J-S32024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AUSTIN EADDY,                              :
                                               :
                       Appellant               :   No. 3869 EDA 2017

            Appeal from the Judgment of Sentence October 25, 2017
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0001537-2016


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 17, 2019

        Appellant Austin Eaddy appeals from the judgment of sentence imposed

after a jury found him guilty of two counts of attempted rape and one count

of indecent assault,1 but acquitted him of numerous other sexual offenses and

one count of theft.2 Appellant claims the trial court erred in excluding evidence

regarding the complainant, the arresting officer, and an independent

eyewitness.     Additionally, Appellant challenges the trial court’s decision to

impose restitution to replace the complainant’s cell phone.              We affirm

Appellant’s conviction and the sentence of imprisonment, but vacate the

judgment of sentence to the extent it ordered restitution.
____________________________________________


1 18 Pa.C.S. §§ 903 & 3121(a)(1) (attempted rape by threat of forcible
compulsion), 3121(a)(2) (attempted rape by threat of forcible compulsion);
and 18 Pa.C.S. § 3126(a)(1) (indecent assault—without consent),
respectively.

2   18 Pa.C.S. § 3921(a)(1) (theft by unlawful taking or disposition).
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     The Commonwealth alleged Appellant took the complainant’s phone and

sexually assaulted her in a parking garage at West Chester University.

Appellant and the complainant were both students at the university, but did

not know each other before the incident in question.      Appellant and the

complainant admitted drinking alcohol at separate parties before meeting.

     Surveillance video showed Appellant and the complainant meeting on

the street at approximately 2:00 a.m. on April 1, 2016. They walked across

campus together and eventually entered a parking garage through a window

in the concrete wall. Once inside the parking garage, the complainant handed

Appellant a phone, and Appellant put the phone in his pocket.        Shortly

thereafter, Appellant and the complainant embraced near a set of garage

doors, which were closed at the time. The video showed the two apparently

embracing, kissing, and engaging in other intimacies by the garage doors.

Appellant and the complainant then walked from the garage doors to a space

between two parked cars. As discussed below, Appellant and the complainant

provided different accounts of what happened between the two cars.

     An independent witness, Catherine Doherty, entered the parking

garage. She could not recall where she parked and was pressing the button

on her key fob.   She then heard a distressed female voice asking for her

phone. According to Ms. Doherty, she saw Appellant standing in front of the

complainant. The complainant was on her back on top of the hood of a car,

and the complainant’s pants were down. When Ms. Doherty asked what was

going on, Appellant stated, “[O]h shit,” and ran. N.T., 7/18/17, at 214, 221.

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The complainant left in a different direction than Appellant and was crying and

pulling up her pants. Ms. Doherty initially pursued Appellant, but Appellant

exited the parking garage through the window in the concrete wall.

      Ms. Doherty then caught up with the complainant. Ms. Doherty did not

know the complainant before the incident, but learned that they both lived in

the same residence hall.    Ms. Doherty walked with the complainant to the

residence hall and opened the door for her. A security guard noticed that the

complainant’s knee was bleeding and called West Chester University police.

Although the complainant initially stated that she wanted to go to her room,

the complainant then told the guard she was sexually assaulted.

      Officer Matthew Rychlak responded to the dispatch based on the security

guard’s initial call. As the officer was parking his car by the residence hall, he

received an update that the complainant also reported a sexual assault. The

officer entered the residence hall and initially attempted to interview the

complainant in a common room of the residence hall. However, he then had

Ms. Doherty enter the room and interviewed the complainant with Ms. Doherty

present.    The officer indicated that the complainant appeared more

comfortable with Ms. Doherty present.

      During this interview, the complainant told the officer she was sexually

assaulted. The complainant initially reported she was in the parking garage




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when a black male approached her and forced her to engage in oral and

vaginal intercourse.3

       An ambulance took the complainant to a hospital where she underwent

a sexual assault examination. Ms. Doherty accompanied the complainant to

the hospital.     A blood test revealed that the complainant’s blood-alcohol

concentration was over .20%. The sexual assault examination did not detect

the presence of Appellant’s DNA on the complainant.             Officer Rychlak

separately interviewed Ms. Doherty at the hospital, and she told the officer

that she witnessed a rape.

       Detective Roland Walker III of the West Chester University Police

Department was assigned as the lead investigator.              As part of the

investigation, Sergeant Daniel Irons reviewed video from several surveillance

cameras in and around the parking garage. A review of the video recordings

led to the identification of Appellant as the individual with the complainant

inside the parking garage.

       Detective Walker filed a criminal complaint on the evening of April 1,

2016. Detective Walker’s affidavit of probable cause summarized the findings

of the investigation. According to the affidavit of probable cause, Detective

Walker took a second statement from the complainant with Officer Rychlak

and Ms. Doherty present, and took a statement from Ms. Doherty. Detective

Walker alleged that he was able to identify Appellant from the surveillance
____________________________________________


3The complainant initially identified her assailant as “Jalil.” The next day, the
complainant reported that she did not know who attacked her.

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video.    Detective Walker stated that he took possession of the evidence

obtained from the sexual assault examination and placed it into an evidence

room.     Detective Walker’s affidavit of probable cause incorporated the

complainant’s initial allegations, some of which were inconsistent with the

surveillance videos. These included the complainant’s allegation regarding the

street she was on before entering the garage and her assertion that an

unknown male approached her in the garage.

        Appellant, who had left the campus sometime after the incident, was

taken into custody on April 6, 2016. The Commonwealth subsequently filed

an information charging Appellant with rape, attempted rape, indecent

assault, and theft, among other offenses.

        Appellant retained counsel and submitted numerous pretrial motions

seeking discovery and the admission of evidence regarding the complainant,

Detective Walker, and Ms. Doherty. On June 12, 2017, the Commonwealth

filed a motion in limine to preclude Appellant from referring to (1) the

complainant’s prior sexual conduct, including her text messages to third

parties, (2) Detective Walker’s personnel file, and (3) Ms. Doherty’s previous

sexual assault.

        On June 19, 2017, the trial court held a hearing on the Commonwealth’s

motion in limine. The trial court heard parties’ general arguments discussing

the bases of the motion in general terms.      The parties also indicated that

Detective Walker, who submitted the initial criminal complaint and prepared

the affidavit of probable cause, was no longer employed by the West Chester

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University Police Department.    See N.T., 6/19/17, at 13.       The trial court

scheduled an in camera conference, with a court reporter present, for June

23, 2017, to hear arguments based on more specific facts. See id. at 33, 42.

      On July 10, 2017, the trial court entered an order granting the

Commonwealth’s motion in limine. The trial court, in a footnote to its order,

reasoned that (1) the Rape Shield Law, 18 Pa.C.S. § 3104, precluded

Appellant from presenting the complainant’s text messages regarding her

“sexual proclivities[,]” (2) the personnel file of Detective Walker was not

relevant, and (3) the evidence of a previous sexual assault against Ms.

Doherty were irrelevant and any relevant purpose would be outweighed by

the potential for prejudice. Order, 7/10/17, at n.1, 3-4 (unpaginated). The

docket and record contained no indication that the trial court held a formal in

camera hearing. However, the trial court later referred to “off the record”

proffers made by Appellant. Id. at n.1, 3.

      Appellant proceeded to a jury trial.          The Commonwealth called

numerous    witnesses,   including    Officer   Rychlak,   Sergeant   Irons,   the

complainant, and Ms. Doherty, among others. The Commonwealth did not

call Detective Walker as a witness.

      At trial, the complainant testified that she had been drinking at several

parties before she met Appellant. The complainant stated she could not recall

the events after the last party that she attended. Specifically, the complainant

testified that she did not remember meeting Appellant on the street, walking

with him to the parking garage, or entering the parking garage. She could

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not explain why she appeared to hand Appellant a phone after they entered

the garage. She also could not remember her interactions with Appellant while

they were by the garage doors.

      According to the complainant, she first recalled being with Appellant

when they were between the two cars in the parking lot and Appellant told

her “to suck his dick.” N.T., 7/18/17, at 100. Appellant pushed her head

down, and when she tried to stop, Appellant pushed her aside and choked her.

The complainant testified that Appellant had his penis in her mouth. Appellant

eventually made her get up and get face down on the hood of the car. The

complainant could not remember how Appellant had her phone, but recalled

asking him to give back her phone.       Appellant did not return her phone.

Instead, she felt Appellant’s penis at her “butt.” Id. at 108. The complainant

then heard a female, Ms. Doherty, call out. The complainant pulled up her

pants and left.

      The complainant verified that her phone was later found outside the

garage.   However, when the phone was returned to her, the screen was

shattered. She testified that the screen of the phone was not damaged when

she last remembered using the phone.

      On cross-examination, the complainant acknowledged that she was

convicted for having a false identification several months after the incident in

the parking garage.    The complainant testified that she was interested in

education and became an education major after the incident. She conceded




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that certain convictions or reports of misbehavior, such as indecently exposing

herself, could disqualify her from becoming a teacher. Id. at 205.

      Appellant also testified at trial. Appellant admitted that he was with the

complainant before the incident in question. According to Appellant, he and

the complainant met on the street, and they engaged in small talk while

walking together across campus. Once they were outside the parking garage,

he and the complainant began kissing and groping each other.          Appellant

testified that the complainant suggested they “hang out” without worrying

about a relationship. N.T., 7/21/17, at 29-30. They then climbed into the

parking garage though the window in the concrete wall.

      Appellant testified that while they were inside the parking garage, the

complainant asked him to hold her phone because it would not fit in the

pockets of her shorts. The complainant then handed him her phone, which he

placed in his pocket.   Appellant stated that he and the complainant began

kissing while they were by the garage door. The complainant pulled her top

down to show him her pierced nipple.       According to Appellant, he and the

complainant agreed to “hook up,” which Appellant believed meant having

sexual intercourse. Id. at 36. Throughout his testimony, Appellant suggested

that the complainant took the initiative throughout the incident. Appellant

further indicated that the complainant pointed in the direction of the two cars

and suggested they move to that area.

      Appellant testified that while he and the complainant were between the

two cars, Ms. Doherty interrupted them just as the complainant started to pull

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down her shorts. Appellant asserted that he and the complainant were both

standing, and he was fully clothed, standing behind the complainant.

Appellant denied choking or striking the complainant or otherwise forcing her

to perform any sexual act. Appellant also denied that any sexual intercourse

occurred during the incident.

      Appellant testified that he and the complainant agreed to part ways

when they saw yellow lights flashing from a car. He fled when he sensed

someone approaching him. As he was exiting the parking garage, he heard

the complainant yell out for her phone and state that he stole her phone. Once

outside, Appellant dropped the complainant’s phone in the grass by the

parking garage.

      In his arguments to the jury, Appellant asserted that the complainant

was a willing participant in their interactions and voluntarily handed him her

phone for him to hold as they reached the garage door. Appellant challenged

the complainant’s credibility and her claims that he assaulted her. Appellant

specifically referred to the surveillance video and the absence of any evidence

that he left DNA on the complainant.

      Appellant also emphasized that Ms. Doherty was the first person to use

the term “rape.” He argued that Ms. Doherty misconstrued the incident and

only assumed that she saw “a rape.” Appellant suggested that Ms. Doherty’s

misunderstanding tainted the complainant’s recollection of events, as well as

the police investigation.       Further, Appellant asserted that the police

investigation into the reported sexual assault was deficient and that the police

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failed to corroborate all of the complainant’s allegations before filing criminal

charges.

      The Commonwealth, in its argument to the jury, conceded that the initial

interactions between complainant and Appellant were consensual.              The

Commonwealth asserted that the nature of the interaction changed when

Appellant lowered his pants and exposed his penis, shortly before Appellant

and the complainant moved to the area between two cars.                      The

Commonwealth argued that once Appellant and the complainant moved

between the two cars, he compelled her to engage in sexual intercourse.

      As to the complainant’s phone, the Commonwealth acknowledged that

the surveillance video showed the complainant handing Appellant a phone as

they reached the garage doors. The Commonwealth argued that the phone

seen on the surveillance video was Appellant’s phone and not the

complainant’s. Further, the Commonwealth argued that Appellant, at some

time before assaulting the complainant between the two cars, took the

complainant’s phone to prevent her from calling for help.

      At the conclusion of trial, the jury found Appellant guilty of two counts

of attempted rape and one count of indecent assault—without consent. The

jury acquitted Appellant of nine other sexual offenses and the one count of

theft related to the complainant’s phone.

      On October 25, 2017, the trial court sentenced Appellant to four to ten

years’ imprisonment.    The trial court determined that Appellant was not a

sexually violent predator and ordered him to register as a tier-three sexual

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offender.   The trial court ordered restitution in the amount of $582.99 to

replace the complainant’s phone.

      Appellant filed a timely notice of appeal and complied with the trial

court’s order to file and serve a Pa.R.A.P. 1925(b) statement. The trial court

filed a Rule 1925(a) opinion.

      Appellant presents the following issues for this Court’s review:

      [1]. Whether, following the filing of two separate motions by
      [Appellant’s] counsel, requesting an in camera hearing and
      evidentiary hearing, pursuant to the requirements of
      Commonwealth Rape Shield statute, the trial court committed
      impermissible errors by never granting [Appellant’s] counsel’s
      separate written requests for a hearing and excluding any
      reference to specific text messages, offered to impeach [the
      complainant]’s credibility, thus excluding the offered text
      messages from the trial record.

      [2]. Whether, following the granting of an in camera review, the
      trial court committed impermissible error by excluding from the
      trial record as irrelevant and a collateral matter, any fact or
      reference to the personnel file of former University Detective
      Rolland Walker, III, who prior to his employment separation, was
      the affiant and officer responsible for the filing and investigation
      of this matter.

      [3]. Whether the trial court committed impermissible error by
      excluding from the trial record as irrelevant, any reference that
      the eyewitness, who was the first person to allege that a “rape”
      occurred, previously approached police about having been raped
      in the vicinity of campus, at an earlier point during the academic
      year.

      [4]. Whether the trial court erred in compelling Appellant to pay
      restitution for a replacement mobile phone after a jury acquitted
      Appellant of all theft-related offenses and conducted no inquiry
      into Appellant’s ability to make restitution.

Appellant’s Brief at 6-7.



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     Appellant’s first three issues focus on the trial court’s order granting the

Commonwealth’s motion in limine. Our standard of review is as follows:

     When reviewing the denial of a motion in limine, we apply an
     evidentiary abuse of discretion standard of review. The admission
     of evidence is committed to the sound discretion of the trial court
     and our review is for an abuse of discretion.

Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa. Super. 2018) (citations

omitted), appeal denied, 197 A.3d 1180 (Pa. 2018).            The Pennsylvania

Supreme Court has emphasized:

     An appellate court will not find an abuse of discretion “based on a
     mere error of judgment, but rather . . . where the [trial] court
     has reached a conclusion which overrides or misapplies the law,
     or where the judgment exercised is manifestly unreasonable, or
     the result of partiality, prejudice, bias or ill-will.” Importantly, an
     appellate court should not find that a trial court abused its
     discretion merely because the appellate court disagrees with the
     trial court’s conclusion. Indeed, “when reviewing the trial court’s
     exercise of discretion, it is improper for an appellate court to ‘step[
     ] into the shoes’ of the trial judge and review the evidence de
     novo.”

Commonwealth v. Gill, 206 A.3d 459, 466-67 (Pa. 2019) (citations

omitted).

     Generally, “[a]ll relevant evidence is admissible, except as otherwise

provided by law. Evidence that is not relevant is not admissible.” Pa.R.E.

402. “Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. However, the trial court

“may exclude relevant evidence if its probative value is outweighed by a



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danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”    Pa.R.E. 403.     “The credibility of a witness may be

impeached by any evidence relevant to that issue, except as otherwise

provided by statute or these rules.” Pa.R.E. 607(b).

      Moreover,

      [t]he Confrontation Clause in the Sixth Amendment to the United
      States Constitution provides that all criminal defendants enjoy
      “the right to confront and cross-examine adverse witnesses.”
      Moreover, “the exposure of a witness’ motivation in testifying is a
      proper and important function of the constitutionally protected
      right of cross-examination.”

      Although the right of cross-examination is a fundamental right, it
      is not absolute. The trial court may place reasonable limits on
      defense counsel's cross-examination of a prosecution witness
      “based on concerns about, among other things, harassment,
      prejudice, confusion of the issues, the witness’ safety, or
      interrogation that is repetitive or only marginally relevant.”
      “Generally speaking, the Confrontation Clause guarantees an
      opportunity for effective cross-examination, not cross-
      examination that is effective in whatever way, and to whatever
      extent, the defense might wish.”

Commonwealth v. Rosser, 135 A.3d 1077, 1087-88 (Pa. Super. 2016) (en

banc) (citations and footnote omitted).

      In his first issue, Appellant claims that the trial court erred by granting

the Commonwealth’s motion in limine to exclude the complainant’s text

messages. Appellant focuses on five messages sent by the complainant to

third parties before the incident in question. According to Appellant, those

messages indicated that the complainant enjoyed the attention she received


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from her body piercing and included statements regarding “rough sex,” being

choked, and her preference for sexual partners of the same race as Appellant.

Appellant’s Brief at 16, 19, 30.

      Appellant asserts that the admission of these messages was necessary

to impeach the complainant’s allegations that a sexual assault occurred,

corroborate his version of the events, establish his state of mind, and rebut

the Commonwealth’s theory of the case.         Id. at 16-17, 18-19 (discussing

Commonwealth v. Reed, 644 A.2d 1223 (Pa. Super. 1994) (plurality)), 25-

26. Additionally, Appellant asserts that the Rape Shield Law should not have

precluded messages that did not relate to the complainant’s prior sexual

conduct. Id. at 16-17. Lastly, Appellant argues the trial court should have

held an in camera hearing before granting the Commonwealth’s motion in

limine.

      The relevant version of the Rape Shield Law stated:

      (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 make findings on the
      record as to the relevance and admissibility of the proposed
      evidence pursuant to the standards set forth in subsection (a).

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18 Pa.C.S. § 3104(a)-(b) (subsequently amended eff. Aug. 27, 2019).

      “The purpose of the Rape Shield Law is to prevent a sexual assault trial

from denigrating into an attack upon the victim’s reputation for chastity.”

Commonwealth v. Killen, 680 A.2d 851, 853 (Pa. 1996) (citation omitted).

“Moreover, “[t]he Rape Shield Law is intended to exclude irrelevant and

abusive     inquiries   regarding   prior   sexual   conduct   of   sexual   assault

complainants.” Commonwealth v. Jerdon, ___ A.3d ___, 2019 PA Super

202, 2019 WL 2724330 at *4 (Pa. Super. July 1, 2019) (citations omitted).

      Under Section 3104(b), a defendant must initially provide “a specific

proffer of exactly what evidence he or she seeks to admit and precisely why

it is relevant to the defense.” Commonwealth v. Burns, 988 A.2d 684, 691

(Pa. Super. 2009) (citation omitted).           Thereafter, “the trial court must

determine if the proffered reason for introduction of past sexual conduct

evidence is mere speculation or conjecture. If the proffered evidence is not

speculation or conjecture, the trial court must conduct an in camera hearing.”

Commonwealth v. Palmore, 195 A.3d 291, 295 (Pa. Super. 2018) (citations

omitted).

      This Court has stated that

      [e]vidence that tends to impeach a witness’ credibility is not
      necessarily inadmissible because of the Rape Shield Law. When
      determining the admissibility of evidence that the Rape Shield Law
      may bar, trial courts hold an in camera hearing and conduct a
      balancing test consisting of the following factors: “(1) whether the
      proposed evidence is relevant to show bias or motive or to attack
      credibility; (2) whether the probative value of the evidence
      outweighs its prejudicial effect; and (3) whether there are


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        alternative means of proving bias or motive or to challenge
        credibility.”

        As such, evidence of a claimant’s sexual history may be admissible
        if “the evidence is relevant to exculpate the accused, more
        probative than prejudicial, and non-cumulative in nature.”

Jerdon, 2019 WL 2724330 at *4 (citations omitted).

        Regarding consent, “evidence cannot be used to bolster a consent

defense when the admitted purpose of the evidence is to prove that the victim

acted    in   conformity   with   past   behavior   on   the   date   in   question.”

Commonwealth v. Guy, 686 A.2d 397, 401 (Pa. Super. 1996). Additionally,

“this [C]ourt has held that evidence of past sexual conduct by the victim with

third persons is of little relevance to the issue of consent between the victim

and a defendant when the victim and defendant did not have a prior sexual

relationship.” Commonwealth v. Cramer, 195 A.3d 594, 603 (Pa. Super.

2018) (citation omitted).

        In Reed, the defendant alleged that the complainant told him that she

had sex with his son shortly before the alleged sexual assault. Reed, 644

A.2d at 1225.      The trial court precluded the defendant from asking the

complainant if she had made the statement. Id. at 1230. This Court, in a

three-judge panel with two judges concurring in result, concluded that the

defendant was entitled to a new trial based on this and other rulings by the

trial court. Id. at 1232.

        In its discussion of the Rape Shield Law, the Reed Court reasoned that

the purposes of defendant’s proffer of the complainant’s statement were



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separable.      Id. at 1230-31.     The Court concluded that Rape Shield Law

prohibited the defendant from using the statement to prove the fact asserted

therein, that is, that she had sex with his son. Id. at 1230-31. However, the

Court determined that the defendant was entitled to examine the complainant

as to whether she made the statement to the defendant. The Court reasoned

that the fact that the complainant made the statement could lend “credibility

to [the defendant’s] story” and help “explain [his] state of mind.” Id. at 1231.

The Court emphasized that evidence that the complainant simply made the

statement to the defendant did not implicate the Rape Shield Law’s purpose

of precluding evidence “that the victim’s promiscuity proves that she ‘asked

for it.’” Id.

      Instantly, we find no merit to Appellant’s argument that Reed should

control. At the outset, Reed was a plurality decision and has no precedential

value. See Commonwealth v. Hurst, 532 A.2d 865, 869 (Pa. Super. 1987).

In any event, Appellant’s proffer involved statements made to third parties.

Appellant did not know the complainant before this incident, and there was no

indication that Appellant was aware of the complainant’s preferences or prior

conduct with other parties. See Cramer, 195 A.3d at 603. Appellant did not

allege that the complainant expressed any of sentiments in her messages to

him during the incident.       Therefore, to the extent Reed is persuasive

authority, it is distinguishable.

      Furthermore, there was no dispute that the interactions between

Appellant and the complainant were consensual for the majority of the time

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they were by the garage doors. This included Appellant’s testimony that the

complainant voluntarily showed Appellant her pierced nipple.       As to their

interactions between the two cars, Appellant denied choking the complainant

or otherwise physically coercing her to engage in any sexual activity.

Appellant further denied that any intercourse occurred when he and the

complainant were between the two cars.

      Therefore, the record supports the trial court’s conclusion that the

complainant’s messages would not impeach her testimony.               Instead,

Appellant’s proffer suggested that the complainant consented based on her

statements regarding her prior conduct and sexual preferences. Accordingly,

Appellant’s proffer was irrelevant and sought to admit “the exact type of

evidence that the Rape Shield Law was designed to exclude.”        See Order,

7/10/17, at n.1, 3; Guy, 686 A.2d at 401.

      In sum, we discern no error in the trial court’s ruling to grant the

Commonwealth’s motion in limine as to the complainant’s text messages. See

Kane, 188 A.3d at 1229. Appellant’s contention that the trial court abused

its discretion in balancing the interests of the Rape Shield Law against his

constitutional rights of confrontation also lack merit. See Jerdon, 2019 WL

2724330 at *4; accord Rosser, 135 A.3d at 1087-88.            Lastly, because

Appellant has not shown that his proposed evidence was admissible, he has

not demonstrated any reversible error in the trial court’s decision to rule on

his proffer without a formal in camera hearing. Therefore, no relief is due.




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      In his second issue, Appellant argues that the trial court erred in

excluding evidence from Detective Walker’s personnel file.         By way of

background to this claim, Detective Walker was the lead investigator in this

case and prepared the affidavit of probable cause in support of the criminal

complaint filed on April 1, 2016.

      Appellant issued numerous subpoenas on West Chester University in

February 2017 and filed a motion requesting a review of Detective Walker’s

personnel file.   According to Appellant, discovery was necessary based on

allegations that Detective Walker mistreated minorities. Following a hearing,

Appellant and West Chester University attempted to come to an agreement

on the scope of the searches of its records.

      On March 24, 2017, West Chester University filed a motion to file

documents under seal. In its motion, the university indicated that its search

resulted in over 1,200 pages of documents. On April 25, 2017, the trial court

granted the university’s motion. The trial court directed that it would review

the documents and determine the appropriate procedure for Appellant and the

Commonwealth      to   review   the   documents.     Order,   4/25/17,      at   2

(unpaginated).

      As noted above, the Commonwealth filed its motion in limine seeking,

in part, to preclude Appellant from referencing Detective Walker’s personnel

file. The Commonwealth asserted:

      [Appellant] may seek to admit Detective Walker’s personnel
      records, which contain prior instances of alleged racial and gender
      discrimination. There is no nexus between the incidents contained

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      in Detective Walker’s personnel file and the allegations of rape in
      this case. Therefore, the Commonwealth seeks to preclude its
      admissibility under Rules 401 and 404(b).

Commonwealth’s Mot. in Limine, 6/12/17, at 5.

      At the hearing on June 19, 2017, the Commonwealth maintained that

there was no nexus between the allegations contained in Detective Walker’s

personnel file and the charges against Appellant. N.T., 6/19/17, at 12. The

Commonwealth asserted that Detective Walker’s role in the investigation was

limited and that “most of the investigation was done by other officers.” Id.

at 13.    The Commonwealth further stated: “Detective Walker had limited

contact with [Appellant].    He did not speak with [Appellant].      He did not

question [Appellant]. He didn’t see [Appellant] prior to arrest.” Id. at 12-13.

         Appellant’s counsel disagreed and argued that Detective Walker

“start[ed] with the affidavit of probable cause which initiated” the entire case

against Appellant. Id. at 28. Appellant’s counsel claimed that the detective’s

“thumbprint [was] enmeshed in the entire case.” Id. Appellant’s counsel,

however, noted that he was required to “tread very lightly” in light of the trial

court’s sealing order. Id. As indicated above, the trial court scheduled an in

camera hearing to hear additional arguments and facts, but it is unclear

whether a formal hearing was held.

      The trial court, in its July 10, 2017 order, granted the Commonwealth’s

motion in limine as to Detective Walker’s personnel file.        The trial court

concluded that Detective Walker’s prior behavior did not relate to Appellant’s

charges or Detective Walker’s motive to fabricate. Order, 7/10/17, at n.1, 4.

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The trial court noted that Appellant’s counsel had “ample opportunity” to

review the personnel file. Id.

        In his Rule 1925(b) statement, Appellant challenged the trial court’s

decision to exclude evidence regarding Detective Walker.         Appellant’s Rule

1925(b) Statement at ¶ 3.               Appellant also raised a claim that the

Commonwealth committed a Brady4 violation by withholding evidence

favorable to the defense and material to his guilt or punishment. Id. at ¶ 5.

The trial court concluded that it properly resolved Appellant’s evidentiary issue

and that Appellant’s Brady issue was waived and, in any event, meritless.

        On appeal, Appellant initially notes that the trial court received a file

consisting of over 1,200 pages. Appellant’s Brief at 33. Appellant claims that

the trial court’s decision to exclude the entire report lacked a “fact-based

rationale.” Id. at 34. Appellant suggests that the trial court misapplied the

relevant case law and fashioned a new rule requiring a defendant to file a

disciplinary complaint against an officer before information in a personnel file

could be deemed relevant. Id. at 36 (discussing Commonwealth v. Akrie,

159 A.3d 982 (Pa. Super. 2017)). Appellant adds that in the cases relied on

by the trial court, at least some evidence from an officer’s personnel file was

admitted or should have been admitted at trial. See id. at 34-35.

        Appellant further emphasizes that the entire police investigation into the

complainant’s report of a sexual assault was flawed.          He asserts Officer

____________________________________________


4   Brady v. Maryland, 373 U.S. 83 (1963).

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Rychlak interviewed the complainant with Ms. Doherty present and Ms.

Doherty was the first person to characterize the incident as a rape. Id. at 37.

He further notes that Sergeant Irons missed key details when reviewing the

surveillance video from the night in question, which Detective Walker failed to

correct when preparing the affidavit of probable cause. Id. at 39. Appellant

contends that information in Detective Walker’s disciplinary file could be

relevant because the detective “exercised direct supervisory authority over all

law enforcement officers involved. Further, Walker was tasked with training

these responding officers.” Id. However, Appellant does not assert that he

had any personal contact with Detective Walker. Appellant also does not refer

to any portion of the record indicating that Detective Walker directly

supervised Officer Rychlak’s or Sergeant Irons’s initial investigations.

      Additionally, Appellant asserts that the Commonwealth initially misled

him regarding the circumstances under which Detective Walker left the West

Chester University Police Department. Id. at 35. Appellant also claims that

the trial court denied him the opportunity to make an evidentiary record prior

to trial. Id. at 36.

       This Court has discussed the admissibility of an officer’s disciplinary

history as follows:

      The pertinent case law permits a police witness to be cross-
      examined about misconduct as long as the wrongdoing is in some
      way related to the defendant’s underlying criminal charges and
      establishes a motive to fabricate. Commonwealth v. Peetros,
      . . . 535 A.2d 1026 ([Pa.] 1987) (police witness had been demoted
      after it was discovered he repeatedly took bribes; defendant was
      improperly restricted from impeaching him with this evidence

                                     - 22 -
J-S32024-19


     since it bolstered entrapment defense in defendant’s bribery
     prosecution); Commonwealth v. Dawson, . . . 405 A.2d 1230
     ([Pa.] 1979) (police officer was under investigation at trial and
     had been demoted for beating defendant’s co-defendant;
     defendant should have been permitted to question officer about
     the matter since it provided officer with motive to obtain
     conviction against defendant as well as to fabricate fact that
     defendant had confessed); Commonwealth v. Sullivan, . . . 402
     A.2d 1019 ([Pa.] 1979) (police witness faced suspension based
     upon outcome at defendant’s trial and defendant should have
     been allowed to explore that matter at his trial); Commonwealth
     v. Shands, . . . 487 A.2d 973 ([Pa. Super.] 1985) (defendant
     awarded new trial because he had not been permitted to impeach
     officer with fact that he was part of group of police officers who
     were racially biased, made false arrests, and perjured themselves
     in criminal prosecutions).

     However, if the prior police behavior is unrelated to the present
     matter and irrelevant, the trial court is permitted to restrict
     questioning on the prior incident.           Commonwealth v.
     Boczkowski, . . . 846 A.2d 75 ([Pa.] 2004) (fact that police
     witness withheld evidence in prior case was not relevant because
     there was no evidence of withholding evidence in case at hand);
     Commonwealth v. Bright, 420 A.2d 714 ([Pa. Super.] 1980)
     (defendant could not impeach police officer with potential
     disciplinary action for excessive use of force by different officer
     since that cross-examination had no relationship to case in
     question); see also Commonwealth v. Guilford, 861 A.2d 365,
     369 (Pa. Super. 2004) (quoting Bright, [420 A.2d] at 716) (“a
     witness may not be contradicted on ‘collateral’ matters, ... and a
     collateral matter is one which has no relationship to the case at
     trial.”).

Commonwealth v. Bozyk, 987 A.2d 753, 757 (Pa. Super. 2009).

     Instantly, the trial court concluded:

     Based upon the court’s in camera review of the [Detective
     Walker’s personnel file], and following the argument of counsel,
     the court concludes that the facts detailed in Detective Walker’s
     file are “unrelated to the present matter and irrelevant.” The
     alleged conduct by Detective Walker outlined in the file does not
     have any direct relationship to his conduct in the investigation in
     this case. No part of the file, nor any other evidence, indicates

                                    - 23 -
J-S32024-19


      that any of Detective Walker’s prior behavior “is in some way
      related to [Appellant’s] underlying criminal charges and
      establishes a motive to fabricate.” As no nexus exists between
      the conduct alleged in Detective Walker’s personnel file and the
      facts of the instant case, it is irrelevant pursuant to Pa.R.E. 401
      and the Commonwealth’s motion to exclude must be granted.

Order, 7/10/17, at n.1, 4.

      As indicated above, the parties had an opportunity to review Detective

Walker’s personnel file in camera.       Appellant also had a full and fair

opportunity to cross-examine Officer Rychlak and Sergeant Irons regarding

the alleged flaws in their investigations into the complainant’s allegations.

Furthermore, Appellant’s identity as the alleged perpetrator of the assault was

not in dispute.    The primary issue at trial was the credibility of the

complainant’s testimony against Appellant’s testimony regarding the events

inside the garage and, in particular, between the two cars.

      Under these circumstances, we agree with the trial court’s conclusion

that Appellant’s proffer was not relevant. Appellant does not show how any

specific instance of the Detective Walker’s mistreatment of minorities related

to the investigation or Appellant’s treatment as a suspect in this case. See

Bozyk, 987 A.2d at 757. Moreover, Appellant does not establish a nexus

between the police investigation and a fair determination of the credibility of

the complainant’s testimony. See id. Therefore, Appellant’s proffer based on

Detective Walker’s alleged misconduct was too speculative, and we find no




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J-S32024-19



abuse of discretion in the trial court’s ruling.5 See Rosser, 135 A.3d at 1087-

88; Kane, 188 A.3d at 1229.

       In his third issue, Appellant claims that the trial court erred in excluding

evidence that Ms. Doherty, the independent witness, previously filed a police

report alleging she was sexually assaulted. Appellant insists Ms. Doherty was

the first person to describe the incident as a “rape.” Appellant’s Brief at 20.

As at trial, Appellant argues that Ms. Doherty misunderstood the situation in

the parking garage, tainted the complainant’s recollection of the incident, and

triggered the faulty police investigation into the complainant’s allegations of a

sexual assault.

       Appellant now contends that “[d]ocumented police reports, made to

another law enforcement agency, substantiate that during the same academic

year, M[s.] Doherty filed a prior, unfounded rape allegation.” Id. Appellant

compares the need to cross-examine Ms. Doherty to the need to impeach a

complainant’s testimony with evidence of a prior false report.         Id. (citing

Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. 1992)). Appellant further

asserts that he was entitled to call the officers who investigated Ms. Doherty’s

prior report to demonstrate that her report was unfounded.

____________________________________________


5 To the extent Appellant raises a Brady claim based on the Commonwealth’s
alleged misrepresentations regarding Detective Walker’s departure from the
West Chester University Police Department, we agree with the trial court that
this claim was not preserved in the trial court. We add, however, that
Appellant does not contest the trial court’s determination that he had an
adequate opportunity to review Detective Walker’s personnel file in camera
before trial.

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J-S32024-19



      Instantly, the trial court addressed this issue as follows:

      Following exhaustive research, the court is unable to locate any
      case law that opines upon the relevance of possible bias on the
      part of an eyewitness due to being a prior victim of a crime, not
      to mention the same crime as the accused. However, based upon
      the general rules of relevance, evidence of Ms. Doherty’s prior
      alleged assault and her failure to press charges is not relevant to
      the determination of this case. . . . The only possible relevance is
      an as-yet unsupported inference that Ms. Doherty’s prior
      experiences must have clouded her judgment in assessing what
      she saw in the garage that night. The details of Ms. Doherty’s
      prior incident, or whether or not she chose to prosecute the case,
      do not have a tendency to prove [Appellant]’s guilt or innocence
      in this case. . . . Assuming arguendo that Ms. Doherty’s prior
      alleged assault is relevant and creates a bias or motive to
      fabricate, its probative value is outweighed by its danger of
      misleading the jury. Admitting evidence of the prior incident
      creates the risk of a trial within a trial, wherein Ms. Doherty’s
      conduct seven months prior to this incident becomes the focus of
      the jury’s attention.

Order at n.1, 4-5.

       Appellant, for the first time on appeal, suggests he was entitled to call

the officers who investigated Ms. Doherty’s prior report that she was sexually

assaulted. However, Appellant has failed to develop any record to suggest

that the officers would testify that Ms. Doherty’s prior report was, in fact, false

or unfounded. Therefore, Appellant failed to demonstrate that his proffer was

relevant to impeach Ms. Doherty’s testimony.

      In any event, following our review of the record, the trial court was

entitled to find that Appellant’s proffer was irrelevant because Appellant only

established that Ms. Doherty’s prior sexual assault allegation did not give rise

to a prosecution. See Order at n.1, 4; Gill, 206 A.3d at 466-67. We also find


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J-S32024-19



no abuse of discretion in the trial court’s balancing of the possibility of

confusing the jury against the relevance of Appellant’s proffer and Appellant’s

right to confront Ms. Doherty.    See Pa.R.E. 402, 403; Kane, 188 A.3d at

1229. Accordingly, Appellant’s issue fails. See Rosser, 135 A.3d at 1087-

88; Kane, 188 A.3d at 1229.

      In his last issue, Appellant claims that the trial court erred in ordering

restitution to replace the complainant’s phone. Appellant emphasizes that he

was acquitted of theft, and his convictions for guilty of attempted rape and

indecent assault did not relate to an unlawful taking of the complainant’s

phone. He further suggests that the trial court erred in failing to consider

Appellant’s ability to pay.

      It is well settled that a challenge to the legality of a sentence raises a

question of law. Commonwealth v. Smith, 956 A.2d 1029, 1033 (Pa. Super.

2008) (en banc). In reviewing this type of claim, our standard of review is de

novo and our scope of review is plenary. Commonwealth v. Childs, 63 A.3d

323, 325 (Pa. Super. 2013).       “An illegal sentence must be vacated[.]”

Commonwealth v. Ramos, 197 A.3d 766, 769 (Pa. Super. 2018) (citation

and quotation marks omitted).

      Section 1106 of the Crimes Code governs the imposition of restitution

as part of a sentence and provides, in relevant part:

      § 1106. Restitution for injuries to person or property

      (a)   General rule.—Upon conviction for any crime wherein:



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J-S32024-19


           (1) property has been stolen, converted or otherwise
           unlawfully obtained, or its value substantially decreased
           as a direct result of the crime . . . .

                                     *     *      *

      (c) Mandatory restitution.—

           (1) The court shall order full restitution:

              (i) Regardless of the current financial resources of the
              defendant, so as to provide the victim with the fullest
              compensation for the loss. . . .

18 Pa.C.S. § 1106(a)(1), (c)(1)(i). This Court has stated that Section 1106

“applies only for those crimes to property or person where there has been a

loss that flows from the conduct which forms the basis of the crime for which

a defendant is held criminally accountable.” Commonwealth v. Zrncic, 167

A.3d 149, 152 (Pa. Super. 2017) (citation and quotation marks omitted).

      In Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008) (en

banc), the defendant was charged with numerous sexual offenses and

harassment after the complainant reported that he raped the complainant on

her family’s couch. Barger, 956 A.2d at 460. A jury acquitted the defendant

of all charges and the trial court separately found the defendant guilty of

harassment based on evidence that the defendant slapped the complainant.

Id. At sentencing, the trial court ordered defendant to pay restitution for the

replacement of the couch. Id.

      The Barger Court vacated the imposition of restitution and reasoned as

follows:

      The trial court convicted [the defendant] of the offense of
      harassment for slapping [the complainant]. [The complainant]

                                         - 28 -
J-S32024-19


      testified at trial that the couch was replaced because “[that was]
      where I was raped and we didn’t want that in my house.” Even
      assuming that there was a loss of property within the meaning of
      Section 1106, there was no direct nexus between the crime for
      which [the defendant] was convicted and the loss of the couch, as
      Section 1106 requires. Accordingly, Section 1106 provided no
      authority to the trial court to include restitution for the couch in
      [the defendant’s] sentence. Because the trial court sentenced
      [the defendant] to make restitution without the statutory
      authority to do so, we hold that the restitution portion of [the
      defendant’s] sentence is illegal. “An illegal sentence must be
      vacated.”

Id. at 465 (citations omitted).

      In Zrncic, the defendant had a sexual relationship with the fifteen–year-

old complainant, whom he contacted both in person and electronically.

Zrncic, 167 A.3d at 151. The defendant was initially charged with involuntary

deviate sexual intercourse, unlawful contact with a minor, aggravated

indecent assault, corruption of minors, and indecent assault. Id. As part of

the investigation, the police seized the complainant’s laptop computer. Id. It

was undisputed that the police took the computer to investigate the

defendant’s unlawful contact with the complainant, but the computer did not

contain evidence related to aggravated indecent assault. Id. at 152.

      The defendant ultimately pled guilty to one count of aggravated indecent

assault, and the remaining charges, including the count of unlawful contact,

were nolle prossed.   Id.   at 151.    As part of the sentence, the trial court

ordered the defendant to pay $1,038.77 to the complainant’s mother for the

replacement of the complainant’s computer. Id. The trial court suggested,

in part, that restitution for the computer was proper because the computer


                                      - 29 -
J-S32024-19



contained evidence related to the defendant’s unlawful contact with the

complainant and the defendant. Id. at 153. The trial court further suggested

that, but for the defendant’s favorable plea agreement, the defendant would

have faced charges of unlawful contact. Id.

      On appeal, the Zrncic Court vacated the restitution for the computer.

Id. at 150, 153. The Court concluded that the loss of the computer did not

flow from the crime for which the defendant was convicted, reasoning that

      the legislature does not authorize a trial court to impose
      restitution based only on the trial court’s sympathies for the
      victim. Rather, Section 1106 requires a “direct nexus” between
      the loss claimed and the crime “for which [the defendant] was
      convicted[.]”

      Nor are we persuaded by the trial court’s conclusion that a “direct
      causal connection” exists between the loss of the laptop and the
      charge of aggravated indecent assault because “[the defendant]
      was initially charged with unlawful contact with a minor, and but
      for his plea agreement he would still have been faced with that
      charge[.]” Being “faced with [a] charge” is insufficient to justify
      an award of restitution, and the trial court may not award
      restitution based on its conjecture that a jury would have found
      [the defendant] guilty of the charge had the case gone to trial.
      Whatever may have happened in the instant case in the absence
      of a plea agreement, [the defendant] was not convicted of
      unlawful contact with a minor.

Id. at 153 (citations omitted) (some capitalization omitted)

      Initially, we note that Appellant’s argument that the trial court failed to

consider his ability to pay when imposing restitution is meritless.      See 18

Pa.C.S. § 1106(c)(1); Commonwealth v. Rush, 909 A.2d 805, 811 (Pa.

Super. 2006). Therefore, we focus on Appellant’s claim that the jury’s verdict

did not authorize restitution for the complainant’s phone.

                                     - 30 -
J-S32024-19



      Instantly, the trial court concluded that the imposition of restitution

under Section 1106(a)(1) was proper. The trial court reasoned:

      The [complainant] provided her cell[]phone to [Appellant] while
      they were in the parking garage, and it remained in his possession
      during the attempted rape. [Appellant] then discarded it when he
      fled the scene, and a third party later found it, damaged beyond
      repair, on the ground near the garage. While [Appellant][ was
      found not guilty of theft by unlawful taking, 18 Pa.C.S. § 3921(a),
      that verdict only removes [Appellant]’s culpability for intending
      to deprive the [complainant] of cell[]phone. The fact that
      [Appellant] discarded the cell[]phone immediately after leaving
      the garage certainly may imply a lack of intent to deprive her of
      it. However, the fact remains that [Appellant] possessed the
      phone, his conduct led its damage.

Trial Ct. Op. at 7 (citations and some capitalization omitted) (emphasis in

original).

      Following our review, we conclude that the trial court erred in imposing

restitution for the replacement of the complainant’s phone. The jury acquitted

Appellant for the theft of the phone. See Zrncic, 167 A.3d at 151; Barger,

956 A.2d at 465. The Commonwealth did not separately charge Appellant

with damaging the complainant’s phone. Moreover, there was no evidence

suggesting that that the phone was damaged during the attempted rape or

indecent assault.

      Therefore, we are constrained to conclude that the record does not

support the trial court’s finding of a direct connection between the crimes for

which Appellant was convicted and the damage Appellant caused to the

complainant’s phone. Accordingly, the trial court’s imposition of restitution

for the replacement of the phone was not authorized by Section 1106(a)(1),

                                    - 31 -
J-S32024-19



and we must vacate that portion of the judgment of sentence as an illegal

sentence. See Barger, 956 A.2d at 465. Because vacating the restitution

order does not affect the overall sentencing scheme of the trial court, there is

no need to remand this case. See id.

      Judgment of sentence affirmed in part and vacated in part as to

restitution only. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/19




                                     - 32 -
