J-S35010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ERIC DRAKE

                            Appellant                     No. 753 EDA 2014


            Appeal from the Judgment of Sentence February 7, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012343-2011


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                   FILED JUNE 18, 2015

        Appellant, Michael Eric Drake, appeals from the February 7, 2014

aggregate judgment of sentence of 20 to 40 years’ imprisonment, imposed

after a jury found him guilty of one count each of aggravated assault, rape

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

compulsion.1 After careful review, we affirm.

        The trial court set forth the facts of this case as follows.

                    Late in the evening of November 27, 2010,
              [Victim] went to a bar located at 52nd and Girard
              Avenue with some friends. Before entering the bar,
              [Victim] observed [Appellant] who was standing
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A. §§ 2702(a)(1), 3121(a)(1), 3124.1, and 3126(a)(2),
respectively.
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          outside of the bar. He started a conversation with
          her and asked her if she wanted to get a drink. They
          then went into the bar to have a drink together.
          After drinking one or two beers, [Victim] told
          [Appellant] that she was leaving the bar to meet a
          friend. [Appellant], who lived about a block away
          from [Victim’s] friend, asked to walk with her. As
          they were walking, [Victim] called her friend and
          learned that he would not be home for another 10
          minutes. While she waited for the friend to arrive,
          [Victim] asked if she could use the bathroom at
          [Appellant]’s house.

                After [Victim] used the bathroom on the
          second floor, she walked downstairs toward the front
          door. [Appellant] asked her where she was going.
          [Victim] replied that she was leaving to meet her
          friend.   [Appellant] then grabbed [Victim] from
          behind by her hair. He told her that she was not
          going anywhere and punched her several times on
          the left side of her face with a closed fist, which
          caused her face to swell and her mouth to bleed. He
          then dragged her to the dining room and laid down a
          blanket. [Appellant], who had already taken off his
          clothes, started to rip off [Victim’s] clothes. He
          pushed [Victim] to her knees and forced his penis
          into her mouth. [Appellant] also forced her to have
          vaginal sex. After he ejaculated, [Victim] asked if
          she could use the bathroom to look at her face and
          put her clothes back on.

                After looking at her face in the bathroom,
          [Victim] left the bathroom and walked back
          downstairs. [Appellant] asked her, “What was I
          doing?” [Victim] replied, “I have family. I have
          kids. I have to go home. I have people waiting for
          me.” In response, [Appellant] hit her again and
          threw her to the floor. He said, “Shut up, B. Be
          quiet. I didn’t ask you to talk. You’re not going
          anywhere. I’m not finished with you yet. I’m having
          anal sex with you. It’s not over yet. I’m not finished
          with you.”




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                At this point, [Victim] feared for her life. She
          stood up and looked for anything that she could use
          as a weapon to ward off another assault by
          [Appellant]. With nothing in sight, [Victim] decided
          to punch the glass window of a china cabinet to
          obtain a piece of broken glass as a weapon to cut
          [Appellant]. When she punched the glass, [Victim]
          suffered severe cuts to her right arm and was
          bleeding heavily.       As [Victim] went to lash at
          [Appellant] with the broken shard of glass, he fled
          the house wearing only his jeans. [Appellant] left his
          wallet, jacket, identification, and money in the dining
          room where he had assaulted [Victim]. In an effort
          to alert someone, [Victim] broke the front windows
          of the house. She ultimately went to the house next
          door and told the boy who answered the door that
          she needed help because she had just been raped.

                [Victim] was transported to Jefferson Hospital
          where she received stitches to her arm and hand.
          Hospital staff documented injuries to her lip, swelling
          to her face, and cuts on the inside of her mouth. A
          rape kit was performed on [Victim]. Prior to the
          rape kit being performed, however, doctors had to
          remove a tampon, which was pushed very far inside
          of [Victim’s] vagina. [Victim] had used a tampon
          because she was in her menstrual period.

                 Detective Lara Hammond of the [s]pecial
          [v]ictims [u]nit met with [Victim] at her home on
          November 29, 2010. [Victim] provided a signed
          statement to Detective Hammond regarding the
          assault.       [Victim] also   positively  identified
          [Appellant] from a photo array. Detective Hammond
          issued a warrant for [Appellant]’s arrest. Detective
          Hammond also collected evidence from and took
          photographs of [Appellant]’s home.

                At trial, [Victim] testified that she never
          consented to sexual intercourse with [Appellant],
          and that she never made any deal with him to trade
          sex for drugs. She admitted that, prior to going to
          the bar, she smoked two marijuana cigarettes laced
          with crack and took her prescribed medications of

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          Flurazine and Remeron. During the trial, [Victim]
          was in custody for violating her probation. She
          testified that the prosecutor made no promises to
          her regarding her violation of probation for her
          testifying at trial. On cross-examination, [Victim]
          conceded that her statement to Detective Hammond
          contained inconsistencies, but stated that they were
          the result of her being hysterical at the time and
          “coming down off medicine from the hospital.”

                 [Philadelphia police officer Mark McDermott
          testified that] [o]n November 28, 2010, at 5:38am,
          [he] was on routine patrol in a marked police vehicle
          in the area of 58th and Master Streets when he
          observed [Victim] “waving her arms, flailing as she
          was in a panic mode. As we got closer, we could see
          that she was covered in blood, and she looked to be
          in extreme need of emergency assistance.” Officer
          McDermott asked [Victim] what happened. [Victim]
          replied that she had just been raped at 5802 Master
          Street. Officer McDermott went to the house and
          observed blood all over the porch, a broken front
          window, large amounts of blood in the living room, a
          china cabinet that had a broken pane of glass, and
          blankets and pillows next to the china cabinet.

                 [Philadelphia police officer Jeffrey McMahon
          testified that] [o]n July 19, 2011, [he] was on
          routine patrol in a marked police vehicle. Officer
          McMahon conducted a traffic stop of a gold Nissan
          Altima driven by [Appellant] to investigate the
          vehicle’s brake light that was not operating. When
          Officer McMahon asked [Appellant] for his driver’s
          license, [Appellant] provided the officer with a false
          name. After being unable to confirm his identity
          based upon the false name, Officer McMahon
          removed [Appellant] from his vehicle. [Appellant]
          then provided his real name and was arrested
          pursuant to the warrant by Detective Hammond.

                Gamal Emira testified as an expert in forensic
          science. Based upon his review of certain samples
          from the rape kit performed on [Victim], he testified,


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              inter alia, that the vaginal and vulva swabs were
              positive for sperm.

                     David Hawkins testified as an expert in forensic
              DNA analysis. Based upon his review of certain
              samples from the rape kit performed on [Victim] and
              from a swab from [Appellant], he testified, inter alia,
              that [Appellant] was a male source of the DNA
              mixture contained in the vaginal swab sperm cell
              infraction and the rectal swab E cell fraction.2


              2
                Hawkins also testified at trial regarding the first
              and fourth opinion in his report, i.e., that: (1)
              Defendant was excluded as a male source of the
              DNA mixture contained in the vaginal swab E cell
              fraction and the rectal swab sperm fraction, and (2)
              another male was a source of the DNA mixture. …
              [T]he trial court specifically instructed the jury that
              the trial court admitted that testimony in error, that
              those two opinions were stricken from the record,
              and that the jury could not consider those stricken
              opinions in reaching a verdict.

Trial Court Opinion, 10/8/14, at 1-5 (italics in original; headings and

citations omitted).

       On November 2, 2011, the Commonwealth filed an information,

charging Appellant with the aforementioned offenses, as well as one count

each of involuntary deviate sexual intercourse by forcible compulsion,

indecent exposure, simple assault, recklessly endangering another person,

and false imprisonment.2 On August 5, 2013, Appellant proceeded to a four-

day jury trial in absentia. On August 8, 2013, the jury found Appellant guilty
____________________________________________


2
  18 Pa.C.S.A. §§ 3123(a)(1), 3127(a), 2701(a)(1), 2705, and 2903,
respectively.



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of one count each of aggravated assault, rape by forcible compulsion, sexual

assault, and indecent assault by forcible compulsion.        The jury found

Appellant not guilty of involuntary deviate sexual intercourse by forcible

compulsion, and the remaining charges were withdrawn.        On February 7,

2014, the trial court imposed an aggregate sentence of 20 to 40 years’

imprisonment.3 Appellant did not file post-sentence motions. On March 10,

2014, Appellant filed a timely notice of appeal.4


____________________________________________


3
   Specifically, the trial court sentenced Appellant to 10 to 20 years’
imprisonment on the conviction for rape.         On the aggravated assault
conviction, the trial court imposed a sentence of 10 to 20 years’
imprisonment, to run consecutively to the sentence for rape. On the
conviction for sexual assault, the trial court imposed a concurrent sentence
of five to ten years’ imprisonment. On the conviction for indecent assault,
the trial court imposed a concurrent sentence of one and one-half to five
years’ imprisonment. Accordingly, Appellant’s aggregate sentence was 20 to
40 years’ imprisonment.
4
   We observe that the 30th day fell on Sunday, March 9, 2014. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30 th day for Appellant to
file a timely notice of appeal was on Monday, March 10, 2014. As a result,
his appeal was timely filed.

      The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) on March 21, 2014. The statement was due 21 days
from the date of this filing, on April 11, 2014. Appellant’s Rule 1925(b)
statement was not filed until August 8, 2014. Our Supreme Court has
recently held that “Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement, when so
ordered[.]” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issue for our review.

             Whether     denying     Appellant   the    ability to
             cross[-]examine the Commonwealth’s expert, on the
             first and fourth opinions he testified to [on] direct
             [examination], violated Appellant’s Sixth Amendment
             right to confrontation[?]

Appellant’s Brief at 3.       Specifically, Appellant argues that he should have

been allowed to cross-examine Hawkins, the Commonwealth’s DNA expert,

on his conclusions that Appellant’s DNA was not the only male DNA found

during the review of the rape kit performed on Victim.

      We    begin by noting our             standard   for   deciding   issues of the

admissibility of evidence of a sexual abuse victim’s prior sexual conduct.

             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
                       _______________________
(Footnote Continued)

      However, this Court has held that the failure to timely file a Rule
1925(b) statement is the equivalent of a failure to file said statement.
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012), citing
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
banc). Both failures constitute per se ineffective assistance of counsel,
which in criminal cases ordinarily requires a remand for the filing of a Rule
1925(b) statement pursuant to Pa.R.A.P. 1925(c)(3). Id. However, this
Court has held “[w]hen 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.” Id. (citation
omitted). On October 8, 2014, the trial court issued its Rule 1925(a)
opinion, accepting Appellant’s untimely Rule 1925(b) statement, and
addressing the issue Appellant now raises before this Court. Therefore,
pursuant to this Court’s holding in Thompson, we may address the merits
of Appellant’s claim.



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            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. K.S.F., 102 A.3d 480, 483 (Pa. Super. 2014) (citation

omitted).

     The Rape Shield Law provides 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 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) (emphasis added). The purpose of the Rape Shield

Law is to preclude a defendant from shifting the focus of the trial from the

defendant’s culpability to the victim’s virtue and chastity. K.S.F., supra at

484 (citations omitted). To accomplish this, the Rape Shield Law excludes

“irrelevant and abusive inquiries regarding prior sexual conduct of sexual

assault complainants.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.

Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa.

2010).

     Despite the broad scope of the Rape Shield Law, Pennsylvania courts

have recognized an exception to protect an accused’s right to confrontation

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pursuant to the Sixth Amendment of the United States Constitution. K.S.F.,

supra at 483, citing Commonwealth v. Riley, 643 A.2d 1090, 1093 (Pa.

Super. 1994); see also Burns, supra at 690 (noting exceptions to the

Rape Shield Law). Specifically, “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

v. Fensler, 715 A.2d 435, 439 (Pa. Super. 1998) (citation and internal

quotation marks omitted).

      In his sole issue on appeal, Appellant maintains “[he] should have

been allowed to cross-examine [Hawkins regarding the presence of other

male DNA in Victim’s rape kit] and mention it in closing. [] Appellant was

prevented from doing so, in violation of his Sixth Amendment right to

[c]onfrontation.” Appellant’s Brief at 7. Specifically, Appellant argues that

the Commonwealth “opened the door” to such cross-examination by eliciting

testimony during direct examination from Hawkins on his first and fourth

opinions regarding the presence of other male DNA. Appellant’s Brief at 11.

We conclude Appellant’s issue is moot.

      Before the jury trial began, the trial court denied the Commonwealth’s

motion in limine that sought to exclude Hawkins’ first and fourth opinions

regarding the presence of other male DNA.         Thus, on direct examination,

Hawkins testified to said opinions in accordance with the trial court’s ruling.

However,   the   Commonwealth     objected   to    Appellant’s   counsel   cross-


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examining Hawkins on those opinions, and the trial court held an off-the-

record sidebar conference.   N.T., 8/6/13, at 168.    Following this sidebar,

there was no further cross-examination of Hawkins. Id. at 168. Further, at

the end of the first day of testimony, Appellant’s counsel acknowledged that

he made a “strategic decision on behalf of [Appellant] to not conduct a

thorough cross-examination of … Mr. Hawkins.” Id. at 192. During the next

day of trial, the trial judge informed the attorneys that he had reconsidered

his ruling on the motion in limine, and had found Hawkins’ opinions

pertaining to the presence of other male DNA were inadmissible under the

Rape Shield Law.      N.T., 8/7/13, 44-45.      Accordingly, the trial court

instructed the jury that it was removing from the jury’s consideration the

expert’s testimony regarding these opinions as follows.

           Yesterday I allowed the criminalistics expert to
           testify regarding [] the rectal swab and the DNA
           expert to testify regarding four opinions that he
           reached. Upon further consideration, I admitted the
           rectal swab and the first and four[th] opinions in
           error. I’m instructing you that I’m hereby striking
           the testimony and any other evidence of the rectal
           swab and of the first and [fourth] opinions from the
           record, and you cannot consider either the rectal
           swab or the first and fourth opinion in reaching your
           verdict. That is a special instruction given to you
           now.

Id. at 64-65; accord id. at 49; Trial Court Opinion, 10/8/14, at 6-8.

     Based on the trial court’s ruling striking all of the evidence regarding

the presence of other male DNA in Hawkins’ first and fourth opinions,

Appellant’s contention that he should have been permitted to cross-examine

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Hawkins on those opinions and use that evidence in his closing argument is

moot.       Significantly, Appellant concedes that the trial court properly

excluded Hawkins’ first and fourth opinions because they were inadmissible

under the Rape Shield Law. Appellant’s Brief at 7 (admitting “this evidence

would normally be covered under the Rape Shield Law[…]”). Nevertheless,

Appellant argues, “[s]ince this testimony was on direct, it opens the door for

defense to comment and expand on that evidence.”           Id. at 11.    This

question, however, was rendered moot by the trial court’s decision that the

testimony was inadmissible due to the Rape Shield Law, which Appellant

does not contest. Because the testimony was not submitted for the jury’s

consideration, Appellant was not denied his right to confront Hawkins on

stricken testimony nor was he entitled to mention that evidence in his

closing argument.

        Based on the foregoing, we conclude Appellant’s issue is moot.

Accordingly, the trial court’s February 7, 2014 judgment of sentence is

affirmed.

        Judgment of sentence affirmed.

        Judge Olson concurs in the result.

        Judge Platt concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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