J-A32016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                                   :      IN THE SUPERIOR COURT OF
 PENNSYLVANIA                                      :           PENNSYLVANIA
                                                   :
                            Appellant              :
                                                   :
                                                   :
                 v.                                :
                                                   :
                                                   :      No. 466 MDA 2017
 DAYAR D. BROWN

              Appeal from the Order Entered March 15, 2017
    In the Court of Common Pleas of Centre County Criminal Division at
                      No(s): CP-14-CR-0000400-2016


BEFORE:    OTT, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.:                                          FILED JUNE 06, 2018

     Appellant, Commonwealth of Pennsylvania (“Commonwealth”), appeals

from the March 15, 2017 Order entered in the Centre County Court of Common

Pleas, which, inter alia, denied the Commonwealth’s Motion to Preserve the

Rape Shield Law and granted Appellee’s Motion in Limine to present evidence

of Complainant’s prior sexual conduct. Upon careful review, we reverse.

FACTUAL AND PROCEDURAL HISTORY

     The factual and procedural history, as gleaned from the trial court’s

Opinion,   are        as    follows.       On   October    28,   2015,   16-year-old      G.L.

(“Complainant”)            visited   her   co-worker,     22-year-old    Appellee,   at    his

apartment. Complainant alleges that she entered Appellee’s bedroom where

he proceeded to rape her. Appellee concedes that he had sexual intercourse

with Complainant, but maintains that the sexual intercourse was consensual.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On November 6, 2015, Complainant sought medical treatment at

Planned Parenthood and disclosed that Appellee raped her.            Planned

Parenthood contacted the Pennsylvania State Police (“PSP”).

       On November 7, 2015, Complainant met with the PSP. Complainant

told the PSP that Appellee did not wear a condom during the alleged rape and

seminal fluid was present on her lower body afterwards.         Complainant

informed the PSP that she had not washed the clothing that she wore on the

evening of the alleged rape.

       Complainant provided the clothing that she wore that night to the PSP,

who sent it to the PSP Crime Lab for testing.     The PSP Crime Lab found

spermatozoa, or semen, on Complainant’s underwear and proceeded to

conduct a DNA test. The DNA test results excluded Appellee as the source of

the semen and identified another male (“Mr. D”) to be the source of the

semen.1

       On March 30, 2016, the District Attorney charged Appellee with Rape by

Forcible Compulsion, Sexual Assault, and Corruption of Minors.2 On February

27, 2017, the Commonwealth filed Motions in Limine, including, inter alia, a

Motion to Preserve the Rape Shield Law, which requested that the trial court

preclude Appellee from introducing evidence at trial concerning Complainant’s
____________________________________________


1Court documents only identify this minor male by his last name, and, thus,
we will refer to him as “Mr. D.”

2 18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3124.1; and 18 Pa.C.S. § 6301(a),
respectively.


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sexual conduct and/or reputation. On the same day, Appellee filed a Motion

in   Limine   seeking,     inter   alia,   permission   to   introduce   evidence   of

Complainant’s sexual conduct.

       Appellee sought to use the evidence of Mr. D’s semen on Complainant’s

underwear to demonstrate that Complainant had a sexual relationship with

Mr. D at the time of the alleged rape and thus, had a motive to testify falsely

that she did not consent to the sexual intercourse with Appellee in order to

preserve that relationship.3

       The Commonwealth, in contrast, argued that at the time of the alleged

rape, Complainant had already terminated her relationship with Mr. D and

thus, she had no motive to testify falsely that she did not consent because

she had no relationship to maintain.

       On March 13, 2017, the trial court held an in camera hearing on the

Motions in Limine. The Commonwealth called an expert witness, Jennifer

Marchland, a forensic scientist employed by the PSP Crime Lab who is an




____________________________________________


3 Appellee also proffered that the evidence was relevant to: (1) challenge
Complainant’s credibility by showing a prior inconsistent statement as to when
she last had sexual intercourse with Mr. D; and (2) show that Complainant
had a motive to fabricate the rape allegation so she could seek pregnancy and
STD testing at Planned Parenthood. The trial court rejected the introduction
of the proffered evidence for these purposes, concluding that it would be more
prejudicial than probative. See Findings of Fact, Conclusions of Law, and
Order, dated 3/15/17, at 5.




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expert in serology.4 Ms. Marchland testified that she tested Complainant’s

clothing and found spermatozoa, or semen, on the crotch area of

Complainant’s underwear.          N.T., Motion, 3/13/17, at 69.   She, however,

testified that it cannot be determined when or how the semen was deposited

onto Complainant’s underwear. Id. at 73. Ms. Marchland further testified

that no scientific test exists to determine how long ago semen was deposited

onto clothing. Id. at 70. She explained that detectable semen can last on

clothing for several years, survive under most conditions, survive multiple

launderings, and transfer from one article of clothing to another in a shared

washing machine. Id. at 70, 72-73.

       Appellee presented no evidence refuting Ms. Marchland’s testimony that

it cannot be determined when Mr. D’s semen was deposited on Complainant’s

underwear.

       On March 15, 2017, the trial court granted Appellee’s Motion in Limine

to permit introduction of Complainant’s sexual conduct with Mr. D, specifically

the introduction of DNA evidence showing the presence of Mr. D’s semen on

Complainant’s underwear. The trial court concluded that the evidence of Mr.

D’s semen on Complainant’s underwear was relevant to the issue of whether

Complainant was in an ongoing relationship with Mr. D. If Complainant were

____________________________________________


4 Ms. Marchland testified that serology is the study of blood. Ms. Marchland
explained, “[i]n forensic serology I examine and identify blood in addition to
other body fluids such as semen and saliva and urine. I also conduct hair
examinations and I conduct blood stain pattern analysis.” N.T. Motion,
3/13/17, at 65.

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involved in a relationship, the court opined, Complainant would have a motive

to testify falsely that she did not consent to alleged rape. See Findings of

Fact, Conclusions of Law, and Order, dated 3/15/17, at 4. The trial court then

concluded that the proffered evidence was more probative than prejudicial

and non-cumulative. Id.

       On the same day, the trial court denied the Commonwealth’s Motion to

Preserve the Rape Shield.

       The Commonwealth filed a timely Notice of Appeal. 5            Both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.

ISSUE ON APPEAL

       The Commonwealth raises one issue for our review:

       Did the [trial court] err in granting [Appellee]’s motion to pierce
       Rape Shield protections in order to both cross examine a minor
       rape victim and introduce extrinsic DNA evidence of her prior,
       consensual, sexual relationship with an individual other than
       [Appellee] and commit an abuse of discretion by denying the
       Commonwealth’s Motion in [L]imine to exclude such irrelevant,
       statutorily protected evidence?

Commonwealth’s Brief at 4.
____________________________________________


5  The trial court’s March 15, 2017 Order is an appealable collateral order
pursuant to Pa.R.A.P. 311(a). See Commonwealth v. Minich, 4 A.3d 1063,
1067-68 (Pa. Super. 2010)         (holding that trial court's order denying
Commonwealth's in limine motion to exclude evidence of child rape victim's
alleged dishonest conduct, in that he had been caught lying in school, was an
appealable collateral order; resolution of issue did not require consideration
of defendant's guilt or innocence, child's privacy interests were matters of
paramount concern which were too important to be denied review until final
judgment, and in event of an acquittal, Commonwealth's ability to appeal the
evidentiary issue would be irreparably lost if review were postponed until after
final judgment, due to constitutional prohibition against double jeopardy).

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STANDARD OF REVIEW

      This Court has established that a trial court’s ruling on the admissibility

of a sexual abuse victim’s prior sexual conduct will be reversed only where

there has been a clear abuse of discretion. Commonwealth v. K.S.F., 102

A.3d 480, 483 (Pa. Super. 2014). “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 or the record,

discretion is abused.” Id. (citation and quotation omitted).

THE RAPE SHIELD LAW

      The Rape Shield Law restricts the introduction of evidence of a victim’s

past sexual conduct and 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. § 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.” Commonwealth v. Burns, 988 A.2d 684, 689

(Pa. Super. 2009) (citation omitted). Moreover, “[t]he Rape Shield Law is

intended to exclude irrelevant and abusive inquiries regarding prior sexual

conduct of sexual assault complainants.” Id.


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      The Rape Shield Law includes one statutory exception to the general

prohibition against evidence of victim’s past sexual conduct, namely the

admission of evidence of past sexual conduct with the defendant where

consent is at issue. See 18 Pa.C.S. § 3104(a). In addition, this Court has

recognized several other exceptions in an effort “to reconcile the effect of the

statute in excluding evidence with the accused's sixth amendment right to

confrontation and cross-examination.” Commonwealth v. Guy, 686 A.2d

397, 400 (Pa. Super. 1996). Established exceptions include evidence that

directly negates the act of intercourse with which a defendant is charged,

evidence demonstrating a witness' bias, or evidence that attacks credibility.

Commonwealth v. Allburn, 721 A.2d 363, 367 (Pa. Super. 1998). Notably,

“evidence tending to directly exculpate the accused by showing that the

alleged victim is biased and thus has a motive to lie, fabricate, or seek

retribution is admissible at trial.” Guy, supra at 400. In other words, the

evidence must be “relevant to exculpate the accused, more probative than

prejudicial, and non-cumulative in nature.” Id. at 401.

Piercing the Rape Shield Law

      Instantly, the Commonwealth avers that the trial court abused its

discretion when it allowed Appellee to pierce the Rape Shield Law.

Commonwealth’s Brief at 10. The Commonwealth argues, as an initial matter,

that the evidence of Mr. D’s semen on Complainant’s underwear is not relevant

to establish whether, at the time of the alleged rape, Mr. D and Complainant

were involved in a relationship because Ms. Marchland testified that it cannot

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be determined when or how the semen was deposited on the underwear. Id.

at 20. We agree.

      The trial court erred by ignoring the undisputed expert testimony that it

could not be determined from the semen sample when Complainant and Mr.

D had sex. The trial court instead erroneously concluded that the existence

of the semen itself is relevant because it can permit the fact-finder to

determine whether there was an ongoing relationship between Complainant

and Mr. D at the time of the alleged rape. However, the expert could not

conclude when Mr. D deposited semen on Complainant’s underwear. Thus,

the presence of Mr. D’s semen on Complainant’s underwear does not make it

any more or less likely that, on the night of the alleged rape, Complainant was

in an ongoing relationship with Mr. D and would thereby have a motive to

testify falsely that she did not consent to the rape.

      In light of the fact that the evidence is irrelevant to the issue of whether

Complainant had a motive to fabricate, questioning Complainant about the

sexual nature of her relationship with Mr. D serves no purpose other than to

shift focus “from the culpability of the accused toward the virtue and chastity

of the victim[,]” which is exactly what the Rape Shield Law was intended to

prevent. Burns, supra at 689.

      This holding, however, does not preclude Appellee’s counsel from cross-

examining Complainant about her alleged ongoing romantic relationship with

Mr. D in order to attempt to establish that Complainant had a relationship with

Mr. D at the time of the alleged rape and, thus, Complainant had a motive to

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J-A32016-17



lie about the lack of consent. Appellee’s counsel, however, cannot ask about

the sexual nature of that relationship because the evidence of the sexual

nature of the relationship is not relevant and is highly prejudicial.    See

Commonwealth v. Poindexter, 539 A.2d 1341, 1344 (Pa. Super. 1988)

(concluding that defendant could attempt to show the victim’s motive to

fabricate rape allegations by presenting evidence of her romantic relationship

with her boyfriend, but evidence that the relationship was sexual in nature

was non-probative and highly prejudicial).

      In sum, we find that the trial court erred in denying the Commonwealth’s

Motion in Limine to Preserve the Rape Shield Law and granting Appellee’s

Motion in Limine to present evidence of Complainant’s prior sexual conduct.

Upon remand, the trial court shall preclude Appellee from questioning

Complainant about the sexual nature of her relationship with Mr. D and from

introducing into evidence Complainant’s underwear that contained Mr. D’s

semen.

      Order reversed.     Case remanded with instructions.        Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/06/2018

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