J. A30034/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
LARRY J. CRAGLE,                         :          No. 548 WDA 2017
                                         :
                        Appellant        :

          Appeal from the Judgment of Sentence, August 27, 2015,
             in the Court of Common Pleas of Lawrence County
             Criminal Division at Nos. CP-37-CR-0000695-2012,
                          CP-37-CR-0000830-2013

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 6, 2018

      Appellant, Larry J. Cragle, appeals from the August 27, 2015 judgment

of sentence entered in the Court of Common Pleas of Lawrence County

following his convictions in a jury trial of two counts of indecent assault of a

person less than 16 years of age at case No. CP-37-CR-0000695-2012, and

one count of rape by forcible compulsion, three counts of statutory sexual

assault, and three counts of sexual assault at case No. CP-37-CR-0000830-

2013.1    The trial court sentenced appellant to an aggregate term of

incarceration of 17 to 37 years. We affirm.


1  18 Pa.C.S.A.    §§   3126(a)(8),   3121(a)(1),   3122.1,   and   3124.1(b),
respectively.

We also note that the trial court consolidated the cases docketed at
Nos. CP-37-CR-0000695-2012 and CP-37-CR-0000830-2030 pursuant to
Pa.R.Crim.P. 582 and Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988).
(See trial court opinion, 1/28/14 at 10-16.)
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     The trial court set forth the following:

                 These cases arose following allegations of
           sexual molestation made by [appellant’s] thirteen-
           year-old niece. At both cases, the victim testified that
           while she was living with [appellant], [appellant]
           sexually assaulted her on multiple occasions at his
           residence from August of 2011 through April of 2012.
           The victim moved into [appellant’s] house in August
           of 2011 to live with him, her aunt, her grandma and
           five cousins.     According to the victim, almost
           immediately after she moved in, [appellant] started
           asking her to flash her breasts to him when they were
           alone in the house. When she complied, [appellant]
           would begin to touch and lick her breasts. This
           occurred fifteen or more times on almost a daily basis.
           The victim described those incidents as routine,
           further stating that [appellant] also asked her to
           perform oral sex on him at least once, which request
           she refused.

                 Additionally, the victim testified that she
           engaged in sexual intercourse with [appellant] on
           three separate occasions.

                 At the time of trial, [appellant] filed a written
           Motion in Limine wherein he alleged that the victim
           had made statements to both her maternal
           grandmother and aunt that she would make false
           allegations to the police that sexual conduct was
           occurring between herself and an adult male who was
           not [appellant] in this case. Further, [appellant]
           alleged in his motion that the victim had made false
           statements that she had been having sex with men
           when she was allowed to have unsupervised visits
           with her mother. The sexual conduct the victim said
           she would lie or did lie about was to have occurred
           during the same period of time as the sexual activity
           alleged in the Information filed in these cases. Finally,
           [appellant] alleged that the allegations against
           [appellant] in the instant case were made as a
           fabrication in exchange for assurance that sexual
           assault charges would not be filed against her, as the
           victim had been placed in a juvenile sex offender


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            treatment program due to allegations of sexual
            assault by the victim on her siblings and cousins.
            [Appellant] sought to prove at trial that in exchange
            for the victim’s allegations of prior sexual abuse by
            [appellant], the victim would not have to suffer the
            fear of having sexual assault charges filed or pursued
            against her, thus showing a motive to fabricate the
            current charges.

                  The Court issued its ruling on [appellant’s]
            Motion in Limine by Order of Court dated February 10,
            2015, which directed that [appellant] could examine
            and/or present evidence that the alleged victim
            received favorable treatment relative to juvenile
            dependency or delinquency proceedings against her in
            exchange for or as a motive for identifying [appellant]
            as having perpetrated the alleged assault against her
            but that otherwise the motion was denied.

                  As noted, the Court did grant [appellant’s]
            Motion in Limine to the extent that the Court
            permitted [appellant] to examine and/or present
            evidence that the alleged victim received favorable
            treatment relative to juvenile dependency or
            delinquency proceedings against her in exchange for
            or as a motive for identifying [appellant] as having
            perpetrated the alleged acts against her even though
            those proceedings arose out of allegations that the
            alleged victim herself has committed acts of sexual
            assault.

Trial court opinion, 5/26/17 at 3-5.

      Following his convictions,

            [appellant] filed a timely post-sentence motion
            consisting of a Motion for Judgment of Acquittal
            challenging the sufficiency of the evidence to sustain
            the convictions, a Motion for [a] New Trial contending
            that the verdicts were against the weight of the
            evidence, and a Motion for Sentence Modification.




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                  On December 16, 2015, this Court issued its
            Opinion and Order of Court which dismissed
            [appellant’s] post-sentence motions in their entirety.

                   An   appeal    following    the   dismissal    of
            [appellant’s] post-sentence motions was not timely
            filed on behalf of [appellant]. [Appellant] timely filed
            a motion for Post-Conviction Collateral Relief, the
            result of which was an Order of Court issued March 10,
            2017 which reinstated [appellant’s] direct appeal
            rights, nunc pro tunc. [Appellant] timely appealed as
            authorized by the March 10, 2017 Order of Court.
            Following the filing of the appeal, this Court directed
            counsel for [appellant] to file a Concise Statement of
            Matters Complained of on Appeal [pursuant to
            Pa.R.A.P. 1925(b)], and [appellant’s] concise
            statement was filed on April 25, 2017.

Id. at 2.

      Appellant raises the following issues for our review:

            [1.]   Was the trial court’s failure to grant appellant’s
                   motion in limine and allow the disclosure of
                   relevant evidence of the accuser’s propensity to
                   falsify sexual abuse manifestly unreasonable?

            [2.]   Was the evidence insufficient as a matter of law
                   to support a conviction of sexual assault in the
                   sleep-over count for failure to establish that the
                   accuser did not consent to sexual intercourse
                   with the appellant?

            [3.]   Was the evidence insufficient as a matter of law
                   to support a conviction of rape, statutory sexual
                   assault, and sexual assault in the trampoline
                   incident because the Commonwealth failed to
                   establish the date of the incident with sufficient
                   particularity?

            [4.]   Did the trial court abuse its discretion in allowing
                   an impermissible opinion from an expert witness
                   as to the credibility of the accuser?



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Appellant’s brief at 6 (underscoring and unnecessary capitalization omitted).

     Appellant first complains that the trial court abused its discretion when

it denied appellant’s motion in limine and (1) prohibited appellant from

introducing evidence that the victim had made statements to her maternal

grandmother and aunt that she would lie to police and deny being sexually

assaulted by another adult male; and (2) prohibited appellant from

introducing evidence that the victim made false statements that she had been

having sex with men during unsupervised visits with her mother.

     We begin with our standard of review.

            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 of record, discretion is abused.

Commonwealth v. K.S.F., 102 A.3d 480, 483 (Pa.Super. 2014) (citations

omitted).

     The Rape Shield Law provides, in relevant part:

            § 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 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


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                  victim is at issue and such evidence is otherwise
                  admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a).

      This court has discussed the interplay between the purpose of the Rape

Shield Law and the constitutional rights of the accused, as follows:

            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,
            434 Pa. Super. 414, 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. [Commonwealth v. Black, 487 A.2d
            396, 401 (Pa.Super. 1985)]. 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) whether there are alternative means of proving
            bias or motive or to challenge credibility.” Id.

K.S.F., 102 A.3d at 483-484.

      Here, appellant sought to introduce evidence that the victim made

statements to her maternal grandmother and aunt that she would lie to police

and deny being sexually assaulted by an unidentified adult male and that the

victim made false statements to an unidentified person or unidentified persons

that the victim lied about having sex with unidentified adult males.

(Appellant’s motion in limine, 2/11/15 at unnumbered pages 1-4.) Appellant


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contends that the proposed evidence was relevant to attack the victim’s

credibility. (Id.; see also appellant’s brief at 20-23.)

       Although the Rape Shield Law may not be used to exclude relevant

evidence attacking a witness’s credibility to demonstrate that witness’s motive

to lie, the evidence must demonstrate that the witness had a motive to lie or

that   the   witness   harbored     bias    or   hostility   against   the   defendant.

Commonwealth v. Gaddis, 639 A.2d 462, 466 (Pa.Super. 1994) (noting that

although the Black court held that the Rape Shield Law may not be used to

exclude relevant evidence attacking credibility or showing a witness’s bias,

subsequent decisions have narrowly applied the Black holding to admit such

evidence “only where the victim’s credibility was allegedly affected by ‘bias

against or hostility toward the defendant, or the victim had a motive to seek

retribution” (citation omitted)).

       In applying the first prong of the Black test to this case, appellant fails

to demonstrate how evidence that the victim made statements that she would

lie about being sexually assaulted by someone other than appellant and that

she had lied about having sex with men other than appellant is relevant to

show that the victim had a motive to lie with respect to having been sexually

assaulted by appellant or that the victim was biased against and/or harbored

hostility against appellant. As stated by the trial court, “there is no connection

between the allegations of false accusations made by the victim [to appellant]

in this case.” (Trial court opinion, 5/26/17 at 9.)



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      As to the second prong of the Black test, the trial court, relying on

Gaddis, found that the prejudicial impact of the proposed evidence would far

outweigh any probative value because admission of allegedly false statements

about unsubstantiated sexual conduct with unidentified men would leave the

jury to speculate as to the truth of these allegedly false allegations which

would “result in several trials within [appellant’s] trial to establish whether in

fact the alleged incidents were true or false.” (Id.) Indeed, in Gaddis, this

court recognized that the prejudicial impact of admitting evidence that would

leave the jury to speculate about the truth or falsity of facts alleged concerning

incidents where no prior truth-determining process established the veracity of

the allegations and where the alleged statements had no connection to the

defendant would far outweigh its probative value. Gaddis, 639 at 467. In an

attempt to convince this court otherwise, appellant asserts that the proposed

evidence was not meant “to drag [the victim] through the mud, but to properly

defend himself in these serious allegations.”        (Appellant’s brief at 22.)

Appellant’s assertion, however, misses the mark because it fails to

demonstrate how the prejudicial impact of the proposed evidence would have

been outweighed by its probative value. Additionally, here, much like Gaddis,

admission of evidence of statements regarding unsubstantiated allegations of

the victim’s sexual conduct with unidentified men would leave the jury to

speculate as to the truth of those statements. Appellant offers no argument

to the contrary.



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      With respect to the final prong of the Black test, appellant had

alternative means to prove bias or motive, as well as alternative means to

challenge the victim’s credibility.       Specifically, the trial court permitted

appellant to introduce evidence that the victim fabricated the allegations of

sexual assault against appellant in exchange for favorable treatment in a

juvenile delinquency proceeding involving the victim. The record also reflects

that appellant utilized various methods at trial in an effort to impeach the

victim’s   credibility,   including    extensive   cross-examination    concerning

inconsistencies and contradictions between her direct examination trial

testimony and statements that she made at appellant’s preliminary hearing,

as well as statements she made to forensic interviewer Janet Wilson. (Notes

of testimony, 2/11/15 at 40-61; 84-88; 94-99.) Consequently, we discern no

abuse of discretion.

      Appellant next challenges the sufficiency of the evidence to sustain his

conviction   for   sexual    assault   because,    according   to   appellant,   the

Commonwealth failed to prove the victim’s lack of consent.             A reading of

appellant’s brief on this issue reveals that he does nothing more than set forth

certain portions of the victim’s trial testimony which he contends if “taken as

true, [] clearly shows that sexual intercourse did not occur until [the victim]

consented” in an effort to convince this court that the victim consented to one

act of sexual intercourse.     (Appellant’s brief at 25.) In so doing, appellant

challenges the weight of the evidence, not its sufficiency.             See, e.g.,



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Commonwealth v. Gibbs, 981 A.2d 274, 281-282 (Pa.Super. 2008) (an

argument that the fact-finder should have credited one witness’s testimony

over that of another witness goes to the weight of the evidence, not the

sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-

714 (Pa.Super. 2003) (a review of the sufficiency of the evidence does not

include a credibility assessment; such a claim goes to the weight of the

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997)

(the fact-finder makes credibility determinations, and challenges to those

determinations go to the weight of the evidence, not the sufficiency of the

evidence).2

              The essence of appellate review for a weight claim
              appears to lie in ensuring that the trial court’s decision
              has record support. Where the record adequately
              supports the trial court, the trial court has acted within
              the limits of its discretion.

              ....

              A motion for a new trial based on a claim that the
              verdict is against the weight of the evidence is
              addressed to the discretion of the trial court. A new
              trial should not be granted because of a mere conflict
              in the testimony or because the judge on the same
              facts would have arrived at a different conclusion.
              Rather, the role of the trial judge is to determine that
              notwithstanding all the facts, certain facts are so
              clearly of greater weight that to ignore them or to give
              them equal weight with all the facts is to deny justice.

              ....


2 In accordance with Pa.R.Crim.P. 607(A), appellant preserved his weight
challenge in a post-sentence motion.


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            An appellate court’s standard of review when
            presented with a weight of the evidence claim is
            distinct from the standard of review applied by the
            trial court. Appellate review of a weight claim is a
            review of the exercise of discretion, not of the
            underlying question of whether the verdict is against
            the weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations and

quotation marks omitted). “In order for a defendant to prevail on a challenge

to the weight of the evidence, ‘the evidence must be so tenuous, vague and

uncertain   that   the   verdict   shocks     the   conscience   of   the   court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013) (citation

omitted).

      In his brief, appellant invites us to do nothing more than assess the

victim’s credibility and reweigh the evidence in an attempt to convince us to

reach a different result than the jury reached.          We decline appellant’s

invitation. The jury, as fact-finder, had the duty to determine the credibility

of the testimony and evidence presented at trial. See id. Appellate courts

cannot and do not substitute their judgment for that of the fact-finder. See

id. Therefore, this claim lacks merit.

      Appellant next claims that the evidence was insufficient to support his

convictions of rape, statutory sexual assault, and sexual assault because the

Commonwealth failed to establish the date of the incident, which the parties

refer to as the “trampoline incident,” that served as the factual basis for these

convictions with sufficient particularity. In so contending, appellant does not



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complain that the Commonwealth failed to prove any element of any of these

three crimes of which he was convicted in connection with the trampoline

incident; rather, appellant argues that the evidence was insufficient to support

these convictions because the victim’s testimony was not sufficiently specific

regarding the date as to when the trampoline incident occurred. Appellant’s

argument implicates a violation of his due process right to defend against the

charges.

       At the outset, we note that the criminal information must “fix the date

when     an    alleged    offense   occurred    with   reasonable      certainty.”

Commonwealth v. Jette, 818 A.2d 533, 535 (Pa.Super. 2003) (citation and

quotation marks omitted). “The purpose of this requirement is to provide the

defendant with sufficient notice to meet the charges and prepare a defense.”

Commonwealth v. Gibbons, 784 A.2d 776, 780 n. 2 (Pa. 2001) (Saylor, J.,

concurring) (citation omitted).

              However, “[d]ue process is not reducible to a
              mathematical formula,” and the Commonwealth does
              not always need to prove a specific date of an alleged
              crime. Commonwealth v. Devlin, 460 Pa. 508, 333
              A.2d 888, 892 ([Pa.] 1975) . . . Permissible leeway
              regarding the date provided varies with, inter alia,
              the nature of the crime and the rights of the accused.
              See Pa.R.Crim.P. 560(B)(3), stating that it shall be
              sufficient for the Commonwealth to provide in the
              information, if the precise date of an offense is not
              known, an allegation that the offense was committed
              on or about any date within the period fixed by the
              statute of limitations.




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Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super. 2006) (some

citations omitted).

      Here,     the     amended       criminal       information    at     case

no. CP-37-CR-0000830-2013 reflects that appellant committed the offenses

on September 11, 2011. (Case no. CP-37-CR-0000830-2013 docket no. 37.)

Indeed, appellant acknowledges that the criminal information reflects that the

crimes occurred on September 11, 2011. (Appellant’s brief at 30.) Appellant

then states that he “developed his defense according to this notice,” but “at

trial[, the victim’s] testimony was different [in that] [s]he stated that the

[t]rampoline [i]ncident occurred when it was winter.” (Id.) Appellant then

illogically concludes that he was denied due process because the victim’s

testimony as to when the trampoline incident occurred contradicted the date

contained in the criminal information.           Appellant is mistaken.     The

inconsistency regarding the victim’s recollection of when the trampoline

incident occurred and the date reflected in the criminal information implicates

nothing more than the victim’s credibility. Accordingly, it was for the jury, as

fact-finder, to resolve this contradiction. See Talbert, 129 A.3d at 546 (the

fact-finder determines the credibility of the testimony and evidence presented

at trial). Consequently, this claim lacks merit.




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      Appellant      finally   complains    that   the    Commonwealth’s        expert,

Janice Wilson, a forensic interviewer in sexual assault cases involving children,

provided impermissible opinion testimony regarding the victim’s credibility.3

      At the outset, we note that appellant violated Pa.R.A.P. 2119(c) by

failing to provide record citations to show that the record supports his

contention that Ms. Wilson impermissibly testified as to the victim’s credibility.

See Pa.R.A.P. 2119(c) (requiring a reference to the place in the record where

the matter referred to appears).           Nevertheless, our review of the record

demonstrates that appellant placed no objections on the record during

Ms. Wilson’s testimony. Therefore, appellant waives this issue on appeal. See

Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super. 2013)

(reiterating   the    long-standing   principle    that   a   “[f]ailure   to   raise   a

contemporaneous objection to the evidence at trial waives that claim on

appeal” (citations omitted); see also Pa.R.A.P. 302(a).

      Notwithstanding appellant’s waiver of this issue on appeal, we finally

note that our review of the record reveals that to the extent that Ms. Wilson

offered opinion testimony regarding the victim’s credibility, such testimony

was elicited during appellant’s cross-examination of this witness. (See notes

of testimony, 2/12/15 at 129-130.)           Therefore, even if appellant had not




3 Although a qualified expert in sexual assault cases may testify to facts and
opinions regarding specific types of victim responses and victim behaviors, an
expert’s opinion testimony regarding the credibility of any other witness,
including the victim, shall not be admissible. 42 Pa.C.S.A. § 5920(b)(3)-(4).


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waived this issue, the claim would fail because an appellant cannot elicit

inadmissible testimony on cross-examination and then complain about it on

appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2018




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