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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                          :
                                          :
                                          :
 MANZELLE LEE BENITEZ                     :
                                          :
                     Appellant            :   No. 1338 MDA 2017

            Appeal from the Judgment of Sentence July 14, 2017
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005835-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.:                      FILED NOVEMBER 02, 2018

      A jury convicted Manzelle Lee Benitez of raping his girlfriend’s friend

(“the victim”). He complains the trial court erred in precluding him from

presenting evidence about the victim’s sexual activity shortly before the rape

occurred, and that the court erred in imposing parole requirements. We

conclude the court properly found Benitez had failed to follow the procedure

set forth in Pennsylvania’s Rape Shield Law, thus rendering his proffered

evidence inadmissible. Also, any parole requirements imposed by the court

are a legal nullity. We therefore reverse the judgment of sentence in part, but

affirm in all other respects.

      The primary factual dispute at trial was consent. The victim testified she

repeatedly rebuffed Benitez’s advances, and while he was assaulting her, she

“told him no and … told him to stop.” Benitez testified the victim came on to
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him, and he digitally penetrated her for nearly four hours in a car before he

had consensual oral and vaginal intercourse with her.

       Prior to trial, the Commonwealth filed a motion in limine, seeking

exclusion of certain evidence pertaining to the victim’s character. Of most

importance to this appeal, the Commonwealth sought to preclude Benitez from

presenting evidence the victim had told the forensic nurse that she had

engaged in consensual intercourse within five days of the rape.1 Defense

counsel filed a written response to the Commonwealth’s motion, conceding,

in relevant part, that evidence of prior consensual intercourse within five days

prior to the rape was barred by the Rape Shield Law, 18 Pa. C.S.A. § 3104.

       The court did not rule on the Commonwealth’s motion until after a jury

had been selected. At this time, defense counsel orally requested the court

allow him to “explore” whether the injuries noted during the nurse’s

examination of the victim could have been caused by the prior consensual

intercourse. The court denied defense counsel’s request.

       We review the trial court’s ruling on the admissibility of evidence under

the Rape Shield Law for a clear abuse of discretion. See Commonwealth v.

Burns, 988 A.2d 684, 689 (Pa. Super. 2009). An abuse of discretion is more

than a mere error of judgment. See id. To constitute an abuse of discretion,



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1 There is no indication in the record regarding who the victim had intercourse
with, but the record is clear it was not Benitez. The victim met Benitez for the
first time on the night of the rape.

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the court must misapply the law or exercise its judgment in a manner that is

manifestly unreasonable, partial, prejudiced, biased, or otherwise indicative

of ill-will. See id.

      Pennsylvania’s Rape Shield Law provides, in pertinent part, as follows:

      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.A. § 3104(a). “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. The Rape Shield Law is intended to exclude

irrelevant and abusive inquiries regarding prior sexual conduct of sexual

assault complainants.” Burns, 988 A.2d at 689 (citations omitted). See also

4 Summ. Pa. Jur. 2d Criminal Law § 15:22 (2d ed.).

      There are recognized exceptions to the Rape Shield Law. “[T]he Rape

Shield law will bow to a defendant’s right to confront and cross-examine when

a specific proffer demonstrates that the proposed inquiry is intended to elicit

relevant evidence, which is more probative than prejudicial, and which is not

cumulative of other evidence[.]” Commonwealth v. Nieves, 582 A.2d 341,

347 (Pa. Super. 1990). However, to qualify for an exception, a defendant must

file a written motion and an offer of proof prior to trial. See 18 Pa.C.S.A. §

3104(b); Burns, 988 A.2d at 690.

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      Here, Benitez concedes he did not file a written motion prior to trial

seeking admission of this evidence. See Appellant’s Brief, at 19-20. Even

more, defense counsel conceded this evidence was precluded by the Rape

Shield Law in his written response to the Commonwealth’s motion. See

Defense Response to Commonwealth’s Motion in Limine, 2/6/17, at ¶¶ 15-18.

      Even if Benitez had properly preserved this issue under the Rape Shield

Law, he would be due no relief. He contends the evidence is admissible as it

can explain the presence of certain injuries in the victim’s genitals during the

nurse’s   examination.   He   further    correctly   notes   the   forensic   nurse

acknowledged the injuries could have been caused by “rough” consensual

intercourse. See N.T., Jury Trial, 41/12/17, at 228-229. However, Benitez

testified he had consensual intercourse with the victim shortly before the

examination. Thus, the evidence of any other consensual intercourse would

have been merely cumulative evidence supporting Benitez’s argument that

the injuries noted on the victim could have resulted from consensual

intercourse. It therefore would not have qualified for any exception to the

Rape Shield Law.

      In his second and final issue on appeal, Benitez contends the court erred

by imposing conditions on his parole. Particularly, Benitez challenges the list

of seventeen conditions listed on a form utilized by the Lancaster County Adult

Probation and Parole Services.




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       The court sentenced Benitez to a term of imprisonment of four to eight

years. During sentencing, the court noted Benitez had signed a form setting

forth parole requirements of the Lancaster County Adult Probation and Parole

Services. And it also opined those conditions applied to Benitez. See N.T.,

Sentencing, 7/14/17, at 21-22.

       As the court concedes, it lacked the authority to impose any conditions

on Benitez’s parole, as his parole is under the exclusive jurisdiction of the

Pennsylvania Board of Probation and Parole. See Commonwealth v. Mears,

972 A.2d 1210, 1212 (Pa. Super. 2009).2 It notes, however, that these

conditions are termed recommendations on the Department of Corrections

commitment forms.

       We reverse the judgment of sentence in part, as the purported parole

conditions are a legal nullity. The court did not have the jurisdiction to impose

them, and the Board of Probation and Parole need not honor them. In all other

respects, the sentence is valid.




____________________________________________


2 Additionally, Benitez’s failure to raise the issue at sentencing or in post-
sentence motions does not render it waived. See id., at 1211.

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      Judgment of sentence reversed in part and affirmed in part. Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2018




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