J-S29025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

ALLEN NEAL

                            Appellant                    No. 2462 EDA 2016


           Appeal from the Judgment of Sentence dated July 11, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000225-2015

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                          FILED SEPTEMBER 11, 2017

        Appellant Allen Neal appeals from the judgment of sentence imposed

after he was convicted of two counts of indecent assault.1 We affirm in part,

vacate in part, and remand for imposition of a twenty-five year registration

requirement under the Sex Offender Registration and Notification Act, 42

Pa.C.S. §§ 9799.10–9799.41 (SORNA).

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

           [Appellant] and the victim, Karina Zelaya-Betancourt, had
        been best friends for approximately six or seven years prior to
        this incident, which occurred in the early morning hours on
        December 14, 2014. Following a night out, [Appellant], the
        victim, and several friends went to the victim’s apartment to
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 3126(a)(1) (without complainant’s consent) and (a)(4)
(unconscious complainant).
J-S29025-17


        continue the party. As the party died down, most of the guests
        left until only [Appellant], the victim, and the victim’s friend,
        Amanda Belen, remained. The victim went to sleep in her
        daughter’s bedroom[2] because Ms. Belen had already gone to
        sleep in her room. [Appellant], after checking in on the victim,
        went to sleep on the living room couch.

           At approximately 8:00 a.m., the victim was awoken by a
        “pain anally and I saw [Appellant] over me and I just told him to
        get off of me.” She testified that she had been sleeping on her
        stomach and that her pajama pants and underwear had been
        pulled down. [Appellant] was mostly clothed but the victim “saw
        him like tuck himself back in before he got off of me” and
        “walked to the living room.” On cross-examination, the victim
        conceded that she did not actually see [Appellant]’s penis.

           Following the assault, the victim felt wetness on her buttocks
        area. She went into the bathroom, wiped the area with baby
        wipes, and discovered that she was bleeding from her anus.
        Some of the bloody wipes were flushed down the toilet, but
        several others were thrown into the trashcan. . . .

           After wiping herself off, the victim went into her bedroom,
        where Amanda Belen had been sleeping until she was awoken
        after hearing the victim yell at [Appellant]. The victim then
        called another friend, who lived close by and had been present
        the night before, to escort [Appellant] out of the apartment.
        [Appellant] complied without incident.

           Subsequently, the victim was taken to Pocono Medical Center
        and the police were called. At the hospital, the victim was
        examined by Rose Reyes, R.N., a Sexual Assault Nurse Examiner
        (SANE).    During the examination, the victim provided a
        statement to Nurse Reyes and Detective Robert Miller of the
        Pocono Mountain Regional Police Department (PMRPD).

           Nurse Reyes, who qualified as an expert SANE nurse, testified
        that, at the beginning of the examination, the victim was crying
        and recounted the facts summarized above.            During the
        interview portion of the examination, the victim completed a
____________________________________________
2
    The victim’s daughter was not in the apartment that night.



                                           -2-
J-S29025-17


        questionnaire, which asked various questions, including one
        central to this appeal: whether the victim had consensual sex in
        the previous five days.      On the questionnaire, the victim
        responded that she had not. . . .

           During her physical examination of the victim, Nurse Reyes
        discovered “tearing in the anal area. It was mostly toward the 5
        and 8 o’clock area. There was tiny little skin tears with a little
        tiny bit of bleeding more so to the 5:00 and 6:00 area.” Nurse
        Reyes opined that these tears were consistent with trauma.
        Nurse Reyes took swabs of the victim’s mouth, anus, and
        vagina, which were provided to the police.

Trial Ct. Op., 10/5/16, at 2-4 (citations to the record omitted).

        Appellant was arrested and taken to police headquarters, where, after

being given Miranda3 warnings, he provided a recorded interview. After the

interview, police went to Ms. Zelaya-Betancourt’s apartment and collected

evidence, including the bloody wipes in the trashcan. The evidence gathered

by Nurse Reyes and the police, together with a DNA swab from Appellant,

was sent to the Pennsylvania State Police Crime Lab for testing and analysis.

Trial Ct. Op. at 4.

        Appellant was charged with rape of an unconscious victim, involuntary

deviate sexual intercourse, sexual assault, two counts of aggravated

indecent assault, and two counts of indecent assault. A jury was selected on

April 5, 2016, and the evidentiary portion of Appellant’s trial began on

April 18, 2016.     Trial Ct. Op. at 2.        Prior to the evidentiary portion of the

trial, the Commonwealth gave notice of its intent to play the recorded
____________________________________________
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -3-
J-S29025-17


interview Appellant had given to the police. Citing the Rape Shield Law, 18

Pa.C.S. § 3104,4 the Commonwealth sought to redact references Appellant

had made during the interview to Ms. Zelaya-Betancourt’s alleged sexual

encounter with another male the night before the incident in this case.

Appellant objected to the redaction, and the court reserved ruling on the

issue until more context was provided as the trial progressed. Trial Ct. Op.

at 5.

        Ms. Zelaya-Betancourt testified and was cross-examined about the

statement she gave at the hospital; she confirmed that she had checked a

box to indicate that she had not had consensual sex in the five days

preceding the incident.        Trial Ct. Op. at 3-4.   The Commonwealth’s DNA

expert later testified that the DNA of three individuals – Appellant, Ms.

Zelaya-Betancourt, and an unidentified person – was present on the wipes.

Further, analysis of Ms. Zelaya-Betancourt’s rectal swab did not reveal

Appellant’s DNA but did reveal male DNA that was not Appellant’s. Id. at 4-

5.

        At the end of the first day of testimony, the trial court addressed

whether Appellant’s allegation that Ms. Zelaya-Betancourt had sex with

another man the night before the incident should be redacted from

Appellant’s statement to the police. Appellant argued that the inconsistency
____________________________________________
4
  As discussed in greater detail later in this memorandum, the Rape Shield
Law places limits on the admissibility of evidence regarding past sexual
conduct of a sexual assault victim.


                                           -4-
J-S29025-17


between Ms. Zelaya-Betancourt’s assertion that she had not had sex in the

five days preceding the incident and the DNA expert’s testimony regarding

the presence of a third person’s DNA created an issue as to Ms. Zelaya-

Betancourt’s credibility.   Trial Ct. Op. at 6.   Appellant contended that this

credibility issue allowed him to introduce the portion of his statement about

Ms.   Zelaya-Betancourt’s    prior   sexual   encounter,   notwithstanding   the

prohibition in the Rape Shield Law. The trial court did not make a ruling at

that time, and requested that the parties conduct additional research on the

issue. The next morning, Appellant withdrew his objection to the redaction.

The redacted version of the interview was played for the jury.

      After the Commonwealth rested, Appellant called Arthur Young as a

DNA expert. As the trial court explained:

      In large measure, Mr. Young agreed with the police analysts,
      including their conclusion that the bloody wipes most likely
      contained the DNA of [Appellant], the victim, and an unknown
      person. Mr. Young also agreed that the DNA analysis of the
      rectal swab revealed the presence of male DNA that was not
      contributed by [Appellant].

Trial Ct. Op. at 6-7 (citations to the record omitted).

      Appellant then stated he would be recalling Ms. Zelaya-Betancourt,

and the court held a sidebar.        The Commonwealth asked for an offer of

proof. Appellant responded that due to testimony regarding the DNA of a

third person and Ms. Zelaya-Betancourt’s statement that she had not had

sex in the five days preceding the incident, “the credibility of a witness is

now in play.” N.T., 4/19/16, at 157. Appellant sought to ask Ms. Zelaya-

                                       -5-
J-S29025-17


Betancourt why the DNA of a third person was found on the rectal swab. Id.

at 156.   The Commonwealth responded that Ms. Zelaya-Betancourt had

already been asked whether she had sex in the five days preceding the

incident; the presence of a third person’s DNA did not mean that Ms. Zelaya-

Betancourt had sex with the third person; Appellant’s proposed line of

questioning was prohibited by the substance of the Rape Shield Law; and

Appellant failed to comply with the procedural requirements of the Rape

Shield Law. Id. at 157-58.

     The trial court ruled that Appellant could not ask Ms. Zelaya-

Betancourt about having sex with anyone else, but could call Ms. Zelaya-

Betancourt to testify regarding matters not covered by the Rape Shield Law.

The court reasoned that (1) Appellant had not satisfied the procedural

requirements of the Rape Shield Law by filing a timely written motion; and

(2) credibility as a general concept did not trump the Rape Shield Law. N.T.,

4/19/16, at 159-60.      After the trial court announced its ruling, Appellant

decided not to call Ms. Zelaya-Betancourt.

     On April 20, 2016, the jury found Appellant guilty of two counts of

indecent assault. The jury found Appellant not guilty of all other charges.

On July 11, 2016, the trial court imposed a sentence of twelve to sixty

months’ incarceration.    Appellant was classified as a Tier III sex offender

under Section 9799.14(d)(16) of SORNA, which meant that he would be

subject to a lifetime registration requirement.      Section 9799.14(d)(16)


                                     -6-
J-S29025-17


provides for a Tier III classification if an offender has had “[t]wo or more

convictions of offenses listed as Tier I or Tier II sexual offenses.” 42 Pa.C.S.

§ 9799.14(d)(16).       On August 4, 2016, Appellant filed a timely notice of

appeal.

         In this appeal, Appellant raises the following issues, as stated in his

brief:

         Does a trial court abuse its discretion under the 6th Amendment
         confrontation clause of [the] United States Constitution where
         [the] victim claims sexual assault of her rectum by [Appellant]
         and [a] rectal swab of [the] victim shows the presence of a male
         contributor not that of [A]ppellant and [A]ppellant wishes to
         question [the] victim as to her credibility and possible motive for
         bias?

         Whether [Appellant] is subject to Tier III lifetime Megan’s Law[5]
         Registration.

Appellant’s Brief at 5.

                        Appellant’s Confrontation Claim

         Appellant first claims that the trial court abused its discretion by

precluding him from questioning Ms. Zelaya-Betancourt regarding the

alleged inconsistency between her statement that she had not had

consensual sex in the five days preceding the incident and the presence of

another person’s DNA on her rectal swab. Appellant contends that this line

of questioning related to Ms. Zelaya-Betancourt’s credibility and was not

precluded under the Rape Shield Law.
____________________________________________
5
  “Megan’s Law was the predecessor statute to SORNA.” Commonwealth
v. Evans, 138 A.3d 28, 30 n.3 (Pa. Super. 2016).


                                           -7-
J-S29025-17


     In Commonwealth v. Burns, we stated:

     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.

988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citations and quotation

marks omitted), appeal denied, 8 A.3d 341 (Pa. 2010).              Whether a

defendant has been denied the right to confront a witness under the

Confrontation Clause is a question of law which we review de novo.          See

Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013), cert. denied, 134

S. Ct. 2662 (2014).

     The trial court denied Appellant’s request to question Ms. Zelaya-

Betancourt in light of the Rape Shield Law, which provides:

     § 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.

     (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 motion and offer of proof are sufficient on
     their faces, the court shall order an in camera hearing and shall

                                    -8-
J-S29025-17


      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. § 3104. This Court has explained:

          The purpose of the Rape Shield Law is to prevent a trial from
      shifting its focus from the culpability of the accused toward the
      virtue and chastity of the victim. The Rape Shield Law is
      intended to exclude irrelevant and abusive inquiries regarding
      prior sexual conduct of sexual assault complainants.

Burns, 988 A.2d at 689 (footnote and citations omitted).

      With regard to the procedural requirements of the Rape Shield Law,

“[w]e 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.    We will presume that the

legislature intended ‘shall’ to be mandatory in the statute at hand.” Burns,

988 A.2d at 690-91 (citations omitted).

      Substantively, “the Rape Shield law will bow to a defendant’s right to

confront and cross-examine when a specific proffer demonstrates that the

proposed inquiry is intended to elicit relevant evidence, which is more

probative than prejudicial, and which is not cumulative of other evidence

available   without   encroaching   upon   Rape   Shield   Law   protections.”

Commonwealth v. Nieves, 582 A.2d 341, 347 (Pa. Super. 1990), appeal

denied, 600 A.2d 952 (Pa. 1991).      “If the offer of proof shows only that

others in addition to the defendant had sexual contact with the victim, but

does not show how the evidence would exonerate the defendant, evidence of


                                    -9-
J-S29025-17


prior   sexual   activity   is   inadmissible    under   the   Rape   Shield   Law.”

Commonwealth v. Fink, 791 A.2d 1235, 1242-43 (Pa. Super. 2002)

(citations omitted).

        After careful review of the parties’ briefs, the record, and the opinion

by the Honorable Jonathan Mark, we conclude that Appellant’s first issue

merits no relief.    The trial court’s opinion comprehensively discusses and

properly disposes of this issue. See Trial Ct. Op. at 12-15 (explaining (1)

Appellant failed to comply with the procedural requirements of the Rape

Shield Law; (2) “the evidence [Appellant] sought to introduce to address

credibility was heard by the jury, albeit without reference to the alleged

sexual encounter with a man the night before, through the testimony of the

victim and the reports and testimony of the experts”; and (3) Appellant’s

general credibility argument was insufficient to trump the Rape Shield Law).

With respect to Appellant’s claim that he was denied his constitutional right

to confront Ms. Zelaya-Betancourt through cross-examination, we note that

the trial court did not preclude Appellant from recalling Ms. Zelaya-

Betancourt as a witness. Rather, the court merely applied the Rape Shield

Law’s restrictions on the admissibility of evidence of past sexual conduct in

limiting the questions that Appellant could ask if he questioned Ms. Zelaya-

Betancourt; Appellant was free to confront Ms. Zelaya-Betancourt through

other areas of questioning, but elected not to do so once the trial court

made clear that his questioning had to conform to the Rape Shield Law’s


                                        - 10 -
J-S29025-17


requirements. Enforcement of rules regarding the admissibility of evidence

is not a violation of the constitutional right to confront witnesses.       See

Commonwealth v. Quartman, 458 A.2d 994, 996 (Pa. Super. 1983) (“The

fundamental right to confront witnesses often gives way . . . to certain

evidentiary principles.”). Appellant therefore is not entitled to relief on this

issue.

                          SORNA Registration Period

         In his second issue, Appellant argues that, in light of recent guidance

from the Supreme Court of Pennsylvania, he should be classified as a Tier II

offender, rather than a Tier III offender, under SORNA. The Commonwealth

and the trial court both agree with Appellant’s position. See Trial Ct. Op. at

15-17; Commonwealth’s Brief at 9.

         We also agree.      The Pennsylvania Supreme Court’s decision in

Commonwealth v. Lutz–Morrison, 143 A.3d 891 (Pa. 2016), was issued

on August 15, 2016, after the trial court in this case classified Appellant as a

Tier III offender. The Supreme Court in Lutz–Morrison held that Section

9799.14(d)(16) of SORNA “requires an act, a conviction, and a subsequent

act to trigger lifetime registration for multiple offenses otherwise subject to a

fifteen- or twenty-five-year period of registration.”     Lutz–Morrison, 143

A.3d at 895 (citation omitted).      Appellant was convicted of two counts of

indecent assault in this case, but his conduct did not involve an act, a

conviction, and a subsequent act within the meaning of Lutz-Morrison. As


                                      - 11 -
J-S29025-17


the trial court explained, Appellant’s “Indecent Assault convictions arose

from a single act that was [Appellant]’s initial act for registration purposes.

Accordingly we agree that [Appellant] is not subject to lifetime registration

under SORNA.” Trial Ct. Op. at 16.

      The most serious crime of which Appellant was convicted was indecent

assault of an unconscious person, 18 Pa.C.S. § 3126(a)(4), a Tier II offense.

See Trial Ct. Op. at 16; 42 Pa.C.S. § 9799.14(c)(1.3).                Appellant’s

registration period should therefore be twenty-five years. See Trial Ct. Op.

at 16; 42 Pa.C.S. § 9799.15(a)(2).         Accordingly, with the benefit of the

Supreme    Court’s   recent    statutory      construction,   and   because   the

Commonwealth also conceded Appellant is due relief, we vacate the lifetime

registration portion of Appellant’s sentence and remand for imposition of a

twenty-five year registration requirement under SORNA.

      In sum, we vacate the lifetime registration portion of Appellant’s

sentence and remand for imposition of a twenty-five year registration

requirement under SORNA.       In all other respects, Appellant’s judgment of

sentence is affirmed. Because we affirm in part based on the trial court’s

opinion, the parties are instructed to attach a copy of the trial court’s

October 5, 2016 opinion to any future filing referencing this Court’s decision.

      Affirmed in part, vacated in part. Jurisdiction relinquished.


      President Judge Emeritus Stevens joins the memorandum.

      Judge Lazarus notes dissent.


                                     - 12 -
J-S29025-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




                          - 13 -
                                                                            Circulated 08/17/2017 03:20 PM




                        COURT OF COMMON PLEAS OF MONROE COUNTY
                                    FORTY-TI-IIRD JUDICIAL DISTRICT
                                  COMMONWEAL TH OF PENNSYLVANIA


 COMMONWEALTH OF PENNSYLVANIA

                                                                   NO. 225 CRIMINAL 2015
                   v.
                                                                APPEAL DOCKET NO.
                                                                2462 EDA 2016
 ALLEN NEAL, JR,
                   Defendant


             OPINION IN SUPPORT QF ORDERPU_RSUANT                        IO Pa.   R.A.P.1925(aj


        Defendant fi~ed an appeal from the judgment of sentence ordering him to serve

one to five years' imprisonment        and c!assifyrng him as a Tier Ill sexual offender based

on his jury trial conviction of two counts of Indecent             Assault. On appeal, Defendant

alleqes that vvr-3 erred by: 1) "deny! n9 him the ability" to recall the victim on his side of

the case; and 2) classifying him. as a Tier      !II   sexual offender under the Sexual Offender

Registration and Notification Act (SORNA), 42 Pa. C.S.A. §9799.10                 et. seq.   Regarding

the offender classification, Defendant suggests that if the conviction is upheld he should

be classified as a 'Tier-·I offender subject to ten year registration."

       For the following reasons, Defendant's first assignment of error lacks merit As to

the sex offender classification claim, we agree that the intervening change in the law

referenced    in    Defendant's     Rule   1925(b)     statement     requires   that   Defendant     be

reclassified. However, he should       be reclassified     as a Tier II twenty-five year registrant

rather than as a Tier I offender.




                                                 1
\ I




                                             BACKGROUND

             Defendant was arrested and charged with Rape of an unconscious person,

       Involuntary Deviate Sexual Intercourse with an unconscious person, Sexual Assault,

      Aggravated Indecent Assault of an unconscious person, Aggravated Indecent Assault

      without consent, Indecent Assault of an unconscious person, and Indecent assault

      without consent.   A jury   was selected on April 5, 20i6. The evidentiary portion of trial

      commenced on April 18, 2016. On April 20, 2016, the jury convicted Defendant of

      Indecent Assault of an unconscious         person and Indecent Assault without consent

      Defendant was acquitted of the other charges.

             The facts and procedural history relevant    to   Defendant's first assignment of error

      were brought out during trial. In summary:

             Defendant and the victim, Karina Zelaya-Betancourt,         had been best friends for

      approximately   six or seven years pnor to this incident, which occurred in the early

      morning hours on December 14, 20'!4. Following a night out, Defendant, the victim, and

      several friends went to the victim's apartment to continue the party. As the party die1d

      down, most of the guests left until only Defendant, the victim, and the victim's friend,

      Amanda Belen, remained. The victim went to sleep in her daughter's bedroom because

      Ms. Belen had already gone to sleep in her room. Defendant, after checking in on the

      victim, went to sleep on the Irving room couch. (N.T. 4/18/2016, pp. 64-65).

            At approximately 8:00 a.m., the victim was awoken by a "pain anally and I saw

      [Defendant] over   me   and I just told him to get off of me." Id. She testified that she had

      been sleeping on her stomach and that her pajama pants and underwear had been

      pulled down. Defendant was mostly clothed but the victim "saw him like tuck himself



                                                    2
 back in before he got off of me" and "walked to the living room." (N.T., 4/18/2016, pp.

65-66). On cross-examination,            the victim conceded that she did not actually see

 Defendant's penis. (N.T., 4/18/2016, p. 111).

          Following the assault, the victim felt wetness on her buttocks area. She went into

the bathroom, wiped the area with baby wipes, and discovered that she was bleeding

from her anus. Some of the bloody wipes were flushed down the toilet, but several

others were thrown into the trashcan. The wipes in the trashcan were later recovered by

investigators.

          After wiping herself off, the victim went into her bedroom, where Amanda Belen

had been sleeping until she was awoken after hearing the victim yell at Defendant. The

victim then called another friend, who lived close by and had been present the night

before,    to escort   Defendant     out of the apartment.      (N.T., 4/18/2016,      pp. 66-70).

Defendant complied without incident.

          Subsequently, the. victim was taken to Pocono Medical Center and the police

were called. At the hospital, the victim was examined by Rose Reyes, R. N., a Sexual

Assault     Nurse Examiner       (SANE).    During the examination,       the victim provided     a

statement to Nurse Reyes and Detective Robert Miller of the Pocono Mountain Regional

Police Department (PMRPD). (N.T., 4/18/2016, p. 70).

          Nurse Reyes, who qualified as an expert SANE nurse, testified that, at the

beginning     of the      examination,   the victim    was crying   and    recounted    the   facts

summarized       above.     During the interview      portion of the examination,      the victim

completed a questionnaire, which asked various questions, including one central to this

appeal: whether the victim had consensual             sex in the previous five days. On the



                                                 3
questionnaire, the victim responded that she had not. (N.T., 4/18/2016,              p. 119). On

cross-examination, defense counsel went over the form with the victim, and the victim

confirmed that she had checked the box accordingly_. Id.

         During her physical examination of the victim, Nurse Reyes discovered "tearing

in the anal area. It was mostly toward the 5 and 8 o'clock area. There was tiny little skin

tears with     a   little tiny bit of bleeding   more so to the 5:0b and 6:00 area."       (N: T.,

4/18/2016, p. 161). Nurse Reyes opined that these tears were consistent with trauma.                 1--




(N.T.,   4/18/2016, p. 171). Nurse Reyes took swabs of.the victim's mouth, anus, and

vagina, which were provided to the police.

         After the SANE examination was completed, Defendant was arrested and taken

to PMRPD headquarters, where he was Mirandized and questioned by Detective Miller

in a recorded interview. (N.T.,        4/19/2016,     pp. 6-18). After conducting the interview,

Detective Miller and several PMRPD officers went to the victim's residence to collect

evidence. They took _photographs         of the bedroom and the trashcan, gathered several

items of clothing, and collected the bloody wipes from the trashcan. (N.T., 4/19/2016,

pp. 18-21).

         The evidence gathered by Nurse Reyes and the police, together with a buccal

DNA swab of Defendant, was sent to the Pennsylvania State Police Crime Lab for

testing and analysis. At trial, the Commonwealth called a seroloqist.and a forensic DNA

analyst from the Crime Lab to testify about their analyses and testing of the evidence.

         For   clarity's sake, the rectal swab and. the bloody wipes are the pieces            of
evidence that are relevant to this appeal. The DNA analyst testified that the DNA of

three individuals - the victim, Defendant, and an unidentified person - was found on the



                                                 .4
      wipes. Specifically, he stated that testing of the wipes revealed "[a] partial DNA profile

      that was consistent with a mixture of at least three individuals [] [] from the non-sperm-,___~

      portion of the tissue." (N.T., 4/18/2016, p. 216). As to the likelihood that the DNA found

      on the wipes came from the victim and Defendant, the analyst stated:                  -----············-······-·




             [t]he results that I obtained stated that it was 4. 7 tredecillion times
             more likely in the Caucasian population, 120 duodecillion times
             more likely in the African American popu!atimram:f-19 duodecillion
             times more Hkely in the Hispanic population that [the victim] and
             [Deferidant's] DN.t.. was present in this mixture than not

      (N.T., 4/18/2016, p. 219).

             The. DNA analyst also performed a ONA analysis               on   the victim's rectal swab,

      which revealed the presence of male DNA. However, the DNA did not belong· to

      Defendant. {N.T.i4/1a/201E.tp.. 2'24f.

             Aft.er the CriiT,e Lab analysts. testified, aredacted version of the recorded

      interview Detective ivrnk~r conducted       witi1 l:.kifF.mdant was played. Redaction occurred

f>    after consultation · between the Court and counsel for both parties which included
                              ..    .         .    '       '     .    .
      discussion of Rape Shield. Law issues that are the same as, or at least similar to, the                            .. ,I



     · issues implicated by Defendant's first assignment of error.                                                         I


             Prior to the evidentiary portion of trial, the Cornmonwealth gave notice that it

      intended to play the recorded interview .. However, citing the Rape Shield Law, 1 f;

      Pa.C.S.A.   Section 3104. the Commonwealth               sought to redact references made by
                                                                                                          -~-.   ;
      Defendant to the victim's alleged sexual encounter with an unknown male the night

     before the incident that gave rise to this case. Defendant objected to redaction and we

     reserved ruling on the Issue until more context was provided as the trial unfolded and

     developed.



                                                       5
           After the first day of trial, we discussed the issue with the parties on the record

    after the jury had been excused. Defense counsel argued that

           So you know now we have this statement where no - and yet we
           have this evidence that came in today from the Commonwealth's
           witnesses; it wasn't my evidence Your Honor it was their evidence
           okay which said that their swab - their DNA swab was - three
           people on there. Not just [Defendant] but [the victim] and also a
           third so I think it goes to the credibility as to what's on that DNA
           swab and whether or not she had relations the night before.

    (N.T., 4/18/2016, p. 244). We expressed an initial belief that the evidence would be

    inadmissible under the Rape Shield Law, but instructed the parties to research and be

    prepared to argue, the issue in more detail the next morning to assist us in making a

    final ruling. However, the following morning, defense counsel withdrew his objection

    with respect to redacting this portion of the transcript. (N.T., 4/19/2016, p. 4).

    Accordingly, the redacted version of the recording was played.

          After the Commonwealth rested, Defendant called Arthur Young, a scientist who

r   qualified as an expert ·Jn the fields of serology, forensic DNA analysis, and Y-STR

!   analysis. Prior to trial, Mr. Young reviewed the reports generated by the serologist and

    the forensic DNA analyst from the Pennsylvania State Police. Additionally, he was

    present and heard the majority of the trial testimony. He testified in detail regarding

    serology and DNA analyses, the reports prepared by the State Police serologist and

    DNA analyst, the tests used by the police, and how the tests can produce false

    positives. In large measure, Mr. Young agreed with the police analysts, including their

    conclusion that the bloody wipes most likely contained the DNA of Defendant, the

    victim, and an unknown person. Mr. Young also agreed that the DNA analysis of the




                                                6
     rectal swab revealed the presence of male DNA that was not contributed by Defendant.

     (N.T., 4/19/2016, pp. 103-04,108-09).

            Counsel for Defendant then announced that he would be recalling the victim. At

    that point, the Commonwealth asked for and was granted a sidebar outside ofthe jury's

     hearing. After   a   very lengthy discussion, we ruled that Defendant could recall the victim

    but would not be permitted to question her regarding the alleged sexual encounter with

    the unknown male, as this evidence was prohibited by the Rape Shield Law. (N.T.,

    4/19/2016,   pp.      155--71 ). It ts this ruling that forms the basis of Defendant's first

    assignment of error.

           During the sidebar, the Commonwealth           asked for an offer of proof as to why

    Defendant wanted to recall the victim. Defendant's attorney responded that:

           Our offer of proof is that we're calling [the victim] because we
           believe that there is a serious question as to credibility regarding
           this third person. VVfJ think we've established that there is a third
           person. VVe've estanhshed it not only in the first set of DNA swabs
           that were submitted to the crime [lab]; but also to the second set of
           DNA swabs that wers submitted to the crime lab. So there is a third
           person.

r          In the first set of DNA swabs for the rectal we have a male; an
           unidentified male .and that came· from the rectal swab. So we
           believe at this particular point - and we're going to call her and
           question her regarding as to why that is the case:

            I think it goes to her credibility. She testified under oath that she
           didn't have· any other relations for five rh~ys preceding, okay; and
           although the district attorney might want to characterize this as
           Rape Shieldl did)ook up the law last night and I do believe that the
           credibility of a witness is now in play and I think we've established
           certainly prima fade evidence that there is a third person that's
           been involved in this woman's life and I don't believe she told the -
           truth.

    (N.T., 4/19/2016,.pp.1.59-57).     The assistant ~,strict attorney argued that the question of

    whether or not the victim. had had sex in the prevlous-five days had been asked and
        answered, that the presence of DNA on the rectal swab did not mean that semen was

        present, and that such questioning is prohibited by the Rape Shield Law. Addltlonall» ',,--.+----

        he pointed out that the Rape Shield law nas notice. requirements which were not met in

        this case. (N.T., 4/19/20i6, pp.157-58).

               After hearing the arguments of both attorneys and noting that this issue should

        have been raised earlier, either pretrial or during the mmning-when we had set aside

        time to hear argument on redaction of the recording and application of the Rape Shield

        Law, we articulated the reasons for our ruling:

              Well, here's the thing; procedurally I still think if you want to get into
              Rape Shield then there is a procedural component to this and I
              indicated yesterday both before and after the cross-examination
              you're ta!krng about that the procedure hadn't been met and it still
              hasn't been. There's no written motion and no timely motion.

              Second, with respect to credibility, I think it's pretty clear that in
              genera! you. can properly ask a witness questions that would go to
              credibility and judging the veracity of his or her testimony; however,
              in the context   of  Rape Shield just credibility by itself I have to
              disagree with [D~fendant]. As a general concept it doesn't· trump
              the Rape Shield Law. It has to be sornethinq with respect to motive,
              bias, those typesof things.

              So had there been any indication for example that [the victim's]             1
...,.         boyfriend came back from Vegas early and saw [Defendant] in the
              place and that she might have cried rape because she got caught
              with someone else in her house; that might be a whole different
              story. Then you have the constitutional issues and you have her
              credibility, etc.; but just to say that I .want to ask her about
              something that has to do with sex because she just said she didn't
              have it; that's just a back door attempt around the Rape Shield law
              and that's not required as far as the cases I've seen.

              Having said all that, I'm not sure l can necessarily preclude the
              witness because I think there are questions that can legitimately be
              asked that might not implicate the Rape Shield Law; but if you're
              asking me if you can ask her ff she had - to talk about sex or
              someone else having sex, absolutely not.



                                                      8
    (N.T., 4/19/2016, pp.159-60).

          We subsequently gave counsel for Defendant the opportunity to refine his offer of

    proof, his arguments, and the scope of the questions he wanted to ask and the subjects
                                                         ..
    about which he wanted to inquire. For reasons stated on the record, we did not modify

our ruling. (N.T., 4/19/2016, pp. 160-71).

          Defeneant--ane-his-att0mey-t1ltimately-eleeted-not-t0-:-recall the victim .1 Instead, on

the third morning of trial, after several defense exhibits that were admitted, the defense

rested. The jury then found Defendant guilty of two counts of Indecent Assault.

          On July 11, 2016, we sentenced Defendant to incarceration of twelve to sixty

months.      In accordance        with the holding and rationale of our Superior                        Court in

Commonwealth v. Mero/fa, 909 A.2d 337 (Pa. Super. 2006), which we determined was

at the time the controlling precedent, we classified Defendant as a Tier Ill sex offender

and required that he register under SORNA for life. As noted, Defendant's second

assignment
 .
           of error takes
                        .~:. issue with the SO RNA classification.



                                                 DISCUS ION

1.        DefeDdant's First Assignm~nt of Error Lacks. Merit as the Court Did Nq!
          Improperly Preclude Defendant from Recalling the Victim

          In his first assignment of error, Defendant alleges that:

          the trial court abused its discretion AND committed reversible error
          when it denied [Defendant] the ability to recall the victim in this
          matter after the Commonwealth rested, AND appellant laid an

1
  After the victim testified at trial, the Commonwealth asked that she be excused. Counsel for Defendant objected
and indicated that the victim was under his subpoena as wellas the Commonwealth's. We told the victim that she
was not excused from her subpoenas. We allowed the victim to leave the Courtroom and the Courthouse, but
instructed that she must provide contact information and be available on relatively short notice for recall. (N.T.,
4/18/2016, p. 140). Thus, the victim was available for recall.


                                                         9
        evidentiary foundation, wherein, the victim's credlbillty was at issue
        regarding the physical location of her claimed assault:

       Victim claimed she woke up bleedlng from her anus. DNA evidence
       provided by the Commonwealth demonstrated that male DNA was
       not [Defendant's]. Rather, the 'rectal swab taken from the victim's
       anus during her rape examination demonstrated that the DNA
       located on the swab was another male's DNA. Denial of
       [Defendant] to to [sic] question the victim as to her credibility as to
       this vital and material point was an abuse of discretion by the trial
       court judge becaue . [sicJ it denied Defendant. his right to
       confrontation under Artide~-Secttun-0- of the -PennsylvaAia---------
       Constitution and 6111 Amendment "Of the United States Constitution's    . .....       -
       confrontation clause, and thereby denied (Defendant] of a fair trial
       AND liberty without due process of. law under the Fourteenth
       Amendment of the United States Constitution.

(Defendant's    1925(b) 'Statement,    filed   8/25/2016).   Put simply,   and   reading. this

assignment of error   to   include omitted references, Defendant believes that he should

have had the opportunity to question the victim as to why another male's DNA was

found on the rectal swab lf,as indicated ·011 a hospital form, she had not had consensual

sex wrthin the previ ous fiva d:ay -- anotaer attempt tc delve into her alleged encounter

with a man the night before the incident. Defendant's belief and the assignment of error

to which the belief gave rise lack merit.

       The Rape Shield Law provides, in pertinent part

       (a) General rule. ···· Evidence of specuic instances of the alleged
      victim's · past· sexual conduct, opinion. evidence of the alleqed
      victim's past sexual conduct, and reputation evidence of the alleged
      victim's past sexustconduct 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
      pursuantto the rules of evidence.

      (b) Evidentiary proceedings .. -- A defendant who proposes to offer
      evidence of the aileged victim's past sexual conduct· pursuant to
      subsection (a). shall file a written motion and offer of proof at the.
      time of triaL·.!f, atthetime of trial, the court determines that the


                                               10
                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.

               The bar to evidence of a victim's past sexual conduct is not absolute and is

        subject to certain statutory and constitutional exceptions. The lone statutory exception,

        included in the language of Section 3104(a); allows evide-nce of the victim's past sexual

        conduct with the defendant when consent of the victim is at issue. That exception is

        clearly not applicable to this case. See Commonwealth v. Al/burn, 721 A.2d 363, 367

        (Pa. Super. 1998).'

               With respect to the constitutional exceptions, our Supreme Court has held the

        law does not prohibit relevant evidence that "directly negates the act of intercourse with

        which a defendant is charged." Commonwealth             v. Majorana, 470 A.2d 80, 84 (Pa.

        1983). See also Commonwealth v. Widmer, 667 A.2d 215, 216 (Pa. Super. 1995). The
f.r :
'·
        Rape Shield Law may· r{cit be used to exclude relevant evidence showing a witness' bias

        or attacking credibility. Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super. 1985).

        "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. Guy, 686 A.2d 397, 400 (Pa. Super. 1996). If the offer of proof only

        shows that others in addition to the defendant had sexual contact with the victim, but

        does not show how the evidence would exonerate the defendant, evidence· of prior

        sexual activity is inadmissible under the Rape Shield Law. Commonwealth v. Fink, 791

        A.2d 1235, (Pa. Super. 2002); Commonwealth v. Durst, 559 A.2d 504 (Pa. 1989).
                                                                       )



        In sexual assault cases, trial courts are frequently called upon to interpret an

apply the Rape Shield Law. Rulings on the admissibility of evidence of the sexual

history of a sexual assault complainant will be reversed only where there has been a

clear abuse of discretion. Commonwealth            v. Al/burn, 721 A.2d 363, 366- (12a. Super.:

1998). An abuse of discretion is not merely an error of judgment. Id. An abuse of

discretion occurs where the record shows that the trial court, in reaching a conclusion,

overrides or misapplies the law, or exercises its judgment in a manifestly unreasonable

manner or as the result of partiality, prejudice, bias, or ill will. Id.

       In this case, we orally summarized our reasons for issuing the challenged ruling

on the record. (N.T. 4/19/2016, pp.159-60 and 160-71). We incorporate our on-record

statements into this opinion by reference. For the most part, the rationale we previously

articulated suffices to address Defendant's first assignment of error and to demonstrate

that our ruling was not an abuse of discretion. To what we said before, we add the law

cited above and the following:

       First, Defendant's assignment of error is inaccurate and misleading. We did not,

as the assignment      implies, preclude        Defendant from recalling the victim.   On- the

contrary, our ruling was quite clear that Defendant would be· permitted to recall the

victim, but that the subject matter about which he would be permitted to inquire would

be limited in accordance with the Rape Shield Law. (N.T. 4/19/2016, pp.159-60).

       Second, Defendant's       attempt   to   delve into areas limited or precluded by the

Rape Shield Law was procedurally defective. Under Section 3104(b), Defendantwas

required to file a written motion in addition to the offer of proof. When Defendant made;

his oral motion et trial, we indicated that this procedural prerequisite had not been met.
       (N.T. 4/19/2016, pp. 159-60). By itself, this failure is fatal to Defendant's claim. See

       Commonwealth v. Beltz, 829 A.2d 680; 684 (Pa. Super. 2003). This is especially true in

      this case since Defendant and his attorney became aware of the information needed to

      file the required motion - presence of the DNA of an unknown male on the· rectal swab,

      the victim's answer on-tt.le-£AN~     q1;1esti0nA-air:<~-Fe~aFElin§-€0Aser:1st1al-sexual activity.

      and Defendant's assertionthatthe victim had sexual contact with a man the night

      before - through documents provided in discovery, expert reports, and Defendant's

      personal observations and knowledge long beforetrial. Simply, Defendant had ample.] __

     . opportunity to file a timely written motion. He did not.

             Third, the evidence Defendant sought to introduce to address- credibility was

      heard by the jury, albeit without reference to the alleged sexual encounter with a man

      the night before, through the testimony of the victim and the reports and testimony of

      the experts. Specific,?.!ly, the Jury heard the victsn's denial of sexual activity within the

      previous five days and about the presence. of an unknown male's DNA               on   the rectal

     swab. Our ruling did not preclude Defendant from eliciting or arguing this evidence or ·

,.   . _.using it to attack the victim's credibility. !n fact, in his closing, counsel for Defendant

     highlighted and arqued this evidence. (N.T., 4/20/2016, pp. 16-17).

             Fourth, Defendant's sote reason for recalling the victim was his belief that her

     general credibility had been called into question based on the response she provided on

     the questionnaire.    .According to Defendant,       this "credibility   issue" constitutes    an

     exception to the Rape Shield Law. However, numerous cases have held that such

     evidence, asserting that others in addition to Defendant had sexual contact with victim:

     is inadmissible and not relevant See Durst, 559 A.2d at 506 ("Inasmuch as Appellee's



                                                    13
        offer of proof tends only to show that others in addition to Appellee had sexual contact

        with the victim rather than showing how this testimony would exonerate him, Appellee

        has not satisfied his burden of showing that the absent testimony would have been

        helpful in establishing his innocence."). See also Commonwealth           v.   Reefer, 573 A.2d

        1153, 1154 (Pa. Super. 1990) (holding that such evidence is properly excluded on

        grounds of relevancy),

               Finally, along similar lines, as we noted on the record, Defendant's offer of proof

       did not allege or contain any indication that the victim had motive to lie or bias that was

      .. specific to Defendant. Without a more specific proffer, defendant's general credibility

       argument is simply not enough to trump the Rape Shield Law. In this regard; a quick

       reading of BlcJck could lead to the belief that a victim's past sexual conduct may be

       admissible if it brings credibility into question. However, subsequent appellate cases

       clarify and teach that a general credibility attack is simply not enough to trump the Rape

       Shield Law. In this regard, the Superior Court has clarified that inquiries attacking the

      . victim's credibility are sufficient to pierce the Rape Shield Law "only where the victim's
I
1,;   : .. credibility was allegedly affected by bias against or hostility·toward the defendant, or the
!


       victim had a motive to seek retribution." Commonwealth         v.   Boyles, 595 A.2d 1180 (Pa.

       Super. 1991); Compare Commonwealth           v.   Frank, 577 A.2d 609, 620 (Pa. Super. 1990)

       and Commonwealth       v.   Erie, 521 A.2d 464, 467-69 (Pa. Super. 1987), allocatur denied,

       538 A.2d 875 (1988) (following Black) with Commonwealth v. Reefer, 573 A.2d 1153,

       1154 (Pa. Super. 1990) and Commonwealth                v. Nenninger, 519 A.2d 433, 437 (Pa.

       Super. 1986) and Commonwealth v. Dear, 492 A.2d 714, 719-20 (Pa. Super. 1985) and

       Commonwealth v. Coia, 492 A.2d 1159, 1161 (Pa. Super. 1985) (distinguishing Black).



                                                         14
              In Reefer, for example, the appellant sought to introduce wltnesa.testlmony

      regarding the prior sexual conduct of the victim (and of. her mother) for impeachment

      purposes. In addition to finding the proffered testimony irrelevant, the court noted the

      appellant's failure to "connect the alleged sexual activity involving the excluded defense

     witnesses with a motive for hostility by the victim, or his mother, against him." Reefer

     supra at 1154. The court went on to contrast Reefer with Black, a case in which the

     excluded        evidence     "concerned      the   defendant's     ability   to     cross-examine     the .

1,
     prosecutrix/victim       about her incestuous relationship with her · brother, who had been

     driven from the home for that reason by the defendant." Id. In Black, this evidence was

     admissible but it is clear that the proffer in that case laid a foundation for bias and

     motive. Here, Defendant's offer of proof did not allege orcontain any indication that the

     victim had a specific motive to lie or bias towards Defendant. Without a more specific

     proffer, Defendant's general credlblhty argument was simply insufficient to trump the

     Rape Shield Law.

     2.      Defendr,3nt Should Be Classified as a Tier II Offender and Required to R@ist91
             Under SORNA fQLTwenty-Five Years

             As noted, we classified Defendant as a Tier Ill sex offender in accordance with.

     Commonwealth v. Mero!Ja, supra; the controlling authority at the time, which he!d that

     an offender who is convicted of multiple index sex offenses in a single incident and-case

     is required to register as a sex offender for life. However, the Pennsylvania Supreme

     Court subsequently decided Commonwealth v. Lutz .. Morrison, 143 A.3d 891 (Pa; 2019)

     and AS. v. Pa. State Police, 143 A.3d 896 (Pa. 2016) which changed the law.

     Specifically,     the    Supreme     Court     ctarified   that,   "the   statute    [42   Pa.   C.S./.\..

     §9799.14(d)(16)]        requires an act, a conviction, and a subsequent act to trigger lifetime


                                                         15
            registration for multiple offenses          otherwise subject to a fifteen- or twenty-five-yea,_-__,_____

            period of registration." Lutz-Morrison, 143 A3d at __ .

            In this case, .theJncecent Assaultconvictions.                   arose. f[Om_a_sJogle._ac_t__Jhat_wa~

            Defendant's initial act for registration purposes. Accordingly, we agree that Defendant.is __ ~--~--

            not subject    to lifetime      registration     under      SORNA.       However; -we- disagree -with

            Defendant's contention that he shoulo be classified as a "Tier-I offender subject to ten

        year registration." (Defendant's Rule 1H25(b) Statement, filed August 25, 2016, p. 2).2

 h                SORNA contains' a system in which the crimes that are subject to registration
!
\
f
        requirements are divided into three tiers. 42 Pa. C>S.A. § 9799-;14.Personsconvict~.d \9f
rI
I
        a Tier J, II, or. IU offense are subject to SORNA's registration requirements for fifteen
f-

ii'",
        years, twenty-five years, and life, respectively. 42 Pa C.S.A. §9799.15. Defendant was

        convicted of indecent Assault without consent under 18 Pa. C.S.A §3126(a)(1) and

        Indecent Assault of an unconscious. person under 18 Pa. C.S.A. §3126(a)(4). Indecent.

        Assault under sub-section (a)(1) is a Tier I offense. However, Indecent Assault under

        sub-section (a)(4) is a Tier Ii offense. 42 Pa.C.S.A. § 9799. 14(c)(1.3). Accordingly, we

        believe that Defendant should be reclassified as a Tier II offender and required to
I:
        register and report under SORNA for twenty-tivevears.                     42 Pa.C.S.A. § 9799. 15(a){2).

        In spite of reaching this conclusion. we do not believe we can at this time amend the

        judgment of sentence to reclassify Defendant                    Specifically, we believe that this appeal

        divests us of jurisdiction to make the change.                  See Pa.R.A.P. 1701(a) and 1701(b)(3):

        see also Commonwealth v Tabb, 207 A.2d 884 (Pa. 1965). If the judgment of sentence

        is affirmed, and if the Superior Court agrees that Defendant is entitled to be reclassified

        2
          Under SORN A, the fourth version of Megan's Law in Pennsylvania, there is no ten year registration period. The
        ten year registration requested in Defendant's Rule 1925(b) statement is apparently a reference to the third iteration
        of Megan's Law, which did include a ten year period for some index crimes, that SORNA repealed and replaced.

                                                                  16
                               )



     as a Tier II offender, we will amend the judgement of sentence once the appeal is

     decided and all appellate courts relinquish jurisdiction.

            In sum, for the reasons stated on the record during trial as well as those

     articulated in this opinion, the challenged evidentiary ruling was proper under the facts

     and the law. Therefore, Defendant's first assignment of error lacks merit. However, due

     to the intervening change in the law, Defendant should be reclassified as a Tier II

     offender. Accordingly, we believe that the convictions should be affirmed, the

I-   classification of Defendant as a Tier Ill offender should be reversed, and the case

     · should be remanded for the entry of an order reclassifying Defendant as a Tier II

      offender subject to SORNA registration for twenty-five years.




      DATE: October 4, 2016
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