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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRIS DUNBAR,

                            Appellant                  No. 1834 EDA 2014


             Appeal from the Judgment of Sentence May 29, 2014
               in the Court of Common Pleas of Lehigh County
              Criminal Division at No.: CP-39-CR-0002187-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED SEPTEMBER 08, 2015

        Appellant, Chris Dunbar, appeals from the judgment of sentence

imposed following his jury conviction of one count each of involuntary

deviate sexual intercourse, 18 Pa.C.S.A. § 3123(a)(1); terroristic threats, 18

Pa.C.S.A. § 2706(a)(1); simple assault, 18 Pa.C.S.A. § 2701(a)(1); and

resisting arrest, 18 Pa.C.S.A. § 5104. Appellant challenges the denial of his

request to introduce certain evidence despite the Rape Shield Law. 1          We

affirm.

        We derive the following recitation of facts from the trial court’s opinion

and our independent review of the record.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3104.
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       Appellant and the victim, D.S. (Victim), lived together in a romantic

relationship from 2010 until January 2013, when Appellant moved out of

their home. (See N.T. Trial, 2/05/14, 47-48). Victim continued to live there

with her four children. (See id.).2 Victim testified that after they separated,

they agreed to keep things as normal as possible and “co-parent” the four

children. (Id. at 67).

       On the weekend at issue, Appellant was to bring the children (who had

been staying with him) to spend Mother’s Day with Victim, on Sunday, May

12, 2013 at 10:00 A.M.          (See id. at 66-67).   However, Appellant arrived

with the children at 2:00 A.M. He found Victim on her porch with a male

friend. (See id. at 67-68).

       Appellant became enraged, yelled at Victim, and accused the friend of

being the reason he and Victim did not reconcile.         (See id. at 68).   The

Victim’s friend left.    (See id. at 69). The Victim fled to her bedroom and

locked the door as Appellant brought the children inside. (See id. at 70).

       When Appellant knocked on the bedroom door and requested that he

and Victim talk, she let him in. (See id. at 71-72). Once inside, Appellant

shook Victim and ripped her shirt off.           (See id. at 73-74). He forcibly

removed all of her clothes, even though she repeatedly told him “Please

stop.” (Id. at 74-75).
____________________________________________


2
  Appellant is the father of the youngest child; he testified that he acted as a
father for the others as well. (See N.T. Trial, 2/06/14, 226).



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       Appellant threw Victim across the room at a dresser. (See id. at 76).

She screamed for her eldest daughter to call 911.        (See id.).    Appellant

continued hitting Victim. (See id. at 77). She continued to call out to her

daughter until Appellant hit her face and held his hand over her mouth and

nose, cutting off her air so she could not breathe. (See id. at 78).

       Appellant went into the closet, retrieved a “sex toy,” 3 and said to

Victim, “I’m gonna teach you.” (Id. at 81). Appellant hit Victim in the face

using the harder part of the sex toy, and began to insert it into her vagina.

(See id. at 82). Victim testified at trial that the sex toy hurt as it went in.

(See id. at 83).       Appellant gripped Victim’s neck, choking her, and said,

“Right now I am deciding whether or not to kill you . . . .”        (Id. at 85).

Appellant then said “I’m gonna make you suffer first.” (Id.) Appellant put

his full body weight against Victim, punched her in the stomach, and

continued to insert the sex toy into her vagina. (See id. at 86).

       The violence continued until almost seven in the morning, when

Appellant fell asleep and Victim was able to text a friend to call 911. (See

id. at 109, 112).      When the police arrived, they found Victim bloody and

bruised.    Appellant was still in the home.     (Id. at 119-20, 124-25).   The

police told Victim to go to the hospital. Her friend drove her there. (See id.

at 123).
____________________________________________


3
 The sex toy was a battery operated vibrator. (See N.T. Trial, 2/05/14, 81-
82).



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        Allentown Police Officer Leif Henry arrested Appellant. (See N.T. Trial,

2/06/14, at 139).        Although he was handcuffed from behind, Appellant

managed to slip the cuffs in front of him, presenting a greater danger to the

police. (See id. at 140). Appellant told the police, “You’re going to have to

shoot me. You’re going to have to kill me.” (Id. at 141).4 Appellant then

ran from the police, but the police were able to re-capture him.               (Id.    at

143).

        At the hospital, Dr. Joseph DeFulvio, a gynecologist, examined Victim.

(See N.T. Trial, 2/05/14, at 136, 138-39).             Later, Dr. DeFulvio, accepted

without objection at trial as an expert, opined that the injuries to Victim’s

vagina were greater than what he would expect to see from consensual sex

or masturbation. (See id. at 138, 143). Dr. DeFulvio testified that, in his

expert opinion, the swelling of the vagina was “more consistent with external

use with force versus consensual intercourse.”              (Id. at 150).    On cross-

examination,     Appellant’s     counsel       questioned   Dr.   DeFulvio   about    the

possibility that consensual sex could produce the same results. (See id. at

150-51).


____________________________________________



4
 Appellant later testified that it was his violent alter ego, “Christopher,” that
had said this. (See N.T. Trial, 2/06/14, at 290). Christopher is one of
Appellant’s three alter egos that he claims to host in his body. (See N.T.
Trial, 2/05/14, at 54-55).




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       The court barred Appellant’s counsel from questioning Victim about

whether she had engaged in consensual sex earlier on the evening of the

incident.    (See id. at 130).      The court cautioned counsel that Victim was

protected from this line of questioning. (See id.).

       On February 7, 2014, the jury convicted Appellant of involuntary

deviate sexual intercourse, terroristic threats, simple assault, and resisting

arrest.5 On May 29, 2014, the court sentenced Appellant to an aggregate

term of not less than thirteen-and-a-half years’ nor more than twenty-nine

years’ incarceration, plus costs and fees6. Appellant timely appealed on June

24, 2014.7

       Appellant raises one question for our review:

              Did the [trial] court err and abuse its discretion in applying
       the Rape Shield statute (18 Pa.C.S.A. § 3104) to preclude
       otherwise admissible evidence of the alleged victim’s prior sexual
       activity occurring only hours before the alleged incident when
       such sexual activity would establish a plausible alternate cause
       of the victim’s physical condition and serve to impeach her
       credibility?
____________________________________________


5
  The jury acquitted Appellant of attempted criminal homicide, 18 Pa.C.S.A.
§ 901(a); and aggravated assault, 18 Pa.C.S.A § 2702. (See N.T. Trial
2/07/14 at 106).
6
  Appellant was also required to register as a Tier 3 lifetime sex offender.
(See N.T. Sentencing, 5/29/14, at 22). However, he was not assessed to
meet the criteria of a sexually violent predator. (See id. at 3).
7
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on July 17, 2014.          See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on July 23, 2014.
See Pa.R.A.P. 1925(a).



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(Appellant’s Brief, at 4) (most capitalization omitted).

      Appellant asserts that the trial court erred and abused its discretion by

not admitting evidence of the Victim’s prior sexual activity. Specifically, he

claims that the trial court erred and abused its discretion by applying the

Rape Shield Law to exclude evidence of the Victim’s sexual intercourse with

her friend a few hours prior to his assault of her.        (See id. at 7).    We

disagree.

      Our standard of review for a claim of admissibility of evidence under

the Rape Shield Law is well settled:

            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 or
      the record, discretion is abused.

Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009), appeal

denied, 8 A.3d 341 (Pa. 2010) (citation and quotation marks omitted).

      Preliminarily, we must address Appellant’s failure to raise a proper

claim of exception to the Rape Shield Law.

      The Pennsylvania Crimes Code provides, in pertinent part, as follows:

                  (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

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            with the defendant where consent of the alleged victim is
            at issue and such evidence is otherwise admissible
            pursuant to the rules of evidence.

                   (b) Evidentiary proceedings.—A defendant who
            proposes to offer evidence of the alleged victim’s past
            sexual conduct pursuant to subsection (a) shall file a
            written motion and offer of proof at the time of trial.
            If, at the time of trial, the court determines that the
            motion and offer of proof are sufficient on their faces, the
            court shall order an in camera hearing and shall make
            findings on the record as to the relevance and admissibility
            of the proposed evidence pursuant to the standards set
            forth in subsection (a).

18 Pa.C.S.A. § 3104 (emphasis added).

      Accordingly, § 3104(b) requires a defendant who wishes to introduce

evidence of an alleged victim’s past sexual conduct must file a written

motion before trial. This motion must offer proof that an in camera hearing

is necessary to record relevant and admissible findings.       See id.     “[A]

defendant who desires to introduce evidence of the victim’s prior sexual

conduct must file a written motion and make a specific offer of proof

prior to trial.” Burns, supra, at 690 (emphasis added) (citations omitted).

“The requirement of a specific [written] proffer of evidence was designed to

prevent a ‘fishing expedition’ into the areas protected by the Rape Shield

Law.” Id. at 691 (citations omitted).

      Here, as aptly noted by the Commonwealth, Appellant failed to file a

written motion to pierce the rape shield exclusion.    (See Commonwealth’s

Brief, at 10).   Specifically, Appellant failed to request an exception to the

Rape Shield Law or offer pertinent proof of the Victim’s past sexual conduct

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by written motion when he did not include it in his omnibus pre-trial motion.

(See generally, Omnibus Pre-Trial Motion, 8/02/13, at unnumbered pages

1-6).

        Instead, Appellant’s counsel only informally requested to pierce the

rape shield during a recess at trial. (See N.T. Trial, 2/05/14, at 126-33).8

Therefore, because Appellant failed to file a timely written motion, as

required by law, to pierce the rape shield, the issue on appeal is waived.

        We have repeatedly stated that a defendant who desires to
        introduce evidence of the victim’s prior sexual conduct must file
        a written motion and make a specific offer of proof prior to trial.
        See Commonwealth v. Beltz, 829 A.2d 680, 684 (Pa. Super.
        2003) (failure to make written motion bars review of decision at
        trial to exclude); Commonwealth v. Kunkle, 424 Pa.Super.
        499, 623 A.2d 336, 339 (1993), appeal denied, 536 Pa. 621,
        637 A.2d 281 (1993) (defendant’s oral motion during trial,
        rather than a written motion and specific offer of proof, was
        wholly inadequate and there was no abuse of discretion by the
        trial court when it barred evidence pertaining to the prior sexual
        assault of the victim). We will presume that the legislature
        intended “shall” to be mandatory in the statute at hand. See
        generally Commonwealth v. Menezes, 871 A.2d 204, 209
        (Pa. Super. 2005), appeal denied, 586 Pa. 724, 890 A.2d 1057
        (2005). Again, the rape shield laws, as enacted by the various
        states, “were intended to end the abuses fostered by the
        common law rule by limiting the harassing and embarrassing
        inquiries of defense counsel into irrelevant prior sexual conduct
        of sexual assault complainants.” Commonwealth v. Nieves,
        399 Pa. Super. 277, 582 A.2d 341, 346 (1990), appeal denied,
        529 Pa. 633, 600 A.2d 952 (1991). The requirement of a
        specific proffer of evidence was designed to prevent a “fishing
        expedition” into the areas protected by the Rape Shield Law.
        Commonwealth v. Wall, 413 Pa. Super. 599, 606 A.2d 449,
____________________________________________


8
  After argument from counsel, the trial court denied that request.           (See
N.T. Trial, 2/05/14, at 132-33).



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      457 (1992), appeal denied, 532 Pa. 645, 614 A.2d 1142 (1992).
      Accord Commonwealth v. Fernsler, 715 A.2d 435, 439 (Pa.
      Super. 1998).

Burns, supra at 690-91.

      Moreover, Appellant’s claim would not merit relief. Proffered evidence

relating to past sexual conduct of an alleged victim “can not (sic) be vague,

conjectural, or speculative.”    Commonwealth v. Fink, 791 A.2d 1235,

1243 (Pa. Super. 2002) (citation omitted) (trial court did not abuse its

discretion in precluding defendant from piercing rape shield where proffer

was nothing more than “a vague suggestion that sexual activity was taking

place between the victim and [an] unidentified male.”)

      Additionally, “evidence that merely provides an alternative source for

the evidence of sexual abuse without precluding the defendant’s guilt is

inadmissible.”    Burns, supra, at 693 (citing Commonwealth v. Nieves,

582 A.2d 341, 347 (Pa. Super. 1990)), appeal denied, 600 A.2d 952 (Pa.

1991).

      “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.”     Burns, supra, at 689 (citation and footnote omitted).    This

Court explained that the intent of the Rape Shield Law is to exclude

irrelevant and abusive inquiries regarding prior sexual conduct of sexual

assault victims. See id.

      In Pennsylvania, we have come to resolve this question through
      a relatively elaborate procedure which is designed to ensure that

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      no evidence of the victim’s sexual history is introduced unless
      and until it can be established that to exclude such evidence
      would lay victim to the very raison d'etre of the trial itself: the
      pursuit of truth.

Id. at 691 (citations omitted).

      Similarly,

      [T]he Rape Shield law will bow to a defendant’s right to confront
      and cross-examine when a specific proffer demonstrates that the
      proposed inquiry is intended to elicit relevant evidence, which is
      more probative than prejudicial, and which is not cumulative of
      other evidence available without encroaching upon Rape Shield
      law protections.

Nieves, supra, at 347.

      Here, Appellant claims that the trial court abused its discretion and

erred in applying the Rape Shield Law when it denied admission of the

evidence of prior sexual intercourse.    (See Appellant’s Brief, at 13).    He

maintains that evidence of a previous sexual encounter on the night in

question could provide an alternate theory for Victim’s vaginal injuries. (See

id. at 22; see also N.T. Trial, 2/05/14, at 132).

      However, in this case, at most, evidence of the Victim’s prior sexual

relations would have merely provided an alternative source for the evidence

of sexual abuse, without precluding Appellant’s guilt.        Therefore, it is

inadmissible for that reason as well.    The trial court properly applied the

Rape Shield Law by denying admission of evidence of the Victim’s previous

sexual conduct. See Burns, supra at 693.




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      Moreover, the trial court cited testimony from Dr. DeFulvio that the

vaginal injuries were not consistent with the type that would normally result

from consensual intercourse.     (See Trial Court Opinion, 7/23/14, at 4).

      Therefore, the proffered evidence of previous sexual relations was not

probative, without more, of an alternative explanation for the Victim’s

injuries.   The vague and speculative proposed line of questioning would

merely have permitted defense counsel to embark upon “fishing expedition

style intrusions on Rape Shield Law protections.”    Burns, supra, at 691.

“Where the proffer is but vague and conjectural, evidence of the victim's

past sexual conduct will be excluded and no further inquiry need be

entertained.” Id. (citations omitted).

      Accordingly, we conclude that the trial court properly denied the

admission of the evidence under the Rape Shield Law. Appellant’s claim is

waived and without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




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