J-A15029-14



                                  2014 PA Super 225



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

K.S.F.

                            Appellant                   No. 3211 EDA 2013


               Appeal from the Order Entered October 28, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003335-2010


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                               FILED OCTOBER 08, 2014

        K.S.F. appeals from the order entered in the Court of Common Pleas of

Montgomery County reinstating his sentence following this Court’s remand

for an in camera hearing to determine admissibility of a Facebook post by

the complainant, K.S.F.’s minor stepdaughter (“Stepdaughter”).              After

careful review, we reverse and remand for a new trial.

        In August 2011, a jury convicted K.S.F. of the following sexual crimes

against Stepdaughter: four counts of involuntary deviate sexual intercourse

with a child;1 three counts of involuntary deviate sexual intercourse -


____________________________________________


1
    18 Pa.C.S. § 3123(b).
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complainant less than 16 years of age;2 four counts of statutory sexual

assault;3 five counts of indecent assault - complainant less than 13 years of

age;4 three counts of indecent assault - complainant less than 16 years of

age;5 and one count of corruption of a minor.6 Prior to trial, K.S.F. filed a

motion to access Stepdaughter’s two profiles on the social networking

website Facebook.       K.S.F. alleged one of Stepdaughter’s profiles contained

impeachable material, in which Stepdaughter described herself as a “virgin.”

At that time, K.S.F. could not access Stepdaughter’s postings due to privacy

settings. The trial court ruled the evidence inadmissible, stating:

        [E]vidence that Stepdaughter posted she was a “virgin,” fell
        within the ambit of the Rape Shield Law and that a teenage girl
        posting that she was a “virgin,” despite being sexually abused by
        her Stepfather[,] was a self-characterization that did not have
        significant enough probative value as to the credibility of her
        claimed abuse by [K.S.F.] to overcome the Rape Shield Law
        barrier.

Trial Court Opinion on Remand, 10/28/13, at 5.           See also Trial Court

Opinion, 7/13/12, at 8-13; 18 Pa.C.S. § 3104.

        Following his conviction, the court determined K.S.F. to be a sexually

violent predator, and sentenced him to an aggregate term of 12 to 24 years’
____________________________________________


2
    18 Pa.C.S. § 3123 (a)(7).
3
    18 Pa.C.S. § 3122.1.
4
    18 Pa.C.S. § 3126(a)(7).
5
    18 Pa.C.S. § 3126(a)(8).
6
    18 Pa.C.S. § 6301(a)(1).



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incarceration.    On direct appeal, this Court vacated and remanded,

instructing the trial court to hold an in camera hearing and apply the three-

prong balancing test outlined in Commonwealth v. Black, 487 A.2d 396,

401 (Pa. Super. 1985), after which the trial court could grant a new trial or

reinstate the judgment of sentence. See Commonwealth v. K.S.F., 2497

EDA 2011, slip op. at 20-26 (Pa. Super., filed April 12, 2013).

      The trial court held an in camera Black hearing on June 26, 2013.

Stepdaughter testified that when she wrote on Facebook that she had never

had sex before, she meant she had never had consensual sex.          The trial

court subsequently reinstated the judgment of sentence, and K.S.F. filed this

appeal.

      K.S.F. raises four issues for our review:

          1. Whether the statement made by Stepdaughter that she
             “had never had sex in her life” posted on Facebook prior to
             trial but subsequent to allegedly being forced to have sex
             with K.S.F. should have been admissible for impeachment
             purposes?

          2. Whether the trial court erred in determining that
             Stepdaughter’s privacy rights outweighed K.S.F.’s Sixth
             Amendment right to present a defense, especially in light
             of the fact that Stepdaughter posted a statement on
             Facebook for a large number of people to see?

          3. Whether the trial court invaded the province of the jury by
             determining the meaning of the Facebook post, failed to
             consider the entire context of the statement, and erred in
             ruling that the statement was unfairly prejudicial?




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          4. Whether the Commonwealth violated Brady v. Maryland,
             373 U.S. 479 (1984),7 by not disclosing the Facebook note
             to K.S.F. prior to trial?

       The first three claims all speak to the issue of whether the trial court

abused its discretion in determining the admissibility of the Facebook posting

at the Black hearing. We will therefore proceed with a discussion of the trial

court’s application of the three-factor Black test. As our disposition of this

case has the same effect as a successful Brady challenge, we need not

address K.S.F.’s claim under Brady.

       Our standard of review for admission of evidence of a victim’s prior

sexual conduct is as follows:

       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.




____________________________________________


7
  In Brady, the United States Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. A Brady violation occurs when: (1) the prosecutor has
suppressed evidence; (2) the evidence, whether exculpatory or impeaching,
is helpful to the defendant; and (3) the suppression prejudiced the
defendant. See Commonwealth v. Paddy, 800 A.2d 294, 305 (Pa. 2002);
see also Pa.R.Crim.P. 573.



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

Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa. Super. 1998))

(citations and quotations omitted).

      The Rape Shield Law provides as follows:

      § 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.

18 Pa.C.S. § 3104(a). Although the literal language of the Rape Shield Law

would appear to bar a wide range of evidence, courts have interpreted the

statute to yield to certain constitutional considerations implicating the rights

of the accused. See, e.g., Commonwealth v. Riley, 643 A.2d 1090, 1093

(Pa. Super. 1994) (right to cross-examine witnesses).

      Evidence that tends to impeach a witness’ credibility is not necessarily

inadmissible because of the Rape Shield Law.        Black, 487 A.2d at 401.

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)




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whether there are alternative means of proving bias or motive or to

challenge credibility.” Id.

      Here, it is not disputed that the relevancy prong from Black was

satisfied. See Trial Court Opinion on Remand, 10/28/13, at 7-8. However,

the trial court erred as a matter of law in weighing the probative value of the

evidence against the prejudice of its admission.

      In Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992), our

Supreme Court held “rules excluding evidence cannot be mechanistically

applied to abridge a defendant's right of confrontation by denying admission

of highly reliable and relevant evidence critical to his defense.” Id. at 701.

There, the defendant was accused of having sexual relations with his

underage stepdaughter.        Although defendant admitted to the relationship

after the victim had turned sixteen, he denied that it existed before that

date. The trial court would not permit the defendant to cross-examine the

victim about a statement in which she earlier said she had had one sexual

relationship during the relevant period with “an older man,” whom she

identified as a friend of her stepfather.       The Supreme Court reversed,

holding that the testimony was admissible for the purpose of impeachment.

In so holding, the court took into account a defendant’s Sixth Amendment

right to confront his accusers as well as his right to a fair trial through cross-

examination.

      In Commonwealth v. Johnson, 566 A.2d 1197 (Pa. Super. 1989),

this Court held “the Rape Shield Law is a bar to admission of testimony of

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prior sexual conduct involving a victim, . . . unless it has probative value

which is exculpatory to the defendant.” Id. at 1202. Here, the trial court

devotes substantial discussion to considering the meaning of the Facebook

posting and the potential prejudice to Stepdaughter, but fails to grasp fully

the probative value of the evidence sought to be admitted. The trial court

only   goes   as   far   as   to   say   that   the   statement   “is   probative   to

[Stepdaughter’s] credibility.” Trial Court Opinion on Remand, 10/28/13, at

11. The trial court fails to address the fact that were K.S.F. able to convince

the jury of Stepdaughter’s lack of credibility, the Commonwealth’s case

would be seriously undermined. Accordingly, the probative value of a prior

inconsistent statement in which Stepdaughter purports to deny prior sexual

conduct is critical.

       Further, the trial court’s finding that admission of Stepdaughter’s

Facebook posting would prejudice her is not consistent with the express

purpose of the Rape Shield Law, nor with the Black test. 487 A.2d at 401.

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 . . . [and] to exclude irrelevant and abusive inquiries regarding

prior sexual conduct of sexual assault complainants.”         Commonwealth v.

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

Northrip, 945 A.2d 198, 205 (Pa. Super. 2008) (finding no prejudice where

evidence did not attack reputation for chastity in way section 3104 designed

to protect). The Black Court’s express motivation for the test is to exclude

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relevant evidence that would “so inflame the minds of jurors that its

probative value is outweighed by unfair prejudice.” 487 A.2d at 401 (citing

Commonwealth v. Stewart, 450 A.2d 732, 734 (Pa. Super. 1982))

(quotation marks omitted).         A statement in which a victim claims to be a

virgin cannot reasonably be understood to prejudice her by smearing her

reputation for virtue and chastity, nor is it inflammatory.8      On the other

hand, the potential exculpatory value of the statement, as discussed above,

is substantial.

       In addition, the trial court erred in determining that the Facebook

posting meant that Stepdaughter had not had consensual sex only.          “The

purpose of [an in camera] hearing required by the Rape Shield Law is to

enable a trial court to determine whether tendered defense evidence of the

victim’s prior sexual activity is relevant and admissible.” Commonwealth

v. Baronner, 471 A.2d 104, 106 (Pa. Super. 1984). The trial court is not to

use the hearing to assess the credibility of the evidence sought to be

admitted. Id. Credibility determinations are to be made by the jury. Id.



____________________________________________


8
   K.S.F. devotes significant space in his brief on the issue of whether
Stepdaughter would be prejudiced by an invasion of her privacy rights were
the Facebook posting admitted. We fail to see the relevance of her general
right to privacy in this context. The Rape Shield Law was passed to prevent
a specific class of attacks against the character of victims in rape
prosecutions. It is not a bar against the admission of relevant evidence, the
disclosure of which invades a victim’s privacy, provided it does not involve
“past sexual conduct.”



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     Stepdaughter’s statement that she was a virgin could be interpreted to

mean that she had never had consensual sex.            This is, in fact, the way

Stepdaughter explained the Facebook posting at the Black hearing.           N.T.

Hearing, 6/26/13, at 12.       However, the Facebook posting could also be

interpreted to mean that she had never had any sex, including with K.S.F.

Whether Stepdaughter’s narrative was to be believed was a credibility

determination that should properly have been put before a jury.             See

Baronner, 471 A.2d at 106. For these reasons, the trial court abused its

discretion in determining that the prejudice to Stepdaughter outweighed its

probative value.

     The third prong of the Black test requires a consideration of

alternative means to impeach the victim’s credibility. Our jurisprudence is

scant on instances that have explored this factor in depth, however, several

cases are instructive.   In Commonwealth v. Weber, 675 A.2d 295, 302

(Pa. Super. 1996), rev’d on other grounds 701 A.2d 531 (Pa. 1997), this

Court found that the third prong was not satisfied where the evidence sought

to be admitted only added to a short list of evidence that tended to attack

the victim’s credibility. The Weber Court admitted the evidence, however,

because   it   also   tended   to   show   the   victim’s   motive.   Id.     In

Commonwealth v. Killen, 680 A.2d 851, 854 (Pa. 1996), our Supreme

Court held that suggestive statements made by the victim shortly after the

alleged sexual assault, in which she appeared jovial, were admissible, not to

show her promiscuous demeanor, but to undermine the credibility of her

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claims that she had been sexually assaulted.                The court noted that this

evidence did not speak to past behavior, but directly to the crime charged,

and therefore was not barred by the Rape Shield Law. Id.

       Here, the trial court determined that K.S.F. had adequate opportunity

to impeach Stepdaughter’s credibility without the Facebook posting. There

were   other   pieces   of   evidence    available     to    impeach     Stepdaughter’s

credibility.   Trial Court Opinion on Remand, 10/18/13, at 12; see also

Weber, 675 A.2d at 302.            However, nothing was as significant as

Stepdaughter’s explicit statement that the very acts that were at the heart

of the prosecution in fact may never have occurred. See Killen, 680 A.2d

at   854   (sexual   statements   relating       directly    to   the   alleged   assault

admissible). This calls into question whether the trial court fully considered

the value of this specific piece of evidence in the context of the final prong.

       The Black test is a balancing test. It is undisputed that the first prong

has been satisfied, and we find that the trial court has abused its discretion

in determining the second and third prongs. The balance undeniably weighs

in favor of admission of the Facebook posting.

       Having concluded the trial court abused its discretion in its application

of the test, we reverse the judgment of sentence and remand for a new trial.

       Reversed and remanded for new trial. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




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