to

pursue.” Id., 12 A.3d at 335.

      In our opinion, Briggs’ logic is entirely consistent with the prohibition

against “fishing expeditions” in the foregoing decisions interpreting the

federal Confrontation Clause.    Therefore, we now make explicit what is

implicit in Briggs: the Sixth Amendment does not entitle the defendant to


                                    - 20 -
J-E03006-15


cross-examine a Commonwealth witness on a subject for which the

defendant cannot provide a factual foundation.

       In this case, during Rosser’s first trial, S.R. denied under cross-

examination that Rosser said, following his sexual assault: “I can’t see you

again, we could be friends, but I have a girlfriend.” Rosser did not testify.

Prior to Rosser’s second trial, the Commonwealth moved to preclude him

from cross-examining S.R. on this subject again.     The trial court (like the

trial court in Briggs) precluded this cross-examination unless Rosser

promised to support it with facts in his case-in-chief. Rosser did not testify

during his second trial; nor did Rosser posit any reason to believe that S.R.

would change her answer on this subject during the second trial. Because

Rosser failed to provide any foundation for his proposed cross-examination –

i.e., because he failed to provide any evidence that he actually made this

statement to S.R. -- the trial court properly precluded defense counsel from

cross-examining S.R. about the alleged statement during Rosser’s second

trial.7,   8




____________________________________________


7
  In its brief before the panel, the Commonwealth did not argue that
Rosser’s proposed question to S.R. was improper due to lack of any factual
foundation. The Commonwealth merely argued that any error in denying
this line of cross-examination was harmless due to the overwhelming
evidence of Rosser’s guilt. The panel thus reversed Rosser’s judgment of
sentence without having any realistic opportunity to analyze the
Confrontation Clause issue before us now. Nevertheless, for the reasons
articulated in footnote 5, supra, the Commonwealth has the right to raise
(Footnote Continued Next Page)


                                          - 21 -
J-E03006-15


      In his remaining argument on appeal, Rosser argues that the verdict

was against the weight of the evidence. We disagree.

      The law pertaining to weight of the evidence claims is well-settled:

      The weight of the evidence is a matter exclusively for the finder
      of fact, who is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses. A new trial is
      not warranted because of a mere conflict in the testimony and
      must have a stronger foundation than a reassessment of the
      credibility of witnesses. Rather, the role of the trial judge is to
      determine that notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice. On appeal, our
      purview is extremely limited and is confined to whether the trial
      court abused its discretion in finding that the jury verdict did not
      shock its conscience. Thus, appellate review of a weight claim
      consists of a review of the trial court’s exercise of discretion, not
      a review of the underlying question of whether the verdict is
      against the weight of the evidence. An appellate court may not
      reverse a verdict unless it is so contrary to the evidence as to
      shock one’s sense of justice.

Commonwealth v. Gonzalez,                  109      A.3d   711,   723   (Pa.Super.2015)

(citations omitted).

      The trial court cogently explained why Rosser’s weight of the evidence

claim was unsuccessful:

                       _______________________
(Footnote Continued)

this argument during en banc proceedings, and we have the authority to
affirm the trial court on this basis.
8
  Rosser’s en banc brief almost completely fails to address the first prong of
the Van Arsdall test (whether there was any Confrontation Clause error)
and focuses mainly on the second prong (whether the error was harmless
beyond a reasonable doubt).        Because we hold that there was no
Confrontation Clause error, we need not address Rosser’s argument relating
to the second prong of Van Arsdall.



                                           - 22 -
J-E03006-15


      As was within its province, the jury believed that [Rosser]
      attacked, threatened, and forcibly raped [S.R.]. The jury
      believed [S.R.]’s testimony that her encounter with [Rosser] was
      not consensual. Video surveillance footage and police records
      show a mere eighteen-minute span between the time that [S.R.]
      step[ped] off the bus alone, and the time that she calls the
      police to report that she had been raped on her walk home. The
      jury credited [S.R.]’s testimony regarding her decision not to
      fight back: that the abrupt and forceful way she had been
      attacked and [Rosser]’s threatening statements made her fearful
      for her life, and that she believed the only way to survive was to
      pretend to befriend her attacker. The jury was well aware of the
      difficult circumstances under which [S.R.] had to tell her family,
      law enforcement officials, medical examiners, and the jurors
      themselves, that she had been raped. The jury heard [Officer]
      Hungerford describe [S.R.]’s apparent agitation and shaky,
      trembling voice when he arrived at [S.R.]’s house minutes after
      the incident. The jurors listened to [Nurse] Liskova testify that
      there are medical reasons why a majority of female patients do
      not exhibit genital injuries after being sexually assaulted, and
      opine that her medical findings were consistent with the history
      and facts that [S.R.] gave her. The jury was well within its
      province to decide how much weight to give all the evidence
      presented at trial. This Court did not palpably abuse its
      discretion by denying [Rosser]’s Post-Sentence Motion for an
      acquittal or for a new trial based on the weight of the evidence.

Pa.R.A.P. 1925(a) Opinion, at 14-15.

      For the reasons given by the trial court, we conclude that it properly

exercised its discretion in denying Rosser’s challenge to the weight of the

evidence.

      Judgment of sentence affirmed.

      President Judge Emeritus Bender, Judges Panella, Shogan, Lazarus,

Ott and Stabile join the Opinion.

      Judge Bowes files a concurring statement.

      President Judge Gantman concurs in the result.

                                    - 23 -
J-E03006-15



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016




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