J-S23021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
KYLE VO,                                  :
                                          :
                  Appellant               :           No. 2327 EDA 2016

            Appeal from the Judgment of Sentence July 18, 2015
              in the Court of Common Pleas of Chester County,
             Criminal Division, No(s): CP-15-CR-0001077-2015

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

DISSENTING MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 16, 2017

      I must respectfully disagree with the Majority’s conclusion regarding

the admissibility of the recorded telephone conversation between Appellant

and the victim. The ultimate issue in this case is whether the victim was too

impaired to consent to intercourse. At trial, the Commonwealth presented

evidence regarding the victim’s alcohol intake throughout the evening prior

to the incident. The victim testified that she had been drinking that evening,

and was not capable of consenting to intercourse. However, in her recorded

statement, the victim claimed that she was “sober” when she told Appellant

that she did not want to have sex. She further stated to the Appellant that

“you got me drunk,” which contradicted her testimony that she was

intoxicated earlier that evening. See Slip Opinion at 2, 8. The victim’s state

of intoxication, and its impact on her ability to consent, was the ultimate
J-S23021-17


issue at trial. I would conclude that the trial court abused its discretion in

precluding Appellant’s use of this testimony to cross-examine the victim.

     In addition, because the victim’s ability to consent was the ultimate

issue at trial, I cannot conclude that the error is harmless, beyond a

reasonable doubt.   For this reason, I would reverse Appellant’s judgment of

sentence and remand for a new trial.




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