J-A08040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID CARDONA                              :
                                               :
                       Appellant               :   No. 1654 EDA 2018

          Appeal from the Judgment of Sentence Entered April 9, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000176-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.:                              FILED MAY 20, 2020

       David Cardona (Appellant) appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury

convictions of rape, indecent assault, and corruption of minors.1 Appellant

raises seven issues, relating to evidentiary rulings, an alleged Brady2

violation, the sequestration of witnesses, the jury instructions, and the weight

of the evidence. We affirm.



____________________________________________


1  18 Pa.C.S. §§ 3121(a)(1) (rape by forcible compulsion), 3126(a)(2)
(indecent assault by forcible compulsion), 6301(a)(1)(i) (corruption of
minors).

2Brady v. Maryland, 373 U.S. 83 (1963). See Commonwealth v. Ovalles,
144 A.3d 957, 965 (Pa. Super. 2016) (prosecutor has obligation to disclose all
exculpatory information material to guilt or punishment of accused).
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       The minor victim (Victim) in this matter testified at trial to the following.

In March of 2016, when she was 13 years old, she was spending the night at

Appellant’s home in Chester, Pennsylvania.          Appellant “was a close family

friend,” and Victim’s family considered him an uncle to Victim.3 Trial Ct. Op.,

7/30/19, at 2. Also present were Victim’s younger sister (Sister), as well as

Appellant’s two daughters. The trial court summarized:

       [Appellant] told [S]ister and his [older] daughter to go upstairs.
       He told them that they were not allowed to come downstairs until
       he told them they could.

            [Victim] went into the kitchen . . . and [Appellant] entered,
       turning the kitchen lights off. He grabbed [Victim’s] arms from
       behind and bent her over, then pulled [Victim’s] pants down and
       forcibly penetrated her [vagina]. He told her to put her hands on
       the sink, and she did. She was too afraid to resist, thinking he
       might get abusive. She attempted to [lift herself up but was
       pushed] back down. She was crying but didn’t call out [because
       she did not want her sister to see what was happening. Appellant]
       then released her[, and Victim] went into the upstairs bathroom.

Trial Ct. Op. at 2-3 (record citations omitted); see also N.T. Trial, 1/17/18,

at 46-49, 51. There was “blood all over” Victim’s underwear, and she took a

shower. N.T., 1/17/18, at 50. Victim then put her underwear in a bag and

threw it in a trashcan outside. Id. at 51. When Appellant’s wife arrived home,

everyone watched a movie together.             The next morning, Appellant drove

Victim home and told her, “[M]ake sure you don’t tell anybody because I can

lose my kids and my family.” Id. at 52. Thereafter, Appellant “kept coming”


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3 At trial, Victim’s mother testified Appellant was her cousin.         N.T. Trial,
1/17/18, at 173.

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to Victim’s house and asked her whether she told her parents, and whether

she “want[ed] to do it again.” Id. at 53, 55.

       Victim testified this incident caused her stress. N.T., 1/17/18, at 57. In

November of 2016,4 Victim was at home with her family and “was so angry.”

Id. She went into the bathroom and held a knife to her neck. Id. Her mother

asked Victim, “[W]hat’s wrong because [she had not] been acting [like her]self

lately,” and Victim told her about the incident with Appellant, because Victim

“couldn’t hold the pressure anymore.” Id. at 56-57.

       The trial court summarized that the next day,

       November 4, 2016, [Victim] went to DuPont Childrens Hospital,
       and was treated for rape by [pediatric] Forensic Nurse Christina
       Lynch. [Nurse] Lynch was unable to do a rape kit since it had
       passed the six month mark but was treating her for possible
       sexually transmitted diseases.

Trial Ct. Op. at 3 (record citations omitted). At the hospital, Victim also gave

a statement to Chester Police Officer Joshua Dewees. N.T., 1/17/18, at 205-

06.

       This case proceeded to a jury trial commencing January 16, 2018.

Victim testified as summarized above.            The Commonwealth also called to

testify Victim’s mother and sister, Nurse Lynch, and Officer Dewees. Appellant

did not testify, but called his wife to testify. The jury found Appellant guilty

of rape, indecent assault, and corruption of minors.


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4See N.T., 1/17/18, at 174 (Mother’s testimony as to when this conversation
occurred).

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       On April 9, 2018, the trial court imposed a sentence of 70 to 140 months’

incarceration for rape and a consecutive five years’ probation for corruption of

minors. Appellant filed a timely post-sentence motion, which was denied on

May 4th. Appellant took this timely appeal and complied with the court’s order

to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

       Appellant presents the following issues for our review:

       1. Whether the trial court erred in allowing the nurse, over the
       objections of defense counsel, to testify as to impermissible
       hearsay under Com. v. Smith, 681 A.2d 1288 (Pa. 1996).

       2. Whether the trial, through failure to memorialize investigatory
       information, violated Brady and caused extreme prejudice to
       [Appellant].

       3. Whether the trial court erred in conduct with witnesses
       including not sequestering them from each other and in allowing
       mid-trial conferences with a professional witness.

       4. Whether the trial court erred in not allowing evidence of the
       alleged victim’s mental health diagnoses to be investigated or
       presented, as well as in violation of the [C]onfrontation [C]lause,
       as it was critical information to judg[ ]ment of ability to tell or
       know the truth.

       5. Whether the trial court erred in not allowing the Facebook posts
       as a Killen[5]-type statement.

       6. Whether the trial court erred in not instructing the jury as to
       failure to produce documents or evidence and as to impeachment
       of a witness.


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5 Commonwealth v. Killen, 680 A.2d 851, 854 (Pa. 1996) (complainant’s
“sexually provocative” statements made to third person after alleged sexual
assault were not subject to Rape Shield Law and were admissible to assist jury
in assessing complainant’s credibility in determining whether she was victim
of sexual assault).

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      7. Whether the trial verdict is against the weight of the evidence.

Appellant’s Brief at 10.

      Preliminarily, we remind counsel of the “much quoted” article by the

Honorable Ruggero Aldisert of the federal Third Circuit Court of Appeals:

      With a decade and a half of federal appellate court experience
      behind me, I can say that even when we reverse a trial court it is
      rare that a brief successfully demonstrates that the trial court
      committed more than one or two reversible errors. I have said in
      open court that when I read an appellant’s brief that contains ten
      or twelve points, a presumption arises that there is no merit to
      any of them . . . [and] it is [this] presumption . . . that reduces
      the effectiveness of appellate advocacy.

Commonwealth v. Robinson, 864 A.2d 460, 479 n.28 (Pa. 2004), quoting

Aldisert,   Ruggero,   The   Appellate   Bar:   Professional   Competence     and

Professional Responsibility — A View from the Jaundiced Eye of the Appellate

Judge, 11 CAP. U. L. REV. 445, 458 (1982).

      We also note with displeasure that Appellant’s arguments generally do

not acknowledge, let alone discuss, the trial court’s opinion addressing his

issues. To this end, we further remind counsel that this Court is “an error

correcting court,” and thus, at least with respect to the particular claims raised

in this appeal, our duty is to review the decisions of the trial court, and not,

as Appellant’s presentation would require, undertake de novo review of his

claims. See Commonwealth v. Snyder, 60 A.3d 165, 178 (Pa. Super. 2013)

(citation omitted).

      In Appellant’s first issue, he avers the trial court erred in allowing Nurse

Lynch to testify as to what Victim told her during the physical examination.

                                      -5-
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For ease of review, we recount that at trial, Victim first testified about the

incident as summarized above. Subsequently, Nurse Lynch testified that at

the hospital, she asked Victim for the “history” and “facts” needed “to base

her medical care off of.” N.T., 1/17/18, at 123-24. Before the nurse said

anything about what Victim had told her that day, Appellant raised an

objection on hearsay grounds. Id. at 125. At sidebar discussion, the trial

court overruled the objection, accepting the Commonwealth’s argument that

the testimony was admissible under the medical diagnosis/treatment

exception to the general rule against hearsay.6 Id. at 126-27. Nurse Lynch

then testified as to what Victim told her about the incident, including that it

was Appellant who was perpetrator. Id. at 128-29. The nurse also stated

Victim was emotional but “a good historian” and spoke with a “matter of

factness.” Id. at 123-24. We note Appellant did not object to this testimony.

See id.

       On appeal, Appellant maintains these statements by Nurse Lynch at trial

were inadmissible hearsay. He avers Nurse Lynch should have been precluded

from stating that he was the perpetrator, pursuant to Smith. See Smith,



____________________________________________


6 See Pa.R.E. 803(4)(A)-(B) (statements not excluded by rule against hearsay
include one that: “(A) is made for — and is reasonably pertinent to — medical
treatment or diagnosis in contemplation of treatment; and (B) describes
medical history, past or present symptoms, pain, or sensations, or . . . the
cause . . . thereof, insofar as reasonably pertinent to treatment, or
diagnosis . . . .”).


                                           -6-
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681 A.2d at 1293 (declining to extend medical treatment exception to

statements identifying alleged abuser). Furthermore, Appellant alleges Nurse

Lynch should have been precluded from “vouch[ing] for [V]ictim’s propensity

for telling the truth,” and that the trial court’s error requires a new trial.

Appellant’s Brief at 20. No relief is due.

      The admission of evidence is “a matter vested within the sound

discretion of the trial court.” Commonwealth v. Gonzalez, 109 A.3d 711,

726 (Pa. Super. 2015). Generally, “[h]earsay is not admissible.” Pa.R.E. 802.

Hearsay is defined as “a statement that (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c)(1)-

(2). One exception to the general hearsay rule is set forth at Pennsylvania

Rule of Evidence 803.1:

      The following statements are not excluded by the rule against
      hearsay if the declarant testifies and is subject to cross-
      examination about the prior statement:

                                  *    *     *

                (2) Prior Statement of Identification by Declarant-
          Witness. A prior statement by a declarant-witness identifying
          a person or thing, made after perceiving the person or thing,
          provided that the declarant-witness testifies to the making of
          the prior statement.

Pa.R.E. 803.1(2). Our Supreme Court has also stated that “hearsay concerns

are virtually non-existent where an out-of-court declarant is a witness in a




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judicial proceeding.” Commonwealth v. Romero, 722 A.2d 1014, 1017 (Pa.

1999).

       Here, Victim had already testified about what occurred and identified

Appellant as the perpetrator.         See N.T., 1/17/18, at 47-48.   Victim also

testified she told the nurse at the hospital about “what happened.” Id. at 58.

Nurse Lynch then testified about what Victim told her.7 Id. at 128. Thus, this

testimony falls under the hearsay exception set forth at Rule 803.1(2). See

Pa.R.E. 803.1(2); Romero, 772 A.2d at 1017. At trial, Appellant made no

request to re-cross-examine Victim following Nurse Lynch’s testimony, and on

appeal, makes no argument that Victim was not available for such cross-

examination. Accordingly, no relief is due.8




____________________________________________


7The trial court pointed that Nurse Lynch’s testimony — as to what Victim told
her about the incident — was “almost verbatim” to Victim’s trial testimony.
Trial Ct. Op. at 4; see also N.T., 1/17/18, at 47-48, 51, 128-29.

8  Furthermore, we could find this issue waived for failure to raise a
contemporaneous objection. See Commonwealth v. Pearson, 685 A.2d
551, 555 (Pa. Super. 1996) (en banc) (“Failure to raise a contemporaneous
objection to the evidence at trial waives that claim on appeal. Pa.R.A.P.
302(a)[. A defendant] may not raise a new theory for an objection made at
trial on his appeal.”). Appellant lodged only a general hearsay objection to
preclude Nurse Lynch from testifying about what Victim told her. See N.T.,
1/17/18, at 125-26 (Appellant arguing witness should be “called to only say
that she did an exam”). Appellant made no specific objection to Nurse Lynch’s
testimony about Victim’s truthfulness or Victim’s identification of Appellant as
the perpetrator, and Appellant made no contemporaneous argument that this
testimony fell outside the scope of the medical treatment exception. See id.
at 124, 128.


                                           -8-
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       In Appellant’s second claim, he alleges a Brady violation, where the

Commonwealth refused, despite his repeated demands, to memorialize in

writing “the oral information” it had provided him. Appellant’s Brief at 24. In

further support of his Brady claim, Appellant argues the Commonwealth failed

to, inter alia: (1) get the clothes Victim was wearing on the night of the

incident; (2) “memorialize (or did not know) [Victim] was apparently suicidal

. . . prior to her revealing the alleged rape to her mother;” (3) “memorialize

the reason for not dealing with active warrants” against Victim’s mother; and

(4) “memorialize the false statements of the mother [that Appellant intended

to flee to Puerto Rico] and the fact that the Commonwealth knew the

statements were false.”     Id. at 25-26.   Appellant acknowledges the trial

court’s response, that the Commonwealth did not have any “written material”

but was “disclosing the verbal material” it did have. Id. at 24. No relief is

due.

       This Court has stated:

       To establish a Brady violation, an appellant must prove three
       elements: (1) the evidence at issue was favorable to the accused,
       either because it is exculpatory or because it impeaches; (2) the
       evidence was suppressed by the prosecution, either willfully
       or inadvertently; and (3) prejudice ensued. The burden rests with
       the appellant to “prove, by reference to the record, that evidence
       was withheld or suppressed by the prosecution.” The
       evidence at issue must have been “material evidence that
       deprived the defendant of a fair trial.” “Favorable evidence is
       material, and constitutional error results from its suppression by
       the government, if there is a reasonable probability that, had the
       evidence been disclosed to the defense, the result of the
       proceeding would have been different. . . .


                                     -9-
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      . . . The duty to disclose is limited to information in the possession
      of the government bringing the prosecution, and the duty does
      extend to exculpatory evidence in the files of police agencies of
      the government bringing the prosecution. Brady is not violated
      when the appellant knew or, with reasonable diligence, could
      have uncovered the evidence in question, or when the evidence
      was available to the defense from other sources. Brady sets forth
      a limited duty, not a general rule of discovery for criminal cases.

Ovalles, 144 A.3d at 965 (citations omitted) (some emphases added).

      Appellant’s invocation of Brady is mistaken. First, he contends the trial

court erred in not requiring the Commonwealth to provide in writing the

information it had already verbally given him.         Brady imposes no such

obligation that information, provided by a prosecutor to the defendant, be in

written form. Second, Appellant does not claim the Commonwealth refused

to “disclose all exculpatory information material to the guilt or punishment of

an accused.” See Ovalles, 144 A.3d at 965. Instead, he acknowledges the

Commonwealth provided him information — albeit in a form he did not prefer

— and, alternatively, the Commonwealth may not have known about Victim’s

alleged suicidal thoughts. See Appellant’s Brief at 25-26. Furthermore, with

respect to Appellant’s claim concerning the clothes Victim was wearing, we

note: (1) he presents no explanation nor evidence why they would be

exculpatory; and (2) he ignores the trial court’s reasoning that “[e]ven if

[Victim] still had the clothes [from] the night in question, police training

dictates that the physical evidence on the clothes could be compromised since

the incident took place seven months earlier.” See Trial Ct. Op. at 4 (footnote

omitted).   As Appellant fails to “prove, by reference to the record, that

                                     - 10 -
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evidence was withheld or suppressed by the prosecution,” no relief is due

under Brady. See Ovalles, 144 A.3d at 965 (citation omitted).

      Next, Appellant avers, “The trial court erred in conduct with witnesses

including not sequestering them from each other and in allowing mid-trial

conferences with a professional witness.” Appellant’s Brief at 31. This claim

is identical to the issue as framed in his Rule 1925(b) statement.          See

Appellant’s 1925b Statement of Matters Complained of on Appeal, 6/20/18, at

1. Both the trial court and the Commonwealth suggest Appellant has waived

this issue by not providing sufficient explanation in his Rule 1925(b)

statement. Trial Ct. Op. at 5; Commonwealth’s Brief at 19. The trial court

explained:

      [Appellant] does not clarify what mid-trial conferences he alleged
      transpired. This Court can only find one instance on the record in
      which [Appellant] requested witnesses be sequestered during the
      trial. [Appellant] requested the affiant[, Officer Dewees,] be
      sequestered outside, to which the Commonwealth acquiesced and
      the Court agreed. [N.T., 1/18/18, at 18.] Without more clarity
      pertaining to what exact incidents [Appellant] refers to in his
      Appeal, it is not possible for this Court to address the argument.

Trial Ct. Op. at 5.

      Our Supreme Court has recently stated that under Commonwealth v.

Lord, 719 A.2d 306 (Pa. 1998), and Commonwealth v. Butler, 812 A.2d

631 (Pa. 2002), an appellant

      is required to strictly comply with the provisions of Rule 1925(b),
      or his or her appellate issues are deemed to be waived. Rule
      1925(b)(4)(ii) directs that “[t]he Statement shall concisely
      identify each error that the appellant intends to assert with
      sufficient detail to identify the issue to be raised for the

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      judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added).           As the
      comment to Rule 1925(b) further elaborates:

           . . . [C]ounsel should begin the winnowing process when
           preparing the Statement and should articulate
           specific errors with which the appellant takes issue
           and why.

      Pa.R.A.P. 1925(b), comment (emphasis added).

Commonwealth v. Parrish, ___ A.3d ___, ___, 2020 WL 355016 at **14-

15 (Pa. Jan. 22, 2020).

      We first consider the portion of Appellant’s Rule 1925(b) claim

concerning “mid-trial conferences with a professional witness.”             See

Appellant’s 1925b Statement of Matters Complained of on Appeal at 1. The

Rule 1925(b) statement did not identify or offer further explanation about this

“professional witness” or any “mid-trial conference[ ].” See id. Appellant’s

brief, on the other hand, asserts Officer Dewees was improperly “allowed to

confer with the district attorney mid-[cross-]examination,” when defense

counsel was “[taking] the officer to task for his lack of investigation [before]

filing the charges.” Appellant’s Brief at 34. Appellant further contends the

trial court improperly “attempted to coach the District Attorney on how to

rehabilitate her witness, and told her to . . . confer with the officer about how

to testify.” Id. at 35.

      We emphasize the trial court did not comprehend the issue Appellant

wished to present.        See Trial Ct. Op. at 5.    Accordingly, we conclude

Appellant’s Rule 1925(b) statement failed to “assert with sufficient detail to


                                     - 12 -
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identify the issue to be raised for the judge,” and thus this issue is waived.

See Pa.R.A.P. 1925(b)(4)(ii); Parrish, ___ A.3d at ___, 2020 WL 355016 at

**14-15.

      The other portion of Appellant’s claim was that the trial court “erred in

conduct with witnesses including not sequestering them from each other.”

Appellant’s 1925b Statement of Matters Complained of on Appeal at 1. We

note that “a request for sequestration must be specific and supported by a

showing that the interests of justice require it.”          Commonwealth v.

Counterman, 719 A.2d 284, 299 (Pa. 1998).

      The trial court addressed this issue by pointing out that Appellant only

made one request for sequestration — regarding Officer Dewees — and the

court granted it. Trial Ct. Op. at 5, citing N.T., 1/18/18, at 18. However, on

appeal, Appellant alleges that “in violation of sequestration,” Victim, her sister,

and their mother “were permitted to sit together [outside the courtroom] and

tailor[ ] their testimony” about Victim’s “suicide attempt that was never

revealed to anyone prior to trial.” Appellant’s Brief at 31-32. Appellant also

cites, as “evidence for breach of the sequestration,” the uniformity of the three

witnesses’ denial at trial that Victim was the writer of a message, addressed

to Appellant, on the back of Victim’s school photo.        Id. at 33.   We could

conclude the Rule 1925(b) likewise failed to sufficiently inform the court of

this particular allegation of error, and we could find waiver under Rule

1925(b)(4)(ii). See Trial Ct. Op. at 5.


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        Nevertheless, we agree with the Commonwealth’s contention that

Appellant has waived this issue by failing to raise it at trial.             See

Commonwealth’s Brief at 19. See Counterman, 719 A.2d at 299 (request

for sequestration must be specific and supported by showing that interests of

justice require it). To this end, we note that in his brief, Appellant contends

that “off the record,” he “requested and was granted sequestration,” as

evidenced by the “on the record . . . side bar” clarification that his wife leave

the courtroom. Appellant’s Brief at 31, citing N.T., 1/17/18, at 3. The page

of the trial transcript cited by Appellant reveals only he requested that his wife

be permitted to stay in the courtroom for opening argument. N.T., 1/17/18,

at 3.    The trial court denied this request once Appellant stated she would

testify at trial. Id. The transcript does not indicate — and Appellant does not

claim on appeal — that he ever specifically requested sequestration of Victim,

Sister, and their mother. Furthermore, Appellant raised no objection to any

of these witnesses’ testimony on the ground they had improperly shared their

testimony with each other. Accordingly, this issue is waived. See Pa.R.A.P.

302(a); Counterman, 719 A.2d at 299.

        In Appellant’s fourth issue, he alleges the trial court erred in applying

the psychotherapist-patient privilege, both in discovery and at trial, to

preclude evidence of Victim’s mental health diagnoses and medication.

Appellant contends medical records may be admitted to impeach a witness,

and may be admitted where the records have a connection to the subject of


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the litigation and affect a witness’ ability to testify. He asserts Victim “was

apparently suicidal about 24 hours before being examined by a nurse” and

“the precariousness of her mental health may have been based on delusions.”

Appellant’s Brief at 39.        Finally, Appellant also requests relief under the

Confrontation Clause. No relief is due.

        “We review the trial court’s discovery rulings for abuse of discretion.”

Gonzalez, 109 A.3d at 728. As stated above, the admission of evidence is “a

matter vested within the sound discretion of the trial court.”       Id. at 726.

Section 7111 of the Mental Health Procedures Act9 (MHPA), upon which the

trial court relied, provides:

        § 7111. Confidentiality of records

            (a) All documents concerning persons in treatment shall be
        kept confidential and, without the person’s written consent, may
        not be released or their contents disclosed to anyone except:

                 (1) those engaged in providing treatment for the person;

                 (2) the county administrator, pursuant to section 110;

                (3) a court in the course of legal proceedings authorized
            by this act; and

                 (4) pursuant to Federal rules, statutes and regulations
            governing disclosure of patient information where treatment
            is undertaken in a Federal agency.

50 P.S. § 7111(a)(1)-(4) (footnote omitted).         “The MHPA must be strictly

construed. [It] limits judicial use of mental health records to mental health


____________________________________________


9   50 P.S. §§ 7101-7503.

                                          - 15 -
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commitment proceedings unless the patient consents to their use in other

judicial proceedings.” Gonzalez, 109 A.3d at 728, citing Commonwealth v.

Moyer, 595 A.2d 1177, 1179 (Pa. Super. 1991) (emphasis added).

      The trial court addressed in further detail the reasons why Appellant

sought Victim’s mental health records, and concluded:

           In summary, [Appellant] follows the following argument [sic]
      for [his] basis of the release of these records. According to
      [Appellant], it was discovered that [V]ictim had been seen
      numerous times at this hospital in question, as early as 2007. In
      2014, [V]ictim had been seeing a therapist, and was prescribed
      antipsychotic medications.       [Appellant] believes that this
      information should be available because during [V]ictim’s forensic
      interview, she claim[ed] that before the incident she had a
      completely normal life. He claims that these records show that
      this was actually not accurate, and she actually had problems
      since 2007, showing that she has a lack of credibility. [The
      Commonwealth,] however, denied all of these statements. [It]
      stated that [V]ictim had just expressed that her life had been
      worse since the [incident] and did not make any suggestions that
      her life had been incredibly normal before this event.

      . . . Since [V]ictim never represented herself in the way that
      [Appellant] has suggested, the privilege is not waived, and the
      evidence cannot be admitted. Therefore, the court did not err in
      denying the introduction of evidence of [V]ictim’s mental health
      diagnoses, because mental health records are privileged from
      discovery.

Trial Ct. Op. at 6 (citations to record omitted).

      Appellant’s argument does not address — nor dispute — this reasoning

by the trial court. Appellant also fails to address why Section 7111(3) does

not bar the admission of Victim’s mental health records in this criminal

proceeding. See 50 P.S. § 7111(3); Gonzalez, 109 A.3d at 728. In light of




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the foregoing authority and the trial court’s reasoning, no relief is due. See

Gonzalez, 109 A.3d at 726.

          Appellant’s fifth claim is that the trial court erred in precluding evidence

of a Facebook message or photo posted by Victim.              We first recount that

Appellant filed a pre-trial motion in limine, which alleged that on December 6,

2016, Victim posted on Facebook “an obscene picture” of “a naked woman on

all fours with her bottom in the air. The photo is titled Dick’quil. The caption

reads, ‘That Deep-stroking, Hair pullin, Ass slapping, Gut bangin, Waist

Grippin, Neck choking, Toe curlin, Leg Shakin, Shit talkin medicine TO MAKE

YOU CUM.’” Appellant’s Motion in Limine, 9/8/17, at 2. The motion averred

that on that same day, Victim had participated in a forensic interview, in which

she “describe[d] the alleged rape and how traumatic it has been both

psychologically and emotionally.” Id. Appellant argued the Facebook post

did not violate the Rape Shield Law,10 and he sought to present it in order to

impeach Victim’s credibility. The trial court initially granted this motion, but

at    a    hearing   on   October    13,   2017,    the   Commonwealth     requested

reconsideration,       arguing    the   Facebook     post   was   precluded    under

Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003) (en banc) (Rape

Shield Law applies to sexual activity that occurred before trial, regardless of




____________________________________________


10   18 Pa.C.S. § 3104 (discussed infra).


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whether it was before or after alleged sexual assault). On November 1, 2017,

the court issued an order precluding the Facebook post at trial.

       On appeal, Appellant argues the evidence was admissible, not to show

Victim’s promiscuity, but rather to undermine Victim’s credibility pursuant to

Killen, 680 A.2d 851. He avers that in that case, our Supreme Court held

“suggestive statements made by the victim shortly after the alleged sexual

assault were admissible, not to show her promiscuous demeanor, but to

undermine the credibility of her claims that she had been sexually assaulted.”

Appellant’s Brief at 43, citing Killen, 680 A.2d at 854. We note the trial court’s

reasoning for denying Appellant’s motion in limine is not set forth in its opinion

or the certified record.11 Nevertheless, we conclude no relief is due.

       The Rape Shield Law, codified at 18 Pa.C.S. § 3104, provides in

pertinent part:

       Evidence of specific instances 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 of any
       [sexual offense] 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.




____________________________________________


11While the trial court’s opinion sets forth relevant law, including the Rape
Shield Law statute and a summary of Killen, it did not state its reasons for
precluding the proffered evidence. See Trial Ct. Op. at 7.

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18 Pa.C.S. § 3104(a), (c). “The purpose of the Rape Shield Law is to prevent

a sexual assault trial from denigrating into an attack upon the victim’s

reputation for chastity.” Killen, 680 A.2d at 853.

       In Killen, upon which Appellant relies, the complainant alleged she was

intoxicated when a uniformed police officer stopped her vehicle “in front of her

apartment for a speeding violation.” Killen, 680 A.2d at 851. The officer

allowed the complainant to go into her apartment to get her driver’s license,

and followed her into the apartment. Id. at 852. The complainant alleged

the officer fondled her, took off his pants and underwear, and pushed her head

in order for her to perform oral sex. Id. The officer left, and shortly thereafter

the complainant reported what had just happened to a neighbor. Id. The

neighbor called an ambulance, and while waiting for it, “observed the

complainant apparently lapse in and out of consciousness twice.” Id. During

the ambulance ride to the medical center, the complainant made “sexually

provocative statements” to the firefighter riding with her, as well as to the

emergency room physician. Id. at 852-53.

       At trial, the officer sought to introduce the statements to the fireman

and physician “for the limited purpose of impeaching the complainant’s

credibility by demonstrating her state of mind immediately after the alleged

attack.” Killen, 680 A.2d at 854 (footnote omitted). Our Supreme Court held

the statements did not come within the protective purview of the Rape Shield

Law.   Id.   It reasoned the statements did “not reference in any way the


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J-A08040-20


complainant’s past sexual conduct as proscribed by § 3104(a); rather, the

statements evidence the complainant’s state of mind shortly after (and by

implication during) her alleged sexual assault and are therefore relevant and

admissible to impeach her credibility.” Id.

      Here, Appellant does not claim that Victim’s alleged Facebook post was

made “shortly after” the incident; we note it would have been made nine

months later. See Killen, 680 A.2d at 854. Instead, Appellant avers the post

was made on the same day Victim participated in a forensic interview. We

disagree that such evidence would show, consistent with Killen, Victim’s state

of mind “shortly after (and by implication during) [the] alleged sexual assault.”

See id. Thus, we disagree that relief is due under Killen.

      Furthermore, even if Killen lent Appellant relief, he makes no argument

on appeal regarding Jones, the decision cited by the Commonwealth at the

October 13, 2017, hearing. In Jones, this Court held the Rape Shield Law

does not only preclude evidence of a victim’s sexual conduct that occurred

prior to an alleged sexual assault, but the Rape Shield Law “must be read

more broadly” to include “the complainant's entire sexual history that has

occurred before trial.” Jones, 826 A.2d at 908 (emphasis added).

      Considering this authority together, as well as our standard of review —

that the admission of evidence was vested within the trial court’s sound

discretion — we conclude the alleged Facebook post by Victim was properly

precluded, and that Appellant is not entitled to relief under Killen.       See


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Gonzalez, 109 A.3d at 726. We note the Pennsylvania Supreme Court has

recently granted allowance of appeal to consider Jones. Commonwealth v.

Rogers, 523 EAL 2019 (Pa. Feb. 12, 2020).           Nevertheless, where the

Supreme Court has not yet issued a decision, Jones remains binding on this

Court. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).

      In Appellant’s sixth issue, he avers the trial court erred in denying his

request for “Jury Instruction[ ] 3.21B (failure to produce Documents or Other

Tangible Objects),” with respect to the “missing clothes” that Victim was

wearing during the incident, and “4.08A (Impeachment by Inconsistent

Statements),” with respect to the “dramatic” alterations, “through the course

of this case,” to “many important details, from the date of the incident to

conduct after the incident.” Appellant’s Brief at 45-46; see N.T., 1/18/18, at

67.

      The Commonwealth contends Appellant has waived this issue for failure

to object to the jury instructions as given. Commonwealth’s Brief at 30. “No

portions of the charge nor omissions from the charge may be assigned as

error, unless specific objections are made thereto before the jury retires to

deliberate.” Pa.R.Crim.P. 647(C) (emphasis added). Under Rule 647(C), the

failure to object or take exception to a jury instruction before the jury

retires to deliberate results in waiver of review of the instruction.

Commonwealth v. Laird, 988 A.2d 618, 646 (Pa. 2010).                See also

Commonwealth v. Cosby, 224 A.3d 372, ___, 2019 WL 6711477 at ** 37-


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38 (Pa. Super. Dec. 10, 2019) (party’s “objections at the charging conference

were not sufficient to preserve his challenge to the consciousness-of-guilt jury

charge issued by the trial court because he did not also object when the charge

was given to the jury”).

      Here, the trial court conducted a pre-charging conference following the

presentation of evidence. N.T., 1/18/18, at 66-67. Appellant recounted to

the court that it had requested the “3.21B” and “4.08A” instructions, but the

court had denied it. Id. at 67. The parties then gave closing arguments, id.

at 70-105, and the court issued its instructions to the jury. Id. at 105-28.

No objections were made during the instructions. See id. Thereafter, the

court asked the parties whether they had any objections, and Appellant

objected only to the court’s misstatement of a date of a forensic interview.

Id. at 128-29. The court agreed, and advised the jury of the correct date.

130-131. No other objections were raised before the jury retired to deliberate.

See id. at 131. Although Appellant had requested certain instructions, which

were denied, he did not object to the instructions as they were in fact given.

According, this issue is waived for our review. See Pa.Crim.P. 647(C); Laird,

988 A.2d at 646; Cosby, 224 A.3d at ___, 2019 WL 6711477 at ** 37-38.




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       In his final issue, Appellant avers the verdict was against the weight of

the evidence.12       He contends this Court “can see that the complaining

witnesses all altered their stories, failed to accurately account for time, and

were directly contradicted by their own statements in written accounts from

the hospital, forensic interview, and police statement.” Appellant’s Brief at

52. Appellant also contends “the medical records” contained no evidence of

sexual assault, and there was “blatant lack of follow through and investigation

by” Officer Dewees. Id. at 53. We disagree.

       This Court has stated:

            The weight of the evidence is exclusively for the finder of
            fact who is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact.

       Moreover, where the trial court has ruled on the weight claim
       below, an appellate court’s role is not to consider the underlying
       question of whether the verdict is against the weight of the
       evidence. Rather, appellate review is limited to whether the trial
       court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

omitted). It is well established “that uncorroborated testimony of the victim

can be sufficient to sustain a conviction of rape.” Commonwealth v. Loner,

836 A.2d 125, 137 (Pa. Super. 2003).



____________________________________________


12 In this issue, Appellant does not reference any of his convictions, let alone
discuss which elements of which offense were allegedly not established.


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      Appellant fails to acknowledge any of these principles. His argument

wholly ignores the role of the jury, who as the finder of fact, was “free to

believe all, part, or none of the evidence and to determine the credibility of

the witnesses.” See Champney, 832 A.2d at 408. Appellant also ignores

that the trial court denied relief on this issue as raised in his post-sentence

motion.     See Order, 5/4/19.     The court reasoned that “[e]ven with any

perceived    absence   of   ‘investigatory     information,’”   Victim’s   testimony

supported the jury’s verdict. Trial Ct. Op. at 8-9. Appellant’s argument would

have this Court conduct de novo review of the record and supplant the jury’s

findings with our own. This we cannot do. See Champney, 832 A.2d at 408.

      In sum, we conclude Appellant has waived his challenges to: portions of

Nurse Lynch’s testimony; the court’s alleged failure to sequester witnesses

and error “in allowing mid-trial conferences with a professional witness;” and

the jury instructions. See Appellant’s Brief at 31. We further hold: no relief

is due to Appellant under Brady; the trial court properly precluded Victim’s

mental health records under the psychotherapist-patient privilege; the court

properly precluded evidence of an alleged Facebook post by Victim, and the

verdict was not against the weight of the evidence. Accordingly, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.




                                      - 24 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020




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