J-S21011-18
                                  2018 PA Super 246
 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                v.                          :
                                            :
                                            :
 DAROLD WILLIAM PALMORE                     :
                                            :
                      Appellant             :   No. 931 WDA 2017

               Appeal from the Judgment of Sentence June 7, 2017
                  In the Court of Common Pleas of Clarion County
               Criminal Division at No(s): CP-16-CR-0000086-2016

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

OPINION BY OLSON, J.:                            FILED SEPTEMBER 05, 2018

      Appellant, Darold William Palmore, appeals from the judgment of

sentence entered on June 7, 2017. Appellant’s primary contention on appeal

is that the trial court wrongly barred certain testimony from a sexual assault

victim under Pennsylvania’s Rape Shield Law, 18 Pa.C.S.A. § 3104. We hold

that the application of the Rape Shield Law in the particular circumstances of

this case violated Appellant’s Confrontation Clause rights.    As this was not

harmless error, we vacate Appellant’s judgment of sentence and remand for

a new trial.

      During the Fall 2015 semester, Appellant was a student at Clarion

University. One evening, he hosted a gathering in his dorm room where he

met K.H. (“Victim”). Approximately two weeks later, Appellant and Victim

were speaking in Victim’s dorm room.        Appellant forced himself on Victim,

kissed her, placed one hand under Victim’s shirt touching her breast, and
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placed one hand down Victim’s pants touching her vagina. Victim objected

throughout this assault.

        The Commonwealth charged Appellant via criminal information with

indecent assault,1 disorderly conduct,2 and harassment.3 Prior to trial,

Appellant moved in limine to permit introduction of Victim’s past sexual

conduct. At the conclusion of an in camera hearing, the trial court denied the

motion. During trial, Appellant moved for reconsideration of this decision and

the trial court denied that motion.      On October 11, 2016, a jury found

Appellant guilty of all three offenses. On May 25, 2017, at the conclusion of

an evidentiary hearing, the trial court designated Appellant a sexually violent

predator (“SVP”). On June 7, 2017, the trial court sentenced Appellant to an

aggregate term of 228 to 729 days’ imprisonment.           This timely appeal

followed.4

        Appellant presents four issues for our review:


1   18 Pa.C.S.A. § 3126(a)(1).

2   18 Pa.C.S.A. § 2709(a)(1).

3   18 Pa.C.S.A. § 5503(a)(4).

4 On June 28, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On August 25, 2017, Appellant filed his concise statement.
On September 19, 2017, the trial court issued its Rule 1925(a) opinion.
Appellant included his first three issues in his concise statement but did not
include his fourth issue in his concise statement. Nonetheless, as that issue
goes to the legality of Appellant’s sentence, it cannot be waived. See
Commonwealth v. Wilcox, 174 A.3d 670, 672 (Pa. Super. 2017), appeal
denied, 184 A.3d 545 (Pa. 2018) (citation omitted).


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      1. Did the trial court err in denying Appellant’s request to question
         [V]ictim regarding her knowledge of a conversation between
         Appellant and her then boyfriend concerning a prior sexual
         encounter?

      2. Did the trial court err in disallowing Appellant to adequately
         question [V]ictim regarding statements that she made at the
         time of trial, thereby violating Appellant’s [C]onfrontation
         [C]lause rights?

      3. Did the trial court err in not issuing a subpoena duces tecum
         to Clarion University, thereby substantially hindering
         Appellant’s ability to assemble evidence in his defense and
         violating his due process rights?

      4. Pursuant to [Commonwealth v. Butler, 173 A.3d 1212 (Pa.
         Super. 2017),] was there error in designating the Appellant as
         a[n SVP], where there was no jury finding beyond a reasonable
         doubt to support that allegation?

Appellant’s Brief at 4.

      In his first two questions presented, Appellant argues that the trial court

erred in excluding testimony related to Victim’s prior sexual conduct. To the

extent that these questions raise Confrontation Clause issues, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Tejada, 161 A.3d 313, 317 (Pa. Super. 2017) (citation omitted).           To the

extent that these questions raise subsidiary evidentiary issues, we review the

trial court’s determination for an abuse of discretion. See Commonwealth

v. Mangel, 181 A.3d 1154, 1158 (Pa. Super. 2018) (citation omitted).

      Appellant argues that the trial court improperly excluded evidence of

Victim’s past sexual conduct pursuant to Pennsylvania’s Rape Shield Law,

which provides that:



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      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 . . . 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.A. § 3104(a).

      In this case, Appellant sought to admit evidence that he witnessed

Victim perform oral sex on his roommate. Appellant argued that he confronted

Victim about cheating on her boyfriend with his roommate and that he later

informed Victim’s boyfriend about the encounter. He testified that he verbally

informed Victim’s boyfriend of the encounter and then communicated about

the encounter in a Facebook Messenger conversation with Victim’s boyfriend.

Appellant theorized that Victim accused him of sexual assault so that her

boyfriend would not believe his story that he witnessed Victim engaging in

sexual conduct with Appellant’s roommate.

      Appellant concedes that the evidence he sought to admit did not fall

within the Rape Shield Law’s lone statutory exception because the sexual

conduct in question was not with him. Nonetheless, he contends that the trial

court erred in excluding the evidence because “the Rape Shield Law may not

be used to exclude relevant evidence showing witness[] bias or attacking [a

witness’] credibility.” Commonwealth v. Holder, 815 A.2d 1115, 1119 n.1

(Pa. Super. 2003) (citation omitted). Phrased differently, the Rape Shield Law




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violates the Confrontation Clause when it seeks to prohibit admission of

evidence related to witness bias and/or credibility. See id.

      The trial court must engage in a four-part inquiry if a defendant seeks

admission of a victim’s past sexual conduct under either the statutory

exception or a constitutional exception to the Rape Shield Law.        After a

defendant provides notice that he or she wishes to introduce such evidence,

see 18 Pa.C.S.A. § 3104(b), the trial court must determine if the proffered

reason for introduction of past sexual conduct evidence is mere speculation or

conjecture. Commonwealth v. Wall, 606 A.2d 449, 457 (Pa. Super. 1992)

(citation omitted). If the proffered evidence is not speculation or conjecture,

the trial court must conduct an in camera hearing.         See 18 Pa.C.S.A.

§ 3104(b). At the conclusion of that hearing

      [t]he trial court must determine (1) if the evidence sought to be
      admitted is relevant to the accused’s defense, (2) whether the
      evidence sought to be admitted is merely cumulative of evidence
      otherwise admissible at trial, and (3) whether the evidence which
      the accused wishes to introduce at trial is more probative than
      prejudicial.

Commonwealth v. Fernsler, 715 A.2d 435, 440 (Pa. Super. 1998) (citation

omitted).

      Because the trial court conducted the in camera hearing required under

section 3104(b) we infer that the trial court determined that the evidence

proffered by Appellant did not constitute speculation or conjecture. We agree

with this determination as the evidence could be construed to show that

Appellant notified Victim’s boyfriend of the alleged sexual encounter between


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Victim and Appellant’s roommate and that, thereafter, Victim contacted the

police to discredit Appellant’s allegation in the eyes of her boyfriend.       So

construed, the evidence Appellant sought to admit was relevant because it

went to Victim’s credibility.   See Commonwealth v. Woeber, 174 A.3d

1096, 1104 (Pa. Super. 2017). Furthermore, the evidence was not cumulative

of other evidence. To the contrary, the only way Appellant could establish

that Victim fabricated the alleged attack was to explore Victim’s prior sexual

conduct, including Appellant’s communications with Victim’s boyfriend. The

trial court, however, found that the evidence was more prejudicial than

probative. As such, the trial court found that excluding the evidence under

the Rape Shield Law did not violate Appellant’s Confrontation Clause rights.

After careful consideration, we conclude that the trial court erred in finding

that the unfair prejudice associated with the proffered evidence outweighed

its probative value.

      Our prior case law illustrates the source of the trial court’s order. In

Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992), this Court

explained the balance between the probative value of evidence of past sexual

conduct and the prejudicial effect of such proof. In Eck, the defendant was

accused of sexually assaulting his foster brother. Like in the case at bar, the

defendant argued that the victim fabricated the incident and attempted to

introduce evidence of the victim’s prior sexual conduct to attack his credibility.

The trial court held that the evidence was inadmissible under the Rape Shield



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Law. This Court vacated that decision and remanded for a determination of

whether the probative value of the evidence outweighed its risk of unfair

prejudice. This Court emphasized that the probative value need only outweigh

the risk of unfair prejudice.    Id. at 1254.    That is, to constitute unfair

prejudice, the evidence must “inflame the minds of the jurors.”      Id.   This

distinction is crucial because evidence of the victim’s past sexual conduct is

always prejudicial. See Commonwealth v. Johnson, 566 A.2d 1197, 1199

(Pa. Super. 1989) (en banc), aff’d, 638 A.2d 940 (Pa. 1994).

      This Court has found violations of the Confrontation Clause in cases that

involve the exclusion of evidence offered to establish a sex assault victim’s

motive to fabricate an attack. In Fernsler, the defendant sought to “introduce

evidence that the child victim, his son, possessed a motive to fabricate the

charges . . . to escape the possibility of future sex assault charges based on

the son’s conduct towards his half[-]sister.”    Fernsler, 715 A.2d at 440

(cleaned up). The trial court held that excluding the evidence would violate

the defendant’s Confrontation Clause rights. The Commonwealth appealed,

arguing that admission of the evidence was barred by the Rape Shield Law.

This Court affirmed, concluding that “the Rape Shield Law must bow to the

need to permit [the defendant] an opportunity to present genuinely

exculpatory evidence.” Id. at 442 (citation omitted).

      When analyzing whether the probative value of the evidence outweighed

any unfair prejudice this Court stated that



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     the purpose of admitting the evidence was not to impugn the
     character of the child victim as a sexually promiscuous individual.
     It was not to punish him for being a victim at the defendant’s
     hands. It was not to label the child victim as a bad boy. It was
     not to seek retribution against him for having embarrassed the
     defendant by allegations of sexual abuse or for discrediting the
     defendant’s character in the community. It was simply to flush
     out the truth.

Id. at 441–442 (cleaned up).

     The same is true in the case sub judice.        Appellant did not seek

admission of the evidence to impugn Victim’s character or label her as a

promiscuous college student.    Instead, Appellant sought admission of the

evidence to get to the truth by challenging Victim’s credibility.          Thus,

admission of the evidence does not deviate from the Rape Shield Law’s

purpose of “prevent[ing] a trial from shifting its focus away from the

culpability of the accused towards the virtue and chastity of the victim.”

Commonwealth v. Guy, 686 A.2d 397, 400 (Pa. Super. 1996).

     Despite the Rape Shield Law, this Court has allowed evidence concerning

the timing of sexual abuse claims where such evidence did not impermissibly

shift the focus of proceedings before the trial court. In Wall, the defendant

attempted to introduce evidence that the victim previously accused “her

mother’s adult male paramour [of sexual assault] and that the success of that

prosecution caused the victim’s removal from her mother’s home and

placement in the home in which her aunt and [the defendant] later served as

her guardians.” Wall, 606 A.2d at 457–458. Like in the case at bar, the trial

court barred that evidence because it found that its probative value did not


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outweigh the risk of unfair prejudice. This Court reversed, finding that the

probative value of the evidence outweighed the risk of unfair prejudice. This

Court reasoned that

      the timing of the victim’s sexual abuse complaint, and the fact
      that, according to the victim’s aunt, the victim left a note to
      explain why she had to do this, we conclude that the excluded
      evidence here was . . . absolutely critical to the defense. If
      believed, the evidence would indeed have been exculpatory to the
      defendant. Under the circumstances of this case we conclude that
      the probative value outweighed the possibility of prejudice and
      that, therefore, the trial court erred in excluding it from trial.

Id. at 465–466.

      Similar circumstances are present in the case at bar.          Appellant’s

defense rested on his assertion that Victim reported the sexual assault to

discredit his statement that she had sexual contact with Appellant’s

roommate. The timing of Victim’s report and Appellant’s communication with

Victim’s boyfriend are logically consistent with his theory.         Hence, the

probative value of the evidence is relatively high. Moreover, the risk of unfair

prejudice is low.   As we have discussed above, Appellant did not seek to

portray Victim as promiscuous or claim that she somehow enticed the assault.

Instead, he denied that the assault occurred and sought to attack her

credibility by pointing out a plausible motive for her report to police.

      The cases discussed above stand in stark contrast to those cases in

which this Court has held that excluding evidence of a victim’s past sexual

conduct did not violate a defendant’s Confrontation Clause rights.          For

example, in Guy this Court held that a victim’s past sexual conduct with a


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third-party was inadmissible in an attempt to bolster a consent defense

because it attempted “to prove that the victim acted in conformity with past

behavior on the date in question.” Guy, 686 A.2d at 401. Hence, in Guy the

defendant attempted to argue that the victim consented to a sexual encounter

because of her promiscuity; the evidence was not simply an attack on the

victim’s credibility. Again, in this case Appellant is not attempting to portray

Victim as consenting to sexual contact because she is promiscuous.

      Similarly, in Commonwealth v. Widmer, 667 A.2d 215 (Pa. Super.

1995), rev’d on other grounds, 689 A.2d 211 (Pa. 1997), this Court held that

      the evidence of the victim’s prior sexual conduct with her
      boyfriend was not offered by Widmer for the purpose of
      demonstrating that he did not engage in sexual intercourse with
      the victim. Similarly, he was not seeking to demonstrate motive
      or bias on the part of the victim. Rather, Widmer was seeking to
      bolster his claim of consent by portraying the victim as having
      been sexually promiscuous.

Id. at 222.

      As is evidenced by our discussion of this Court’s prior decisions, our case

law draws a sharp distinction between a defendant who offers evidence of a

victim’s past sexual conduct to attack his or her credibility and a defendant

who seeks to offer such evidence to advance a consent defense. In the former

cases, this Court has held that exclusion of the evidence sometimes violates

a defendant’s Confrontation Clause rights. In the latter cases, this Court has

held that exclusion of the evidence does not violate a defendant’s

Confrontation Clause rights.



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      In this case, Appellant attempted to introduce evidence of Victim’s past

sexual conduct in order to attack her credibility. Appellant did not seek to

portray Victim as promiscuous or prove that she consented to a sexual

encounter.   To the contrary, Appellant’s defense was that no such contact

occurred between himself and Victim.          Hence, this case is analogous to

Fernsler and Wall and not analogous to Guy and Widmer.

      The trial court also found that there was no proof that Victim saw

Appellant’s Facebook Messenger communication with her boyfriend prior to

filing a police report or that her boyfriend was angry about the allegations.

These findings, however, are unsupported by the record. The record reflects,

that Victim testified at the preliminary hearing that she saw the messages.

See N.T., 2/9/16, at 27. At trial, she clarified that she saw the messages

prior to reporting the alleged assault to police. See N.T., 10/10/16, at 57-59.

Moreover, it can be reasonably inferred that Victim’s boyfriend was unhappy

when told that Victim allegedly engaged in sexual conduct with Appellant’s

roommate. Hence, the trial court’s rationale for finding the probative value of

the evidence low is unsupported by the record.        For the reasons set forth

above, we conclude that the probative value of the evidence outweighed the

risk of unfair prejudice.   Accordingly, we hold that the trial court erred in

excluding the evidence. Moreover, this evidence was at the core of Appellant’s

defense and he did not have an opportunity to present other evidence similarly

attacking Victim’s credibility. Hence, the error was not harmless.



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     In sum, we hold that exclusion of Victim’s past sexual conduct violated

Appellant’s Confrontation Clause rights. As that error was not harmless, we

vacate Appellant’s judgment of sentence and remand for a new trial consistent

with this opinion. We decline to address Appellant’s remaining issues because

they would not entitle him to discharge.

     Commonwealth’s Brief stricken. Judgment of sentence vacated. Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/2018




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