J. S25040/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
HOWARD DEMETRIUS TUCKER,                :          No. 962 EDA 2016
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, March 2, 2016,
           in the Court of Common Pleas of Montgomery County
             Criminal Division at No. CP-46-CR-0009299-2012


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 15, 2017

      Howard Demetrius Tucker appeals from the judgment of sentence of

March 2, 2016, following his conviction of various sexual offenses involving

three separate victims over the same three-month time period. Each of the

victims was assaulted at Central Montgomery County Mental Health and

Mental Retardation Center (“Central”), where appellant was employed as a

team leader of the certified peer specialists. Two of the victims were clients

of Central, and the third was a job applicant being interviewed by appellant.

All of them had experienced prior sexual abuse as children.     As described

infra, appellant used his position of authority and trust to sexually assault

the emotionally vulnerable female victims. On appeal, appellant challenges

the sufficiency of the evidence to sustain his conviction of rape by forcible

compulsion and raises other issues including denial of his pre-trial motion to
J. S25040/17


sever.     After careful review, we affirm.       We caution the reader that the

details of the sexual assaults are necessarily factually graphic due to the

specific issues presented by appellant.

                     At trial the following facts were established.
               Victim D.J.[1] had been receiving services from
               [Central] located in Norristown, Montgomery County
               during the relevant time period. D.J. has a history of
               mental illness and childhood sexual abuse. Because
               of the childhood sexual abuse she suffered, she had
               gone to Central as a child. She stopped going, but
               returned there for rape trauma as an adult for
               counseling and drug and alcohol treatment.

                     D.J. first met [appellant] in 2011. He asked
               her many questions, wanted to know her background
               and why she was coming to Central. He inquired as
               to what groups at Central D.J. was attending.
               During the course of that conversation, it came out
               that D.J. had been sexually molested as a child.

                      Not long after their first meeting, D.J. saw
               [appellant] at Central while she was there for her
               regular therapy sessions.       She saw him in the
               hallway, and [appellant] asked her to come to his
               office for the purpose of helping her with job seeking
               activities. Once in his office, [appellant] shut the
               door.      That day, D.J. was wearing religious
               overgarments, and [appellant] said they look nice
               and that he wanted to see what was under them.
               D.J. leaned on [appellant]’s desk to see the papers
               he wanted her to look at. [Appellant] was behind
               D.J., rubbing against her buttocks. D.J. testified that
               he was so close to her that she could feel that he
               had an erection. D.J. tried to get out of [appellant]’s
               office, but it was locked. [Appellant] unlocked it,
               and she was able to get away.

                     About a week later, D.J. saw [appellant] in the
               hallway at Central. [Appellant] told D.J. that he

1
    We will use the victims’ initials to protect their identities.


                                          -2-
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          wanted to talk to her, saying that he had a surprise
          for her.     D.J. was reluctant to follow him but
          [appellant] persisted and she relented. [Appellant]
          shut the door and locked it. D.J. was seated in a
          chair and [appellant] sat in a chair next to hers.
          [Appellant] took out his penis from his pants. D.J.
          was [sic] felt empty, scared and shocked.
          [Appellant] said, “You know you want this” and told
          her to kiss his penis. D.J. responded, “That’s just for
          my husband.”         That didn’t stop [appellant]’s
          persistence. He took D.J.’s hand and placed it on his
          penis. D.J. testified that his penis was long, brown
          and erect. Next, [appellant] took his hands and
          placed them on the back of D.J.’s head and forced
          her head down and his penis into her mouth.
          [Appellant] thrusted his pelvis back-and-forth, stood
          up and ejaculated. As soon as it was over, D.J. got
          out of [appellant]’s office.

                The fourth time D.J. saw [appellant] at Central
          was in the hallway again. He called her over telling
          her that he wanted to talk and show her some list in
          his office. [Appellant] ushered D.J. into his office.
          Back in the office, [appellant] once again closed and
          locked the door.      [Appellant] grabbed D.J. from
          behind by putting his arms around her waist, rubbing
          his erect penis against her buttocks. He pulled up
          her religious overgarments, under which D.J. was
          wearing her underwear. [Appellant] bent her over
          his desk and penetrated her vagina from behind. It
          ended when [appellant] ejaculated inside of D.J.

                 The fifth time D.J. came into contact with
          [appellant] was when he pulled her out of one of her
          therapy groups.      Telling D.J. that he had some
          papers for her in his office regarding places for her to
          live since she was homeless, she went with him.
          Again [appellant] closed and locked his door. With
          D.J.’s back against the door, [appellant] leaned his
          body, from his chest down to his pelvis, up against
          her and was grinding on her. D.J. tried to push
          [appellant] away with her broken wrist while she




                                   -3-
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            tried to get out of the door.[2] [Appellant] put his
            hand on the back of D.J.’s head and pushed his penis
            into her mouth. Next, [appellant] bent D.J. over,
            pulled her underwear to the side and put his penis in
            her vagina where he ejaculated.

                 On October 27, 2011, D.J. ultimately told
            someone at Central what [appellant] did. The police
            were called and D.J. gave a statement.

Trial court opinion, 6/8/16 at 3-5 (citations to the transcript omitted).

       L.H. testified that she was also receiving services from Central,

including housing assistance.    (Notes of testimony, 3/23/15 at 80.)       Like

D.J., L.H. was also the victim of childhood sexual assault. (Id.) L.H. was

being treated for major depression. (Id. at 30-31, 79.)

       L.H. testified that in mid-July 2011, she was at Central for an

appointment when appellant approached her in the lobby.            (Id. at 86.)

Appellant informed her that the staff members with whom she had the

appointment were unavailable and directed her into his office.          (Id. at

86-87.) L.H. testified that appellant told her a woman her age was at her

“sexual peak” and “could handle him.”       (Id. at 91.)   Appellant pulled his

chair closer to hers and said, “touch it.” (Id. at 91-92.) L.H. looked down

and saw that appellant had pulled his erect penis out of his pants. (Id. at

92.)   L.H. described it as “very large, very long.”    (Id. at 95.)   Appellant




2
  D.J. testified that she had a broken left wrist and did not have full use of
her arm at that time. (Notes of testimony, 3/24/15 at 205.) She had a soft
cast on her arm. (Id.)


                                      -4-
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took her hand and placed it on his penis, making a rubbing motion. (Id. at

94.) L.H. testified that she was in shock and did not know what to do. (Id.)

     At this point, appellant stood up and shoved his penis into L.H.’s

mouth, telling her that, “he thought I could handle his penis.” (Id. at 95.)

Appellant shoved his penis down L.H.’s throat and she started gagging.

(Id.) Appellant put his hands on her shoulders and was thrusting his penis

in and out of her mouth, “in a manner similar to having intercourse.” (Id.)

Appellant finally ejaculated into L.H.’s mouth and wiped himself off with a

paper towel. (Id. at 96-97.) Appellant told L.H. not to tell anyone and that

“this is our secret.” (Id. at 97.) L.H. testified that she did not consent to

appellant shoving his penis into her mouth and that the office door was

locked. (Id. at 97-98.) L.H. testified that she did not tell anyone about the

incident because she was embarrassed and afraid no one would believe her.

(Id. at 98-99.)

     At the beginning of August 2011, L.H. returned to Central for another

appointment with a certified peer specialist. (Id. at 99.) Her appointment

was not with appellant.   (Id. at 100.)   Again, as she sat in the reception

area, appellant came out of his office, put his arm around L.H.’s shoulders

and walked her into his office, shutting the door and locking it.       (Id.)

However, in an attempt to stave off another assault, L.H. showed appellant

the bruises she had from her abusive boyfriend, and appellant took her to




                                    -5-
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see the certified peer specialists to try to find her a shelter to stay in that

night. (Id. at 100-101.)

      Later in August, L.H. returned to Central for an appointment with a

psychiatrist.   (Id. at 101.)      As L.H. waited in the lobby, appellant

approached her and told her to come into his office.       (Id. at 102.)   L.H.

informed appellant that she was waiting for her appointment with the

psychiatrist, Dr. Sierra. (Id.) Appellant then instructed the receptionist to

call his office when Dr. Sierra was available, that L.H. would be in his office.

(Id.) Appellant then took L.H. into his office, closed the door, and locked it.

(Id. at 102-103.)   Appellant put his hands on L.H.’s shoulders and forced

her down to the ground on her knees. (Id. at 106.) L.H. testified that it

hurt because she has degenerative arthritis in her right knee. (Id.)

      Appellant proceeded to unzip his pants, remove his erect penis, and

shove it down L.H.’s throat.     (Id. at 107.)     L.H. testified that she was

gagging and could not breathe. (Id.) While appellant was shoving his penis

down L.H.’s throat, he had both hands positioned on the back of her head.

(Id.) Again, L.H. testified that appellant was thrusting his pelvis as though

having intercourse. (Id. at 107-108.) L.H. was unable to move her head or

speak.   (Id. at 108.)     L.H. tried to push appellant away with her hand

against his leg, but was unsuccessful.           (Id.)   Eventually, appellant

ejaculated inside of L.H.’s mouth and wiped himself off with a towel. (Id. at

109.) At the same time, the phone rang and appellant answered it. (Id.)



                                     -6-
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The receptionist was calling to say that Dr. Sierra was ready to see L.H.

(Id.)    Appellant told L.H. that “this is our secret,” and not to tell anyone,

that he could lose his job.    (Id. at 110-111.)    Appellant gave L.H. some

water and a paper towel and escorted her out of his office.             (Id. at

109-110.)

        Later, L.H. returned to Central to seek alternative housing because of

her abusive relationship with her boyfriend.     (Id. at 112.)   Again, as she

waited in the reception area for her appointment, appellant came up to her

and put his arm around her and guided her into his office.        (Id. at 113.)

Appellant closed the office door and locked it.      (Id. at 114.)    Appellant

directed L.H. to sit in his chair.    (Id.)   L.H. testified that appellant was

touching her arms as he guided her into the chair. (Id. at 115.) Appellant

then unzipped his pants and pulled out his erect penis. (Id. at 114-115.)

Appellant shoved his penis into L.H.’s mouth while his hands were placed on

top of her shoulders.    (Id. at 115-116.)    At some point, he withdrew his

penis from her mouth, stood her up and turned her around, trying to

unbutton her jeans in the same motion.        (Id. at 116.)   L.H. realized that

appellant intended to have sexual intercourse with her, at which time she

pushed him away. (Id. at 117.) L.H. testified that somehow she was able

to get out of his office and she left.   (Id.) L.H. testified that she did not

consent to any of appellant’s actions, verbally or non-verbally.        (Id. at

118-119.)



                                      -7-
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       After this third assault, L.H. testified that she avoided going to Central

and kept canceling her appointments.        (Id. at 119.)    Eventually, two of

Central’s employees, Valarie O’Connor and Karleen Caparro, drove out to

L.H.’s house. (Id. at 120.)3     They took L.H. to a nearby diner where she

disclosed what appellant had done to her. (Notes of testimony, 3/23/15 at

121.) L.H explained that is why she had been canceling her appointments at

Central. (Id.)

       Like appellant’s two other victims, S.T. was also molested as a child.

(Notes of testimony, 3/25/15 at 15.) S.T. had been molested by her uncle

and her brother.      (Id.)   S.T. was seeking to become a certified peer

specialist, and a friend told her about the program at Central.       (Id. at 7,

11.)   Appellant gave S.T. an employment application to fill out, and she

returned to Central the following day with the completed application. (Id. at

11-12.)    While she was waiting at the front desk, appellant came out and

told S.T. to come into his office. (Id. at 12.) Once inside, appellant closed

the door. (Id. at 13.) Appellant questioned S.T. about her past, and S.T.

finally revealed that she had been sexually molested by her uncle and her

brother.   (Id. at 14-15.)    Appellant pressed S.T. for details.   (Id. at 16.)

S.T. said that she had been raped. (Id.) S.T. explained that when she was



3
  Caparro was a certified peer specialist, and O’Connor was the operations
coordinator. (Notes of testimony, 3/23/15 at 18; 3/24/15 at 71.) At time of
trial, O’Connor was the president and CEO of Central. (Notes of testimony,
3/24/15 at 70-71.)


                                      -8-
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five years old, she was playing with her dolls when her uncle pulled down

her pants and got on top of her.    (Id.)   Appellant responded, “That’s not

being raped. That’s being molested.” (Id.) Appellant volunteered that he

had also been molested by his aunt, a babysitter, and a cousin. (Id. at 15.)

     At that point, appellant stated, “Well, I can show you why I was

molested.” (Id. at 17.) Appellant rolled his chair around and exposed his

erect penis through the zipper of his pants. (Id. at 17-18.) Appellant told

S.T. to “touch it,” but she refused. (Id. at 19.) Appellant reached over and

locked the office door, and S.T. testified that she was thinking, “Oh, my God,

how am I going to get out of this?” (Id.) Appellant grabbed S.T.’s hand and

tried to get her to touch his penis.    (Id. at 20.)    S.T. testified that she

wanted to leave but the door was locked. (Id. at 19.) In an effort to get

appellant to stop, S.T. told him that they should go to a hotel.       (Id. at

19-21.)   S.T. figured that maybe if she said they could go to a hotel, he

would stop and let her leave. (Id. at 21.) Appellant replied, “That sounds

good,” and put his penis back in his pants.     (Id.)   When she got home,

appellant called her and asked when they were going to the hotel. (Id. at

22.) S.T. responded that she was married and asked appellant what he was

doing. (Id.) S.T. reported the incident to a manager at Central and later

contacted authorities.   (Id. at 26.)   Eventually, appellant was fired from

Central as a result of his sexual misconduct. (Notes of testimony, 3/24/15

at 91.)   None of the three victims, S.T., D.J., and L.H., knew each other



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prior to these incidents. (Notes of testimony, 3/23/15 at 123-124; 3/24/15

at 214; 3/25/15 at 30-31.)

      All three cases were joined for trial; appellant’s pre-trial motion to

sever was denied. Following a five-day jury trial, appellant was found guilty

of one count of rape by forcible compulsion, two counts of involuntary

deviate sexual intercourse (“IDSI”) by forcible compulsion, two counts of

sexual assault, two counts of indecent assault, and one count of criminal

attempt to commit indecent assault.4 On March 2, 2016, appellant received

an aggregate sentence of 25 to 62 years’ incarceration. This timely appeal

followed. Appellant has complied with Pa.R.A.P. 1925(b), and the trial court

has filed a Rule 1925(a) opinion.

      Appellant has raised the following issues for this court’s review:

            I.     Was the evidence sufficient to sustain
                   appellant’s convictions for rape by forcible
                   compulsion     and     [IDSI]    where     the
                   Commonwealth’s evidence failed to establish
                   that appellant used physical force, the threat
                   of physical force or psychological coercion
                   while committing the alleged acts of sexual
                   intercourse?

            II.    Did the trial court err in failing to permit
                   appellant to cross-examine complainant [L.H.]
                   about the fact that she had previously filed a
                   lawsuit against a psychologist for engaging in
                   inappropriate sexual behavior with her?

            III.   Did the trial court violate appellant’s right of
                   confrontation when it prevented his attorney

4
  18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(1), and 901(a),
respectively.


                                     - 10 -
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                   from cross-examining [D.J.] after she testified
                   at appellant’s sentencing hearing?

            IV.    Did the trial court err in denying appellant’s
                   pre-trial motion to sever the cases against him
                   involving three separate complainants?

Appellant’s brief at 5 (capitalization deleted).

      In his first issue on appeal, appellant argues that the evidence was

insufficient to prove the element of forcible compulsion.5 Appellant argues

that he did not use physical force or psychological coercion to compel his

victims to engage in sexual activity. We disagree.

      The Crimes Code defines rape, in relevant part, as follows:

            (a)    Offense defined.--A person commits a felony
                   of the first degree when the person engages in
                   sexual intercourse with a complainant:

                   (1)   By forcible compulsion.

                   (2)   By threat of forcible compulsion
                         that would prevent resistance by a
                         person of reasonable resolution.

18 Pa.C.S.A. § 3121(a).

            In reviewing sufficiency of evidence claims, we must
            determine whether the evidence admitted at trial,

5
   In his Rule 1925(b) statement, appellant limited his argument to the rape
conviction.    (Rule 1925(b) statement, 5/4/16 at 1 ¶1; docket #53.)
Therefore, appellant’s argument that the evidence was also insufficient to
prove IDSI is waived on appeal.       Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.Super. 2009), appeal
denied, 990 A.2d 729 (Pa. 2010) (“to preserve their claims for appellate
review, [a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
[Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be
deemed waived.” (citations omitted)).


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              and all reasonable inferences drawn therefrom, when
              viewed in the light most favorable to the verdict
              winner, are sufficient to support all the elements of
              the offense. Commonwealth v. Bullick, 830 A.2d
              998, 1000 (Pa.Super. 2003). Additionally, to sustain
              a conviction, the facts and circumstances which the
              Commonwealth must prove, must be such that every
              essential element of the crime is established beyond
              a reasonable doubt. Commonwealth v. Hargrave,
              745 A.2d 20, 22 (Pa.Super. 2000), appeal denied,
              563 Pa. 683, 760 A.2d 851 (2000). Admittedly, guilt
              must be based on facts and conditions proved, and
              not on suspicion or surmise. Commonwealth v.
              Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173
              (1994). However, entirely circumstantial evidence is
              sufficient so long as the combination of the evidence
              links the accused to the crime beyond a reasonable
              doubt.     See id.; see also Commonwealth v.
              Chmiel, 536 Pa. 244, 247, 639 A.2d 9, 11 (1994).

Commonwealth v. Eckrote, 12 A.3d 383, 385-386 (Pa.Super. 2010).

              Any doubts regarding a defendant’s guilt may be
              resolved by the fact-finder unless the evidence is so
              weak and inconclusive that as a matter of law no
              probability of fact may be drawn from the combined
              circumstances. See Commonwealth v. DiStefano,
              782 A.2d 574, 582 (Pa.Super. 2001), appeal
              denied, 569 Pa. 716, 806 A.2d 858 (2002). The
              fact finder is free to believe all, part, or none of the
              evidence presented at trial. See Commonwealth
              v. Nicotra, 425 Pa.Super. 600, 625 A.2d 1259, 1261
              (1993).

Id. at 386.

              It is well-established that in order to prove the
              “forcible      compulsion”      component,          the
              Commonwealth must establish, beyond a reasonable
              doubt, that the defendant “used either physical
              force, a threat of physical force, or psychological
              coercion, since the mere showing of a lack of consent
              does not support a conviction for rape . . . by forcible
              compulsion.” Commonwealth v. Brown, 556 Pa.


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              131, 136, 727 A.2d 541, 544 (1999).                  In
              Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d
              1217 (1986), our Supreme Court stated that forcible
              compulsion includes “not only physical force or
              violence, but also moral, psychological or intellectual
              force used to compel a person to engage in sexual
              intercourse against that person’s will.” Rhodes, 510
              Pa. at 555, 510 A.2d at 1226. Further, the degree of
              force required to constitute rape is relative and
              depends on the facts and particular circumstances of
              a given case. Commonwealth v. Ruppert, 397
              Pa.Super. 132, 579 A.2d 966, 968 (1990), appeal
              denied, 527 Pa. 593, 588 A.2d 914 (1991). See
              Pennsylvania Benchbook on Crimes of Sexual
              Violence, Ch. 2, pg. 27 (2d Edition 2009).

Id. at 387.

              Whether a defendant did or did not resort to forcible
              compulsion [§ 3121(1)] or the threat of forcible
              compulsion sufficient to prevent resistance by a
              person of reasonable resolution [§ 3121(2)] is a
              determination to be made in each case based upon
              the totality of the circumstances.

                    Significant factors to be weighed in that
                    determination      would    include   the
                    respective ages of the victim and the
                    accused, the respective mental and
                    physical conditions of the victim and the
                    accused, the atmosphere and physical
                    setting in which the incident was alleged
                    to have taken place, the extent to which
                    the accused may have been in a position
                    of authority, domination or custodial
                    control over the victim, and whether the
                    victim was under duress. This list of
                    possible factors is by no means
                    exclusive.

Commonwealth v. Titus, 556 A.2d 425, 427 (Pa.Super. 1989), quoting

Rhodes, 510 A.2d at 1226.



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      The charge of rape by forcible compulsion related to the allegations

involving D.J.   (Criminal Information, 2/11/13 at 1; docket #3.)          As

described above, D.J. testified that on each of the four separate occasions

that she was assaulted by appellant, he locked the door to his office. (Notes

of testimony, 3/24/15 at 178, 182, 193, 202.) During the second incident,

appellant grabbed D.J.’s hand and placed it on his penis. (Id. at 187.) He

also had both hands on the back of her head as he forced his penis into her

mouth. (Id. at 188.)

      During the third incident, appellant pulled up D.J.’s overgarments,

bent her over the desk, and entered her from behind. (Id. at 194.) D.J.

testified that it was painful.   (Id. at 196.)   During the fourth and final

assault, D.J. testified that appellant was grinding against her while her back

was to the office door. (Id. at 202.) D.J. testified that part of the door was

sticking into her back and it hurt. (Id. at 203.) D.J. tried to push him away,

but was unable to because she had a broken wrist and did not have her full

strength.   (Id. at 205.)   Appellant then proceeded to force his penis into

D.J.’s mouth before penetrating her vaginally from behind.      (Id. at 208-

209.) Therefore, appellant’s argument that he did not use any physical force

is not supported by the testimony.

      Furthermore, the jury could reasonably find that appellant used

psychological force to compel D.J. to engage in sexual intercourse. As the

trial court observed, D.J. was an emotionally vulnerable woman with a



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history of childhood sexual abuse.       (Trial court opinion, 6/8/16 at 8.)

Appellant knew that D.J. had been sexually abused as a child from age five

until age twelve.     (Notes of testimony, 3/24/15 at 173.)      D.J. was also

unemployed and looking for work. (Id. at 171.) Appellant told D.J. that she

had potential and that he was going to get her a job and help get her life

back together. (Id. at 173.) D.J. described appellant as charismatic. (Id.)

Appellant would lure her into his office with promises to help improve her

resume or find her suitable housing. (Id. at 174-175, 201.)

        Ultimately, appellant used his position of trust and authority to take

advantage of the weak and fragile victim. Appellant was supposed to help

D.J., and instead he repeatedly sexually assaulted her.      D.J. testified that

she never went to Central for the purpose of meeting with appellant. (Id. at

180.)      All of her appointments were with other people.    (Id.)   Appellant

would find her in the lobby or in the hallway and take her into his office,

close and lock the door, and then sexually assault her.      (Id. at 174-175,

181, 192.)       The fourth time, appellant actually pulled her out of her

“rape group,” ostensibly to show her some papers related to finding a place

to live.    (Id. at 200-201.)   Appellant then proceeded to rape the victim

orally and vaginally. (Id. at 208-209.) D.J. testified that she said “no” and

tried to escape and push him away, to no avail.       (Id. at 204-206.)     D.J.

testified that she “felt really stupid” and wanted to kill herself. (Id. at 207,

209.) This was sufficient for the jury to conclude that appellant used both



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physical and psychological coercion to force the victim, D.J., to engage in

sexual intercourse. Appellant’s sufficiency claim fails.

      Next, appellant complains that he should have been permitted to

question L.H. about an alleged prior lawsuit she filed against a psychologist

for inappropriate sexual contact which resulted in a settlement.    Appellant

claims that the fact L.H. filed a prior lawsuit on similar grounds went to

improper motive and credibility. The trial court denied permission to pursue

this line of questioning as appellant failed to comply with the procedural

requirements of the Rape Shield Law.            Furthermore, the trial court

determined that the matter was irrelevant. (Notes of testimony, 3/24/15 at

44-47.)

      Pennsylvania’s Rape Shield Law, 18 Pa.C.S.A. § 3104, provides 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.

            (b)   Evidentiary proceedings.--A defendant who
                  proposes to offer evidence of the alleged
                  victim’s past sexual conduct pursuant to
                  subsection (a) shall file a written motion and
                  offer of proof at the time of trial. If, at the
                  time of trial, the court determines that the


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                 motion and offer of proof are sufficient on their
                 faces, the court shall order an in camera
                 hearing and shall make findings on the record
                 as to the relevance and admissibility of the
                 proposed evidence pursuant to the standards
                 set forth in subsection (a).

18 Pa.C.S.A. § 3104.

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

                 A trial court’s ruling on the admissibility
                 of evidence of the sexual history of a
                 sexual abuse complainant will be
                 reversed only where there has been a
                 clear abuse of discretion. ‘An abuse of
                 discretion is not merely an error of
                 judgment, but if in reaching a conclusion
                 the law is overridden or misapplied or
                 the judgment exercised is manifestly
                 unreasonable, or the result of partiality,
                 prejudice, bias, or ill will, as shown by
                 the evidence or the record, discretion is
                 abused.’

           Commonwealth v. Allburn, 721 A.2d 363, 366
           (Pa.Super. 1998), appeal denied, 559 Pa. 662, 739
           A.2d 163 (1999) (citations omitted), quoting
           Commonwealth v. Spiewak, 533 Pa. 1, 7, 617
           A.2d 696, 699 (1992).

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

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

           The purpose of the Rape Shield Law is to prevent a
           trial from shifting its focus from the culpability of the
           accused toward the virtue and chastity of the victim.
           Allburn, 721 A.2d at 366-367. The Rape Shield Law
           is intended to exclude irrelevant and abusive
           inquiries regarding prior sexual conduct of sexual
           assault complainants.        See Commonwealth v.



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J. S25040/17


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

Id. (footnote omitted).

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

Burns, 988 A.2d at 690.

      If, as the trial court found, the proposed evidence that L.H. had filed a

previous lawsuit against a mental health professional claiming sexual assault

implicated the Rape Shield Law, then the issue was waived for counsel’s

failure to file a written motion and offer of proof prior to trial. Burns, 988

A.2d at 690 (“We have repeatedly stated that a defendant who desires to

introduce evidence of the victim’s prior sexual conduct must file a written

motion and make a specific offer of proof prior to trial.” (citations omitted)).

Appellant did not raise the issue until the second day of trial, during his

cross-examination of L.H. (Notes of testimony, 3/24/15 at 44.)




                                     - 18 -
J. S25040/17


      Appellant argues that the proffered evidence goes to bias and

improper motive. According to appellant, it demonstrates a pattern of suing

mental health professionals alleging inappropriate sexual conduct for

financial gain.     (Id.)   The Rape Shield Law may not be used to exclude

relevant evidence showing a witness’ bias, motive to fabricate, or attacking

credibility. In addition, there is authority for the proposition that evidence

that the victim was subject to a previous sexual assault does not reflect

upon the victim’s reputation for virtue or chastity and is not the victim’s own

conduct,      and   therefore,   the   Rape     Shield   Law   does   not   apply.

Commonwealth v. Holder, 815 A.2d 1115, 1118 (Pa.Super. 2003),

appeal denied, 827 A.2d 430 (Pa. 2003); Commonwealth v. Johnson,

638 A.2d 940 (Pa. 1994).         Whether L.H. was a plaintiff in a prior lawsuit

alleging sexual assault does not call her chastity into question.

      That does not end the inquiry, however, because the trial court also

excluded the evidence on the basis that it was a collateral issue and

irrelevant.    (See trial court opinion, 6/8/16 at 12 (“. . . [L.H.]’s previous

lawsuit claiming sexual assault against a mental health professional, i.e., a

past accusation[] against a third part[y] is collateral; it does not bear on the

ultimate question, which was whether [appellant] sexually assaulted the

victim.”).) On this point, we agree. Even if L.H. had filed a previous lawsuit

against another mental health professional alleging sexual misconduct, it

would not make it more or less likely that appellant committed the offenses



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J. S25040/17


charged.   See Holder, 815 A.2d at 1119-1120 (evidence was properly

excluded as irrelevant and collateral because a previous allegation that a

third party sexually assaulted the victim did not bear directly on whether or

not appellant did); Pa.R.E. 402.     The issue, therefore, was collateral; and

L.H. could not be impeached with it. Id. at 1120.6

      Next, appellant complains that he was not permitted to cross-examine

D.J. at sentencing.      Appellant argues that this was in violation of his

constitutional right of confrontation. We disagree.

      The Crime Victims Act, 18 P.S. § 11.101 et seq., gives victims of

crime the right to submit an oral and/or written victim impact statement at

sentencing:

              Victims of crime have the following rights:

                    To have opportunity to offer prior
                    comment on the sentencing of a
                    defendant or the disposition of a
                    delinquent     child,  to   include   the
                    submission of a written and oral victim
                    impact statement detailing the physical,
                    psychological and economic effects of the
                    crime on the victim and the victim’s
                    family. The written statement shall be
                    included    in   any   predisposition  or
                    presentence report submitted to the
                    court. Victim-impact statements shall be
                    considered by a court when determining
                    the disposition of a juvenile or sentence
                    of an adult.


6
  There was testimony at trial that L.H. had filed a civil lawsuit against
Central and appellant and that the matter settled out of court. (Notes of
testimony, 3/23/15 at 81-82; 3/24/15 at 42-43.)


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J. S25040/17


18 P.S. § 11.201(5).

      At sentencing, D.J. read a prepared statement into the record. (Notes

of testimony, 3/2/16 at 34-37.)     The Commonwealth did not ask D.J. any

questions. (Id.) The trial court indicated that if the Commonwealth asked

D.J. any questions, appellant would be permitted to cross-examine. (Id. at

34.) However, since D.J. simply read from her written statement, the trial

court denied appellant’s request to examine the witness. (Id. at 37-38.)

      Appellant has cited no authority for the proposition that when a victim

of a crime chooses to read a prepared victim impact statement into the

record at the defendant’s sentencing and is not asked any questions by the

Commonwealth, the defendant has a right to examine the victim, nor is this

court aware of any.    As the trial court remarked, D.J. could have simply

submitted her victim impact statement in writing, and there would be no

opportunity for cross-examination under such circumstances.            (Trial court

opinion, 6/8/16 at 12.) This claim fails.7

      Finally, appellant contends that the trial court abused its discretion in

denying his motion to sever the offenses.

            Whether to join or sever offenses for trial is within
            the trial court’s discretion and will not be reversed on
            appeal absent a manifest abuse thereof, or prejudice

7
  At any rate, it appears that appellant wanted to question D.J. about her
statement that she now has a criminal record. (Notes of testimony, 3/2/16
at 36.) Appellant claimed that this statement “opened up the door” to
questioning. (Id. at 37-38.) The Commonwealth then stipulated to the fact
that D.J. was on probation for retail theft and possession of a controlled
substance. (Id. at 38.)


                                     - 21 -
J. S25040/17


          and    clear    injustice to  the    defendant.
          Commonwealth v. Newman, 528 Pa. 393, 598
          A.2d 275, 277 (Pa. 1991). The Rules of Criminal
          Procedure provide:

          Joinder-Trial of Separate Indictments of Informations

          (A)   Standards

                (1)   Offenses charged in separate
                      indictments or informations may be
                      tried together if:

                      (a)   the evidence of each of
                            the offenses would be
                            admissible in a separate
                            trial for the other and is
                            capable of separation by
                            the jury so that there is
                            no danger of confusion;
                            or

                      (b)   the offenses charged are
                            based on the same act
                            or transaction.

          Pa.R.Crim.P. 582(A)(1)(a)-(b).

Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa. 2010).

          The Pennsylvania Rules of Criminal Procedure
          provide that distinct offenses which do not arise out
          of the same act or transaction may be tried together
          if the evidence of each of the offenses would be
          admissible in a separate trial for the other and is
          capable of separation by the jury so that there is no
          danger of confusion.      Pa.R.Crim.P. 582(A)(1)(a).
          While evidence concerning distinct crimes is
          inadmissible solely to demonstrate a defendant’s bad
          character or his propensity to commit crimes, that
          evidence will be permitted to establish the identity of
          the perpetrator where proof of one crime tends to
          prove the others. Commonwealth v. Cousar, 593
          Pa. 204, 225, 928 A.2d 1025, 1037 (2007).


                                  - 22 -
J. S25040/17



Commonwealth v. Stiles, 143 A.3d 968, 975-976 (Pa.Super. 2016),

appeal denied,         A.3d     , 2016 WL 7106404 (Pa. 2016) (footnote

omitted).

            Evidence of distinct crimes is inadmissible solely to
            demonstrate a defendant’s criminal tendencies.
            Such evidence is admissible, however, to show a
            common plan, scheme or design embracing
            commission of multiple crimes, or to establish the
            identity of the perpetrator, so long as proof of one
            crime tends to prove the others. This will be true
            when there are shared similarities in the details of
            each crime.

Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa.Super. 2006),

appeal denied, 926 A.2d 972 (Pa. 2007), quoting Commonwealth v.

Keaton, 729 A.2d 529, 537 (Pa. 1999) (internal citations omitted).       “The

following factors should be considered in establishing similarity: the elapsed

time between the crimes; the geographical proximity of the crime scenes;

and the manner in which the crimes were committed.” Commonwealth v.

Judd, 897 A.2d 1224, 1232 (Pa.Super. 2006), appeal denied, 912 A.2d

1291 (Pa. 2006) (citations omitted) (bullets omitted).

            In [Commonwealth v.] Newman[, 598 A.2d 275
            (Pa. 1991)], the Pennsylvania Supreme Court held
            that consolidation was proper where: 1) both rapes
            occurred in the x-ray department; 2) each occurred
            late at night when appellee was the only technician
            on duty; 3) both victims were females suffering from
            head injuries; 4) both victims were half the size of
            appellee; 5) appellee began kissing the victims,
            hugging the victims, and fondling the victims’
            breasts before climbing onto the examination table
            and raping them. Newman, 598 A.2d at 278.


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Commonwealth v. Smith, 47 A.3d 862, 867 (Pa.Super. 2012), appeal

denied, 60 A.3d 536 (Pa. 2012). Similarly, in Smith, this court determined

that the details of the two assaults were substantially similar, warranting

consolidation, where, inter alia: both victims were 12-years-old at the time

of the crime; they were both of Hispanic race; they both had a close

personal relationship with the defendant; both victims were assaulted in

their residence; both victims reported the assaults             involved vaginal

penetration; and both assaults occurred in a two-month time period. Id. at

868-869.    This court also found that the evidence of each offense was

capable of separation by the jury so that there was no danger of confusion

and that the defendant was not unduly prejudiced by consolidation. Id. at

869.

       In the case sub judice, there were numerous and substantial

similarities between all three cases.    All three female victims experienced

childhood sexual abuse and other trauma, which appellant exploited for his

own sexual gratification. The offenses all occurred over a three-month time

period in appellant’s office at Central.      Two of the victims, L.H. and D.J.,

were   seeking   assistance   at   Central    with   mental   health   issues   and

housing/employment. The third victim, S.T., was applying for a position as

a certified peer specialist at Central. There was evidence that appellant used

his position of trust and authority as a peer specialist team leader to exploit




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J. S25040/17


these women sexually.      Furthermore, his conduct progressed over time,

from exposing himself, to oral sex, to vaginal intercourse.

      As in Smith, appellant points out some relatively minor differences,

e.g., that S.T. and D.J. were African-American, while L.H. was Caucasian.

(Appellant’s brief at 38.) The victims’ ages ranged from 34-years-old (D.J.)

to 51-years-old (L.H.).   (Id.)   L.H. and D.J. were clients of Central, while

S.T. was applying to work as a counselor at the facility. (Id.) Appellant also

argues that only D.J. alleged that appellant engaged in both oral and vaginal

intercourse with her, and S.T. testified that appellant only asked her to

touch his exposed penis. (Id. at 39.) Appellant’s conduct varied with each

victim.

      The defendant in Smith similarly relied on such relatively minor

distinctions, and this court rejected the argument, stating, “We find that the

similarities between the [] assaults substantially outweigh their slight

differences, and that those similarities adequately support the trial court’s

consolidation of the two cases.” Smith, 47 A.3d at 869. In the same vein,

in this case, we agree with the trial court that the many similarities among

the three cases, including location (at Central, in appellant’s office), time (a

three-month time span), conduct (exposing his penis through the zipper of

his pants), and the diminished capacity of the victims (history of childhood

sexual abuse), made consolidation of the three cases appropriate.




                                     - 25 -
J. S25040/17


      The evidence of each of the offenses would be admissible in a separate

trial for the other, to establish appellant’s identity and also as proof of a

common plan, scheme, or design. (Trial court opinion, 6/8/16 at 17.) In

addition, the evidence was capable of separation by the jury so that there

was no danger of confusion, and the probative value of the evidence

outweighed its prejudicial effect.    (Id.)    The trial court did not abuse its

discretion in consolidating the matters for trial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




                                      - 26 -
