J-S73044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRANDON VAUGHN SWEITZER,                   :
                                               :
                       Appellant               :       No. 865 MDA 2019

          Appeal from the Judgment of Sentence Entered April 25, 2019
                  in the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0007445-2017

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: FEBRUARY 7, 2020

        Brandon Vaughn Sweitzer (“Sweitzer”) appeals from the judgment of

sentence imposed following his convictions of rape and sexual assault. 1 We

affirm.

        On the evening of September 16, 2016, Sweitzer, C.F., Jennifer

Rohrbaugh (“Rohrbaugh”), and two of Sweitzer’s friends gathered at

Rohrbaugh’s home in Manchester, Pennsylvania, for a bonfire and some

alcoholic drinks. Around midnight, C.F. and Rohrbaugh went inside the home

to sleep. C.F. slept in Rohrbaugh’s guest bedroom. Sweitzer and his two

friends went to a local bar for a couple hours, then returned to Rohrbaugh’s




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1   18 Pa.C.S.A. §§ 3121(a)(3), 3124.1.
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home. At some point in the night, Sweitzer entered the room in which C.F.

was sleeping, and engaged in sexual relations with C.F.2

       The next morning, C.F. left Rohrbaugh’s home, drove to a nearby

Rutter’s convenience store, called 911, and told police that she had been

sexually   assaulted     by   Sweitzer3        the   previous   night.   Sweitzer   was

subsequently charged with rape and sexual assault.

       At trial, following C.F.’s testimony during the prosecution’s case-in-

chief, the prosecutor advised the court that C.F. intended to observe the rest

of the trial. Sweitzer objected, and argued that if C.F. was not sequestered,

she should not be permitted to give rebuttal testimony. The trial court denied

Sweitzer’s request to sequester C.F., and permitted C.F. to give rebuttal

testimony after she had observed the totality of the trial, including Sweitzer’s

testimony.4

       Following trial, the jury found Sweitzer guilty of the above-mentioned

offenses. The trial court sentenced Sweitzer to five to ten years in prison.



____________________________________________


2 C.F. testified at trial that she had been asleep         when Sweitzer entered the
room, and that she awoke to find him having                sex with her, without her
consent. Sweitzer testified at trial that C.F. was         awake and talked with him
when he entered the room, and consented to the             sexual relations.

3C.F. only knew Sweitzer by his first name. The investigating police officers
obtained Sweitzer’s last name and phone number from Rohrbaugh.

4 The trial court initially ruled that C.F. would not be permitted to give rebuttal
testimony if she observed the trial. However, the trial court changed its ruling
before the trial resumed.

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Sweitzer filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

      On appeal, Sweitzer raises the following question for our review:

“Whether, after initially finding [C.F.] had to be sequestered for [Sweitzer’s]

testimony[,] because [C.F.] would be testifying in rebuttal, the trial court

erroneously reversed itself and allowed her to be present for Sweitzer’s

testimony before taking the stand and rebutting that very testimony?” Brief

for Appellant at 4.

            This Court’s standard of review for a trial court’s decision on
      sequestration of witnesses is abuse of discretion. We will not
      reverse a trial judge’s decision to grant or deny sequestration
      absent a clear abuse of discretion. Moreover, an appellant must
      demonstrate that he or she was actually prejudiced by a trial
      judge’s sequestration order before any relief[ ]may be warranted.

Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa. Super. 2006)

(citations and quotation marks omitted), overruled on other grounds by

Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019).

      Sweitzer alleges that the trial court abused its discretion in denying his

Motion to sequester C.F. from Sweitzer’s testimony. See Brief for Appellant

at 26-35. Sweitzer argues that by allowing C.F. to hear his testimony, C.F.

was able to rehabilitate her own testimony from the prosecution’s case-in-

chief by molding it to fit Sweitzer’s testimony. Id. at 28-31. Sweitzer claims

that he was prejudiced as a result, because the jury’s determination of the

sole issue at trial, i.e., whether C.F. consented to the sexual activity, was

based on the credibility of C.F.’s and Sweitzer’s testimony. Id. at 31-35.


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       “At a party’s request[,] the court may order witnesses sequestered so

that they cannot learn of other witnesses’ testimony.” Pa.R.E. 615. “A request

for sequestration must be specific and supported by a showing that the

interests of justice require it. The purpose of sequestration is to prevent a

witness from molding his testimony with that presented by other witnesses.”

Stevenson, 894 A.2d at 767 (citation and brackets omitted).

       Here, C.F. testified on two occasions; during the prosecution’s case-in-

chief, and on rebuttal.       C.F. could not have molded her testimony in the

prosecution’s case-in-chief to fit Sweitzer’s testimony, because C.F. testified

before Sweitzer. See N.T., 1/14-18/19, at 137-231. Although C.F.’s rebuttal

testimony followed Sweitzer’s testimony, a party is permitted to present

rebuttal witness testimony, subject to the trial court’s discretion,5 for the

purpose of contradicting the testimony of an opposing witness.            See

Commonwealth v. Hickman, 309 A.2d 564, 567 (Pa. 1973) (setting forth

the standard for admission of rebuttal testimony). Assuming that C.F. had

“molded” her rebuttal testimony to fit Sweitzer’s testimony, Sweitzer suffered

no prejudice, because he was free to cross-examine C.F. on rebuttal, and point

out any contradictions or inconsistencies with C.F.’s prior testimony, and the

jury would have been free to consider the inconsistencies in its credibility

assessment. See Stevenson, supra. Moreover, subject to the trial court’s

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5As Sweitzer has not claimed that the substance of C.F.’s rebuttal testimony
was inadmissible, we need not address this issue.


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discretion, Sweitzer could have presented additional testimony in support of

his case following C.F.’s rebuttal testimony. See Commonwealth v. Beck,

560 A.2d 1370, 1374 (Pa. 1989) (stating, “[t]hat a trial judge properly may

permit a [party] who has rested to reopen his case for the purpose of offering

additional testimony is well-settled in our law.”). Accordingly, we find that

the trial court did not abuse its discretion in declining to sequester C.F. from

Sweitzer’s testimony.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/07/2020




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