J. S21020/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
KEVIN MITCHELL,                             :
                                            :
                          Appellant         :
                                            :     No. 1098 WDA 2016

              Appeal from the Judgment of Sentence July 19, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014007-2015


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

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 21, 2017

        Appellant, Kevin Mitchell, appeals from the July 19, 2016 Judgment of

Sentence entered in the Court of Common Pleas of Allegheny County

following his convictions after a jury trial for Unlawful Restraint of a Minor,

Terroristic Threats, Indecent Assault, Simple Assault, Corruption of Minors,

and Selling or Furnishing Liquor to Minors.1 After careful review, we affirm.

        The trial court accurately summarized the factual history as follows:

        The evidence presented at trial established that [N.P.
        (“Complainant”)], then 17 years old, is the [Appellant]’s half -
        sister, though with a significant difference in age ([Appellant]

*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S. § 2902(b)(1); 18 Pa.C.S. § 2706(a)(1); 18 Pa.C.S. §
3126(a)(2); 18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. § 6301(a)(1)(i); and 18
Pa.C.S. § 6310.1(a), respectively.
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      was 45 at the time of trial, [Complainant] was 18).
      [Complainant] had met [Appellant] when she was 8 or 9 years
      old, but was out of touch with him thereafter. When she was 16
      years old, she reconnected with [Appellant] through an
      encounter with her father and the two stayed in touch with what
      [Complainant] described as a friendly brother-sister relationship.
      On October 24, 2015, [Appellant] and his housemates picked up
      [Complainant] from her independent living facility and brought
      her to their house. The group gathered in Eric McDonald and
      Pamela St. Esprit's room to listen to music, drink alcohol and
      smoke marijuana. [Appellant] told [Complainant] that he would
      take care of her so she could drink as much as she wanted.
      After [Complainant] had had several drinks, [Complainant] and
      [Appellant] got into an argument about a mutual friend, Denise
      and went back to [Appellant]’s room. [Appellant] locked the
      door, pushed [Complainant] onto his bed and attempted to pull
      off her leggings. When she struggled, he pinned her down and
      forced his penis into her mouth.       He told her that if she
      continued to scream he would choke and kill her. Eventually
      [Complainant] was able to get free and she gathered her
      belongings and left the house. [Complainant returned to her
      independent living facility and made a telephone call to her
      friend Denise to disclose the assault.]       She went to the
      Wilkinsburg Police Department the next day and reported the
      incident.

Trial Court Opinion, dated 12/6/16, at 2-3.

      On March 30, 2016, Appellant filed an Omnibus Pre-Trial Motion

providing, inter alia, notice of intent to introduce evidence of a prior sexual

relationship between Appellant and Complainant pursuant to an exception to

the Rape Shield Law, 18 Pa.C.S. § 3104.        Omnibus Pretrial Motion, filed

12/6/16, at 3. The trial court granted the Motion, permitting Appellant to

testify regarding the prior sexual relationship that he ended in order to show

that Complainant was biased against Appellant and had a motive to lie.




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      A jury trial commenced on April 28, 2016. At trial, Appellant decided

not   to   testify   and   thus,   did   not   pursue   introducing   evidence   that

Complainant was biased. The Commonwealth, however, sought to introduce

the evidence of Appellant’s prior sexual relationship with Complainant and

the trial court permitted such evidence over Appellant’s objection.

      The Commonwealth introduced the evidence of a prior sexual

relationship through Detective Sergeant Wayne McKenith who testified that

Appellant told him that Appellant, a few years ago, provided “jitney” car

rides to Complainant in exchange for sex.           N.T. Trial, 4/28/16-5/3/16, at

196-97.     Appellant further disclosed that after approximately one year,

Appellant learned that Complainant was his half-sister and stopped the

sexual nature of the relationship, which upset Complainant. Id. at 198-200.

      On May 3, 2016, a jury found Appellant guilty of Unlawful Restraint of

a Minor, Terroristic Threats, Indecent Assault, Simple Assault, Corruption of

Minors, and Selling or Furnishing Liquor to Minors.2 On July 19, 2016, the

trial court sentenced Appellant to a term of one to three years’ incarceration.

      Appellant filed timely Post-Sentence Motions, which the trial court

denied. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

2
  The trial court granted Appellant’s Motion for Judgment of Acquittal with
regards to an Attempted Rape charge. 18 Pa.C.S. § 901(a). The jury found
Appellant not guilty of Involuntary Deviate Sexual Intercourse and Incest of
a Minor charges. 18 Pa.C.S. § 3123(a)(1) and 18 Pa.C.S. § 4302(b)(2),
respectively.



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   1. Whether the trial court erred when it permitted the
      Commonwealth to introduce evidence that [Appellant]
      purportedly had a previous sexual encounter with [Complainant].

   2. Whether the trial court abused its discretion when it determined
      that the verdict in this matter was not against the weight of the
      evidence.

Appellant’s Brief at 4.

      In his first issue, Appellant avers that the trial court erred when it

permitted the Commonwealth to introduce the statement that Appellant

made to Sergeant McKenith that Appellant had had a previous sexual

encounter with Complainant.       Appellant argues that because Appellant did

not testify and introduce the evidence to show Complainant’s bias, the

evidence was evidence of prior acts and not admissible under Pa.R.E.

404(b). Appellant’s Brief at 16.

      We review the admissibility of evidence for an abuse of discretion.

Commonwealth v. Hairston, 84 A.3d 657, 664 (Pa. 2014). “An abuse of

discretion may not be found merely because an appellate court might have

reached   a    different   conclusion,   but   requires   a   result   of   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.”        Commonwealth v. Dillon, 925

A.2d 131, 136 (Pa. 2007) (citation and quotation omitted). Moreover, “an

erroneous ruling by a trial court on an evidentiary issue does not require us

to grant relief where the error was harmless.” Commonwealth v. Chmiel,

889 A.2d 501, 521 (Pa. 2005) (citation omitted).


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        As an initial matter, we recognize that evidence of a prior sexual

relationship     can   be   admissible   for   one   purpose   and   then   become

inadmissible if that purpose no longer exists.          See 18 Pa.C.S. § 3104;

Pa.R.E. 404(b). In other words, evidence of a prior sexual relationship can

be admissible if the defendant is asserting that Complainant is biased; if the

defendant, however, decides not to assert such a claim, the evidence may

no longer be admissible.

        In this case, the trial court granted Appellant’s Omnibus Pre-Trial

Motion and permitted the evidence of a prior sexual relationship with

Complainant because Appellant initially planned to use the evidence to

establish Complainant’s bias and motive to lie. Thus, the evidence would be

admissible pursuant to an exception to the Rape Shield Law, 18 Pa.C.S. §

3104.

        This Court has recognized that an alleged victim's prior sexual history

may be introduced at trial if the evidence shows that the alleged victim is

biased and thus has a motive to lie, fabricate, or seek retribution.

Commonwealth v. Guy, 686 A.2d 397, 400 (Pa. Super. 1996). Therefore,

we agree with the trial court’s ruling that the evidence of a prior sexual

relationship between Appellant and Complainant was admissible so long as

Appellant was attempting to prove that Complainant was biased and had a

motive to lie.




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      Once Appellant decided that he was not asserting Complainant’s bias,

however, the evidence was no longer admissible as an exception to the Rape

Shield Law. Rather, the Commonwealth needed to establish an independent

basis for its admissibility. The Commonwealth failed to do this and the trial

court erred when it allowed Sergeant McKenith to testify about Appellant’s

statements.

      The trial court erred in permitting this evidence for two reasons. First,

as stated above, the evidence was inadmissible under the Rape Shield Law,

as it no longer fell under an exception. See 18 Pa.C.S. § 3104; Guy, supra

at 400.

      Second, the evidence was inadmissible evidence of prior acts under

Pa.R.E. 404(b). The Commonwealth cannot introduce evidence of prior acts

for the sole purpose of blackening a defendant’s character or demonstrating

a   defendant’s   propensity    to   commit   crimes.   Commonwealth         v.

Grzegorzewski, 945 A.2d 237, 239 (Pa. Super. 2008); Pa.R.E. 404(b).

Evidence of a prior act is inadmissible unless it is relevant to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake. See Pa.R.E. 404(b)(2); see Chmiel, supra at 534.

      Here, the evidence of a prior sexual relationship was not evidence to

prove motive, opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake.        Accordingly, we find that the trial court erred in

admitting this evidence.



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      Given that the trial court improperly admitted this evidence, the

analysis turns to whether the erroneous admission of evidence was harmless

error. In Pennsylvania, the harmless error doctrine “reflects the reality that

the accused is entitled to a fair trial, not a perfect trial.” Hairston, supra at

671 (citation and quotation omitted). The Pennsylvania Supreme Court has

described the proper analysis as follows:

      Harmless error exists where: (1) the error did not prejudice the
      defendant or the prejudice was de minimis; (2) the erroneously
      admitted evidence was merely cumulative of other untainted
      evidence which was substantially similar to the erroneously
      admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (citation

omitted).

      In the instant case, we find that any prejudicial impact of the error

was de minimis, such that the error was harmless.          As discussed above,

Appellant    himself   considered presenting the     evidence   to   prove   that

Complainant had a motive to lie. The record does not disclose any basis for

concluding that the evidence prejudiced Appellant, rather the evidence had

the tendency to impeach Complainant.        In light of this, we do not believe

that the erroneously admitted evidence contributed to the verdict against

Appellant.   Thus, we find that any prejudice to Appellant was de minimis.

See, e.g., Commonwealth v. Stetler, 431 A.2d 992, 995 (Pa. 1981)

(holding admission made by the appellant’s child that the appellant shot the


                                      -7-
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victim after the victim “busted down our door” was harmless error where the

record failed to disclose any basis for concluding that the out-of-court

statement prejudiced appellant and the statement supported appellant’s

claim of self-defense).   Accordingly, the improper admission of Appellant’s

prior sexual relationship with Complainant was harmless error.          See

Robinson, supra at 350.

      In his second issue on appeal, Appellant claims that the trial court

abused its discretion when it determined that the verdict in this matter was

not against the weight of the evidence. Appellant’s Brief at 19.

      When considering challenges to the weight of the evidence, we apply

the following precepts:

         The weight of the evidence is exclusively for the finder of
         fact, who is free to believe all, none or some of the
         evidence and to determine the credibility of the witnesses.

         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.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons
         advanced by the trial judge when reviewing a trial court’s
         determination that the verdict is against the weight of the
         evidence. One of the least assailable reasons for granting
         or denying a new trial is the lower court’s conviction that
         the verdict was or was not against the weight of the
         evidence and that a new trial should be granted in the
         interest of justice.




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Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations

omitted).

      Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa. Super. 2000). Further, “[i]n 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.”

Talbert, supra at 546 (quotation marks and citation omitted).      It is well-

settled that we cannot substitute our judgment for that of the trier of fact.

Id.

      Appellant essentially asks us to reassess the credibility of Complainant

and reweigh the testimony and evidence presented at trial. Appellant’s Brief

at 19-20.      We cannot and will not do so.       The jury found credible

Complainant’s testimony that Appellant forced her onto the bed, pinned her

down using his arms, legs, and body weight, threatened to choke and kill her

if she did not stop screaming, and put his penis in her mouth. The trial court

opined, “[g]iven the evidence presented at trial and discussed above, there

is no question that the verdict was appropriate and not ‘shocking’ to the

conscience.”   Trial Court Opinion, dated 12/6/16, at 8.   We agree.    Thus,

because the verdict was not so contrary to the evidence as to shock the




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court’s conscience, we conclude that the trial court properly denied

Appellant’s weight of the evidence claim.

     Judgement of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2017




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