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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

               v.


 ALBERT WILLIAMS

                    Appellant             :   No. 1563 MDA 2018
        Appeal from the Judgment of Sentence Entered April 27, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0005235-2017

BEFORE:     LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.:               FILED: JULY 22, 2019
     Albert Williams appeals from the judgment of sentence, entered in the
Court of Common Pleas of York County, following his conviction of second-

degree felony sexual assault.' After careful review, we affirm.

      On January 27, 2017, A.T.2 went to the M & M Lounge (Lounge) around

7:30 p.m.      A.T. consumed alcohol and made conversation with a few
individuals, including Williams. Williams exited the Lounge and walked to his

vehicle at 1:39 a.m. A.T. did not exit the Lounge until 2:15 a.m. Due to her
intoxication, fellow patron Samantha Ness assisted A.T.       Ness helped A.T.

into Ness' vehicle, at which time A.T. noticed Williams standing next to a
vehicle. Williams remained by his vehicle in the parking lot from the time he


' 18 Pa.C.S. § 3124.1.

2 Due to the nature of the charges in this case, this Court will be using the
victim's initials rather than her name.

   Former Justice specially assigned to the Superior Court.
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exited the Lounge at 1:39 a.m. until 2:25 a.m., when Ness drove out of the
Lounge parking lot. Williams immediately followed Ness in exiting the parking

lot and drove in the same direction.

         Ness arrived at A.T.'s home and helped her exit the vehicle. At the same

time, Williams exited his vehicle. Ness asked A.T. if she knew Williams; A.T.

was confused and gestured in a way that suggested she did. A.T. believed
that Ness and Williams knew each other, wanted a place hang out, and that

she was agreeing to let them use her home. Ness, however, left A.T. with
Williams and drove away. A.T.'s next memory is of awakening on the couch
while Williams was having vaginal intercourse with her.       A.T. attempted to
push Williams away, stating he was hurting her and she did not consent;
however, he was too strong. A.T. then remembers Williams fixing his shirt

cuffs.

         When A.T. was able to recall what happened the night before, she called

the crisis center at York Hospital and spoke with a representative from the
Shelter for Abused Women. At 4:50 a.m. on January 29, 2017, A.T. was

examined Oat York Hospital by Nurse Patti O'Brien. Nurse O'Brien testified

that A.T.'s entire vaginal area was tender with mild discharge. Two small
lacerations found on the vaginal wall were indicative of some type of trauma.

Nurse O'Brien collected DNA samples.

         On January 30, 2017, Detective Tiffany Pitts of the York City Police was

assigned to A.T.'s case. A.T. identified Williams on February 6, 2017, and

Detective Pitts obtained surveillance footage from the Lounge, as well as

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Williams' cell phone records. The resulting evidence enabled Detective Pitts

to place Williams at the Lounge and A.T.'s home on the night in question.

      On May 2, 2017, Detective Pitts conducted a recorded voluntary
interview with Williams. Williams first stated that he did not go to the Lounge

by himself, that he has never left the Lounge with a woman and that he always

leaves before 10:00 PM.    After learning A.T. had been examined, Williams
changed his story and said he could not remember if he had sex with anyone

after leaving the Lounge that night. Williams continued to change his story.

Upon learning Detective Pitts had video surveillance and cell phone records to

prove his whereabouts, Williams contributed a DNA sample and described a

consensual version of events. The sample matched the sperm found inside
A.T. and on her underwear. Williams claimed that A.T. never said "no," but
that he knew she was very intoxicated. He also admitted he had to "wake her

up" before departing, even though he had previously claimed he had left
immediately after the consensual sex.

      On March 15, 2018, following a jury trial, Williams was convicted of
second-degree felony sexual assault and acquitted on the charge of rape of

an unconscious victim. On April 27, 2018, Williams was sentenced to five to

ten years' incarceration, ordered to pay all costs, and was given 306 days'
credit for time served. Williams filed a post -sentence motion on the same
day, which was denied on August 24, 2018.




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      On September 21, 2018, Williams filed a timely notice of appeal,
followed by a court -ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Williams raises the following issue for our review:

      Did the trial court err in excluding evidence that the sexual assault
      complainant had previously made allegations of assault against
      other people than Albert Williams, and these allegations had not
      resulted in convictions?

Appellant's Brief, at 4.

      It is well settled that "[t]the admission of evidence is solely within the
discretion of the trial court, and a trial court's evidentiary rulings will be
reversed   on   appeal     only upon an     abuse    of that discretion."       See

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015). An abuse of
discretion occurs where the court has reached a conclusion that overrides or

misapplies the     law,    or where the judgment exercised           is   manifestly

unreasonable, or the result of partiality, prejudice, bias or ill -will. Id.
      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."    Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super.
2009). Its intention is to exclude irrelevant and abusive inquiries regarding

prior sexual conduct of sexual assault complainants.           Id.   One statutory
exception to the Rape Shield Law is the admission of evidence of past sexual

conduct with the defendant where consent is at issue. See 18 Pa.C.S. §
3104(a). The Rape Shield Law does not bar evidence of past sexual assault

allegations by the victim, but the question is whether the testimony is relevant

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and material under the traditional rules of evidence. See Commonwealth v.
Johnson, 638 A.2d 940 (Pa. 1994). The Rape Shield Law may not be used
to exclude relevant evidence showing witness' bias or to attack a witness'
credibility, but not all material evidence is necessarily admissible, as explained

in Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985):

      The balancing determination between probative value and unfair
      prejudice should be made by the trial court at an in camera
      hearing where the court should determine the following as a
      matter of record to be preserved for appellate review: (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
      alternative means of proving bias or motive to challenge
      credibility.

Id. at 401.
      During her interview, A.T. divulged that she "was once molested when
she was a child and there was a rape allegation at the age of 18." N.T.,
3/12/18, at 27.      Williams argues that this evidence, "A.T's history of
unfounded allegations of sexual assault[,]" bears directly on A.T.'s credibility
and, therefore, the court erred in excluding it. Appellant's Brief, at 17. The
trial court determined that the evidence showed no specific bias against
Williams and, therefore, was an irrelevant, collateral matter. We agree.
      Williams admitted to having sexual intercourse with A.T., and claimed
A.T. never said "no." Recorded Interview, 5/2/17, at 10:30:57. Throughout
the interview,   however, Williams states that he knew A.T. was very
intoxicated. Id. The issue, therefore, was consent. The evidence pertaining


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to previous accusations is not relevant to the issue of consent between
Williams and A.T. Furthermore, the proposed evidence is not probative of any

bias, hostility, or motive to seek retribution against Williams.
      Williams filed a motion in limine to allow the evidence of the previous
sexual assault allegations.3 N.T., 3/12/18, at 18. The trial court believed that

these prior allegations were relevant to A.T.'s credibility; however, the issue
was whether the evidence was admissible. Id. at 23.        The trial court stated

that impeaching credibility based on prior conduct or prior specific incidences

is not permissible; the court then underwent an analysis and application of
Black. Id. at 26-32. The court made the distinction that, although the Rape
Shield Law would not preclude the evidence, the evidence must "specifically

allege or show that the alleged victim has a bias against [Williams] or has
some motive to fabricate regarding [Williams], not just in general." Id. at 30.

We agree. The Rape Shield Law is inapplicable here. Evidence that A.T. had

been subject to previous sexual assaults would not reflect upon her reputation

for chastity. "To be a victim is not "conduct" of the person victimized. It would

be illogical to conclude that the Rape Shield Law intended to prohibit this type

of testimony." Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994).
      Williams relies on Commonwealth v. Dillon, 925 A.2d 131 (Pa. 2007),

to support his argument. His reliance, however, is misplaced. In Dillon, our



3 The court heard argument on the motion. Although the court did not hold
an in camera hearing, Williams agreed that the argument would suffice. N.T.,
3/12/18, at 33.
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Supreme Court held that evidence of defendant's physical abuse of the victim's

mother and brother, which intimidated the victim, was admissible at trial on
defendant's    charge   of   sex   offense   as   substantive   evidence   in   the

Commonwealth's case -in -chief to explain the victim's lack of prompt

complaint. The Court stated:


      [A] sexual assault prosecution oftentimes depends predominately
      on the victim's credibility, which is obviously affected by any delay
      in reporting the abuse. Revealing the circumstances surrounding
      an incident of sexual abuse, and the reasons for the delay, enables
      the factfinder to more accurately assess the victim's credibility.

Id. at 138-39. Delay in reporting, however, was not an issue here.

      We agree with the trial court's assessment. The mere fact that A.T.

indicated in her interview "that she was molested when she was a child and

was raped at the age of 18, has no bearing on whether the sexual intercourse

[Williams] had with [A.T.] was without her consent." Trial Court Opinion,

11/26/18, at 3. There was no evidence, other than the conduct that forms

the basis of the charges in this case, that A.T. was biased against or hostile

toward Williams or had a motive to seek retribution. The trial court properly

excluded the evidence of prior sexual assault claims. We find no abuse of

discretion. Woodard, supra.
      Judgment of sentence affirmed.




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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/22/2019




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