J-S15012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICHARD RODRIGUEZ

                            Appellant                  No. 1113 MDA 2014


             Appeal from the Judgment of Sentence June 11, 2014
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000368-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                                  FILED JUNE 05, 2015

        Richard Rodriguez appeals from the judgment of sentence entered in

the Court of Common Pleas of Lebanon County following his convictions for

Sexual Assault, Aggravated Indecent Assault Without Consent of Other, and

Indecent Assault Without Consent of Other. After careful review, we affirm.

The trial court set forth the factual history as follows.

        [Rodriguez] was charged with two counts of Sexual Assault, 1 one
        count of Aggravated Indecent Assault Without Consent,2 and one
        count of Indecent Assault Without Consent of Other,3 for an
        incident which occurred on June 24, 2011 in the apartment of
        the victim, B.W.      After discovery was provided by the
        Commonwealth, [Rodriguez] filed a Motion to Compel additional
____________________________________________


1
    18 Pa.C.S.A. § 3124.1.
2
    18 Pa.C.S.A. § 3125(a)(1).
3
    18 Pa.C.S.A. § 3126(a)(1).
J-S15012-15


     discovery regarding a notation by Detective Keith Uhrich of the
     Lebanon City Police, which referenced two previous allegations of
     rape against other individuals by B.W.: “I investigated two
     previous rapes reported by [B.W.] and I knew her to be mentally
     retarded.”   When [Rodriguez] requested Detective Uhrich’s
     complete investigative file regarding those allegations, the
     Commonwealth denied the request on the basis of irrelevancy.
     [Rodriguez] subsequently filed a Motion to Compel the
     Commonwealth to provide that information.          By Order of
     September 6, 2013, we denied the Motion to Compel and the
     matter proceeded to a jury trial which was conducted on January
     7, 2014.

     The testimony at the jury trial revealed that at the time of the
     incident, [Rodriguez] was employed as a cable repairman. He
     had gone to B.W.’s apartment the day prior to the incident as
     B.W. had arranged a service call with [Rodriguez]’s employer.
     [Rodriguez] was unable to correct the problem that day, but
     offered to return to make the repairs the next day. He returned
     the next day, June 24, 2011, at around noon. He and B.W. were
     in the bedroom where the television was located. B.W. testified
     that [Rodriguez] started jumping on her, pulled down her pants,
     touched and sucked her breasts, and penetrated her vagina with
     his finger and his penis. After he pulled his penis from her
     vagina, he masturbated and ejaculated on her stomach and
     wiped his semen on a towel. She testified that the entire
     episode had taken approximately one hour.

     During the trial, Detective Uhrich testified that he had gone to
     B.W.’s apartment and located a towel with semen.           When
     Detective Uhrich initially questioned [Rodriguez], he denied
     having had any sexual contact with B.W. When told of the
     presence of semen on the towel, [Rodriguez] explained that he
     had wiped his sweat on it and stated that if the semen was his,
     he did not know how it got there. He spoke of having a possible
     lapse of memory and asked whether he could press charges if
     something had happened to him.

     Subsequent to the initial interview, [Rodriguez] called Detective
     Uhrich, admitted that he had not been truthful, and indicated
     that he was stressed and wanted to get things straightened out.
     [Rodriguez] explained that B.W. had manually stimulated his
     penis while the two were on her bed, and that he may have
     passed out during the episode, but that he was not sure. He


                                   -2-
J-S15012-15


      denied having committed a sexual assault on her                and
      complained that he did not want to lose his job or family.

      This conversation between Detective Uhrich and [Rodriguez] was
      recorded. Prior to trial, the Commonwealth submitted a motion
      in limine seeking permission to play the audio recording of the
      interview to the jury. Due to issues with the quality of the audio
      recording, we denied the Motion in Limine, but permitted
      Detective Uhrich to read the transcript of the recording to the
      jury.   The defense objected to the use or reading of the
      transcript on the basis that a minute and nine seconds of the
      conversation was lost as it had not been recorded.

      [Rodriguez] testified that while he worked on B.W.’s television,
      B.W. sat on the bed and flirted with him. After she began
      rubbing his body, he sat down on the bed and she unbuckled his
      pants and pulled down his zipper. He explained that he “just let
      it happen.” He claimed that she manually stimulated his penis
      until he ejaculated, but that he had no other physical contact
      with her and that he did not act out sexually on her. He admitted
      that he could only recall bits and pieces and that the details of
      the incident were a little blurry as the heat, the confined area
      and the time affected his memory. However, he insisted that
      B.W. initiated the act and that he had wanted to press charges
      against her.

      [Rodriguez] was found guilty of all charges and was sentenced
      on June 11, 2014 [to three to ten years’ incarceration at a state
      facility].

Trial Court Opinion, 9/5/14, at 1-4 [citations to record omitted].

      On July 8, 2014, Rodriguez filed a timely notice of appeal. On July 14,

2014, he filed his concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). The trial court filed its Rule 1925(a) opinion

on September 5, 2014.

      On appeal, Rodriguez presents the following issue for our review:

         Whether the trial court improperly denied defense
         counsel’s motion to compel discovery of previous
         allegations of rape [made] by [the] victim, and therefore
         deprived appellant of [probative] evidence.

                                     -3-
J-S15012-15



Appellant’s Brief, at 2.

      The trial court’s order denying a motion to compel discovery is

reviewed under the abuse of discretion standard.

         The term ‘discretion’ imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion,
         within the framework of the law, and is not exercised for
         the purpose of giving effect to the will of the judge.
         Discretion must be exercised on the foundation of reason,
         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused when the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or where
         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) [citation

omitted]. .

      Rodriguez argues that the trial court erred by denying his motion to

compel discovery as to Detective Uhrich’s investigative reports regarding

B.W.’s past sexual assault accusations. He argues that had defense counsel

been able to see the requested records, it “could have made for a compelling

argument that the victim, B.W., has a mental health concern that prohibits

her from understanding the nature of sexual conduct.” Appellant’s Brief, at

5. The trial court relied on the Rape Shield Law, stating that “[a]ny prior

allegation of rape against another individual was irrelevant to this matter[.]”

Trial Court Opinion, supra at 5.

      Our inquiry must begin with an analysis of the Pennsylvania Rape

Shield Law, which states, in pertinent part:


                                     -4-
J-S15012-15


     § 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 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).

     We must consider the statute in conjunction with its purpose and the

holding of Commonwealth v. Johnson, 638 A.2d 940 (Pa. 1994).             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”, Id. at

942, citing Commonwealth v. Majorana, 470 A.2d 80 (Pa. 1983), and to

“prevent a trial from shifting its focus from the culpability of the accused

toward the virtue and chastity of the victim ... [and] to exclude irrelevant

and abusive inquiries regarding prior sexual conduct of sexual assault

complainants.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super.

2009).

     In Johnson, our Supreme Court considered the application of the

Rape Shield Law to the admissibility of prior accusations of sexual assault.

There, a mentally handicapped child accused Johnson of sexually assaulting

her. Johnson, 638 A.2d at 941. At trial, Johnson attempted to introduce

evidence that several years earlier, the victim had complained to a friend

that another male (one of the Commonwealth’s witnesses) had sexually



                                    -5-
J-S15012-15



harassed her, and that she was now afraid of him. Johnson intended to offer

this evidence of past accusations both to attack the credibility of the victim,

and to suggest that he had been falsely accused. Id.     Ultimately, the Court

found that although the Rape Shield Law did not bar this sort of testimony,

the traditional rules of evidence still applied.    The Court concluded the

proffered testimony was not relevant and therefore inadmissible.        Id. at

943.

       Here, Rodriguez argues he was wrongly denied the opportunity to

present evidence in support of his theory that B.W. was mentally ill, had

previously accused others of sexual assault, and might not understand the

“nature of sexual conduct.” Appellant’s Brief, at 5. Rodriguez also argues

that the appellant in Johnson attempted to advance a similar argument to

cast doubt on the credibility of the victim. On that point, the Supreme Court

stated: “Appellant argues that the testimony is material as it concerns the

credibility of [the victim]. However, a witness may not be contradicted upon

a collateral matter. A collateral matter is one which has no relationship to

the matter on trial. The proffered testimony does not bear upon a matter in

issue in this case.” Id. at 942-43 (citations omitted). See Commonwealth

v. Fink, 791 A.2d 1235 (Pa. Super. 2002). Thus, the Court found that past

accusations against third parties are collateral; they do not bear on the

ultimate question, which was whether the defendant sexually assaulted the

victim.   We find this reasoning applies here, and bars the      admission of

Detective Uhrich’s report as irrelevant.

                                     -6-
J-S15012-15



      Even if we assume, arguendo, that Johnson does not apply, and the

evidence in question is relevant, Rodriguez has failed to show, in his one

page argument, that the evidence would be otherwise admissible. We have

previously faced this question, concluding:

         While we hold that Pennsylvania's Rape Shield Law may
         not be used to exclude relevant evidence showing witness’
         bias or attacking credibility, we do not hold that all
         material evidence is necessarily admissible.       Although
         logically relevant, evidence tending to show the victim’s
         prejudice or lack of credibility may be excluded if it would
         so inflame the minds of the jurors that its probative value
         is outweighed by unfair prejudice.

Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super. 1985); see also

Pa.R.E. Rule 403 (court must balance probative value of evidence against

possibility of unfair prejudice).

      Here, the trial court granted in camera review of the evidence, but did

not find that the probative value outweighed the potential prejudice. Trial

Court Opinion, supra, at 6-7. In fact, the court found the evidence had no

probative value at all because the fact that Detective Uhrich had prior

contact with the victim and knew that she was mentally challenged “was

immaterial to issues regarding [her] report of the sexual assault alleged to

have been perpetrated by [Rodriguez].” Trial Court Opinion, at 7. The court

also reasoned that the reports contained nothing exculpatory to Rodriguez

and provided no grounds to attack the victim’s credibility. Id.     The court

was well within its discretion to make such a finding.    Further, on appeal,

Rodriguez failed to present argument as to why the court’s application of this

                                    -7-
J-S15012-15



balancing test constituted an abuse of discretion. Rodriguez argues, and we

agree, that under Johnson, the Rape Shield Law does not apply to bar

evidence of past accusations of sexual assault.      He fails to recognize,

however, that even if the Rape Shield Law does not apply to bar the

evidence, the traditional rules of evidence apply.   Johnson, 638 A.2d at

942.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




                                   -8-
