J-A07022-19

                                2019 PA Super 323


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOSHUA L. LEAP                           :
                                          :
                    Appellant             :   No. 1674 EDA 2018

            Appeal from the Judgment of Sentence April 10, 2018
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0002494-2015


BEFORE:    OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY DUBOW, J.:                               FILED OCTOBER 25, 2019

      Appellant, Joshua L. Leap, appeals from the April 10, 2018 Judgment of

Sentence entered in the Monroe County Court of Common Pleas after a jury

convicted him of Rape and related charges. After careful review, we affirm.

BACKGROUND

      The relevant factual and procedural history, as gleaned from the

certified record, is as follows. In July 2015, then-14-year-old B.L. (“Victim”)

attended an overnight family reunion with her then-15-year-old boyfriend,

M.B.K. (“Boyfriend”). Appellant is Boyfriend’s cousin and was 28 years old at

the time of the family reunion. At the reunion, Victim and Boyfriend consumed

alcohol, smoked marijuana, and then went to sleep in a tent around midnight.

      Around 4:00 AM, Victim awoke to find Appellant on top of her. Appellant

pulled Victim’s pants down, pinned her to the ground, put his hand over her

mouth, and raped her. After Appellant raped Victim, he spoke to her about


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07022-19



the rape.1    Victim disclosed the rape to another cousin, who, in turn, told

Boyfriend. Later that day, Appellant told Victim and Boyfriend that he would

give them marijuana, or whatever they wanted, if they did not say anything

to get him in trouble.

       Upon returning home, Victim told her mother about the rape. Victim’s

mother called police and took Victim to the hospital, where Victim received a

sexual assault examination. The examination and DNA testing revealed that

Appellant’s semen was on Victim’s clothes and inside Victim’s vagina. Victim

gave consistent statements to hospital personnel and the police.

       Police arrested Appellant and the Commonwealth charged Appellant with

Rape, Statutory Sexual Assault, Sexual Assault, Aggravated Indecent Assault,

and Indecent Assault.2 After a preliminary hearing on November 20, 2016,

the court held the case over for trial.

       At trial, Victim testified to the above facts.   On cross-examination,

Appellant tried to impeach Victim with a post that appeared on Victim’s

Facebook page. The post was a picture of a typed sentence that was authored

by an unknown individual, reposted by someone uninvolved in this matter

over a year before Victim accused Appellant of rape, and reposted on Victim’s

Facebook page on or around the date of the scheduled preliminary hearing.

____________________________________________


1Victim testified that Appellant told her that her “pussy was so tight and he’s
never come that fast.” N.T. Trial, 1/9/18, at 45.

2 18 Pa.C.S. §§ 3121(a)(1), 3122.1(b), 3124.1, 3125(a)(2), and 3126(a)(2),
respectively.

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The post stated, “If we have sex & your behavior changes afterwards I’m

gonna say you raped me & technically you did bc you ain’t the nigga I thought

you was.” Defendant’s Exhibit 11, Marked for Identification Purposes. The

trial court sustained the Commonwealth’s objection to the use of the Facebook

repost. N.T. Trial, 1/9/18, at 82.

       The Commonwealth next presented testimony from Carol Haupt, who

was qualified to testify as an expert in the dynamics of sexual violence, victim

responses to sexual violence, and the impact of sexual violence on victims

during and after being assaulted pursuant to 42 Pa.C.S. § 5920. When the

Commonwealth asked Ms. Haupt a hypothetical question about a 14-year-old

victim, Ms. Haupt gave her opinion about the hypothetical child’s credibility.

Id. at 141.3

       Appellant objected on the basis that Section 5920 specifically disallows

any testimony giving an opinion on credibility, and made a Motion for a
____________________________________________


3 Specifically, the Commonwealth asked Ms. Haupt if she knew statistics
regarding false reporting of sexual assaults, and Ms. Haupt responded with an
analogy. Ms. Haupt analogized making reports of sexual abuse to an iceberg,
with the number of actual sexual assaults being under water and the number
of reported sexual assaults being towards the tip of the iceberg. N.T. Trial,
1/9/18, at 138-39. The Commonwealth later inquired, “Hypothetically, if a
fourteen year old had consistently given statements with regards to a rape
that occurred; you know, they gave a statement to a trooper, to a SA[F]E
nurse and then at preliminary hearing and then two years later at a trial and
they were consistent that, hypothetically, then that person would be part of
that tip [of the iceberg].” Id. Ms. Haupt responded, “Well it seems to make
them credible.” Id.




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Mistrial.   The trial court denied Appellant’s Motion and, instead, gave a

curative instruction telling the jury members that they were the sole judges

of the credibility of all witnesses and they should disregard any testimony that

they construe to be an opinion in that regard.4 Id. at 142-43.

       The Commonwealth called several additional witnesses, including a

Police Communications Officer, two police Troopers, a nurse practitioner, a

serology supervisor, and a forensic DNA scientist.

       Appellant testified on his own behalf and stated, inter alia, that, on the

day of the reunion he thought Victim was 18 years old. N.T. Trial, 1/11/18,

at 92. Appellant acknowledged that he went to sleep in the same tent as


____________________________________________


4 Specifically, the trial court gave the following curative instruction to the
jury:

       So members of the jury, when I was giving you my preliminary
       instructions I told you that I was the judge of the law and I’d be
       giving you the law. I also told you that you were the judges of
       the facts. As the sole judges of the facts individually and
       collectively you are also the sole judges of the credibility of all
       witnesses and that’s true whether the witness is labeled as an
       expert, as a lay witness, or any other type of witness. And so you
       and you alone are the judges of the credibility of anyone who
       testifies here in court and there is no other witness, expert or
       otherwise, who may take that function away from you. And so
       you just heard what may be construed as an opinion in that regard
       and you must disregard that in your deliberations and draw your
       own assessments based on the evidence, the law that I’m going
       to give you, and as I said before you may listen to the arguments
       of the attorneys in the end and you may give them some weight
       if those arguments are supported by the facts and appeal to your
       sense of reason and judgment.

Id. at 143.

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Victim and Boyfriend and stated that he woke up early in the morning to move

into a nearby house to sleep because he was cold. Id. at 84-119. Appellant

testified several times, on both direct and cross-examination, that he did not

remember anything between the time he fell asleep in the tent and the time

he woke up. Id.

      Appellant also called various fact and character witnesses, including his

ex-fiancé Erin Labar, to testify on his behalf. Appellant once again tried to

introduce the above-referenced Facebook post, by asking Ms. Labar if she

observed Victim’s Facebook posts.       Id. at 51.   The trial court once again

sustained the Commonwealth’s objection to the use of the Facebook repost

and ruled it inadmissible. Id. at 56.

      On January 11, 2018, a jury convicted Appellant of all charges. On April

10, 2018, the trial court sentenced Appellant to an aggregate term of 90 to

244 months’ incarceration and ordered, inter alia, that Appellant was not to

have unsupervised contact with anyone under the age of 18. Appellant filed

a timely Post-Sentence Motion, which the trial court granted in part to modify

the sentencing condition to allow Appellant to have contact with his own

children. The trial court denied the remainder of the Motion.

      Appellant timely appealed. Appellant and the trial court both complied

with Pa.R.A.P. 1925.

ISSUES

      Appellant raises the following issues on appeal.




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J-A07022-19


   1. Did the trial court abuse its discretion by sustaining the
      Commonwealth’s objection to the introduction of [Victim]’s
      Facebook post which suggested that [Victim] had consensual sex
      with [Appellant] and indicated a willingness to lie about being
      raped by him?

   2. Should Defendant’s Motion for a Mistrial have been granted after
      the jury heard inadmissible and incurably prejudicial testimony
      from the Commonwealth’s Expert Witness who testified upon
      prompting by the Commonwealth as to credibility of a rape
      victim’s testimony.

Appellant’s Brief at 7.

LEGAL ANALYSIS

Issue 1

      In his first issue, Appellant avers that the trial court abused its discretion

when it precluded Appellant from introducing a post from Victim’s Facebook

page into evidence. Appellant’s Br. at 15. Appellant argues that the post was

evidence of Victim’s bias against Appellant and her intention to testify falsely

against Appellant and that he should have been able to cross-examine Victim

regarding the post. Id. at 17-18. Appellant contends that the preclusion left

him without a crucial piece of evidence to support his theory of the case that

Victim “mistakenly had consensual sex” with Appellant and when Boyfriend

found out, she claimed that Appellant had raped her. Id. at 15-18.

      Our standard of review is well settled: the admissibility of evidence is

within the sound discretion of the trial court and we will not reverse absent an

abuse of discretion. Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa.

2015). Likewise, the scope and limits of cross-examination are within the

discretion of the trial judge and we review the trial judge’s exercise of

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judgment for a clear abuse of discretion. Commonwealth v. Birch, 616 A.2d

977, 978 (Pa. 1992).     “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.” Poplawski,

130 A.3d at 716 (citations omitted).

      Relevance is the threshold for admissibility of evidence; evidence that

is not relevant is not admissible. Commonwealth v. Cook, 952 A.2d 594,

612 (Pa. 2008); Pa.R.E. 402. “Evidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a

material fact.”   Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.

2002) (citation omitted). Our Rules of Evidence provide the test for relevance:

evidence is relevant if “(a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. Further, “[t]he court

may exclude relevant evidence if its probative value is outweighed by a danger

of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403.

      Under Rule 607, “[t]he credibility of a witness may be impeached by any

evidence relevant to that issue[.]” Pa.R.E. 607(b) (emphasis added). The

Comment to Rule 607 further emphasizes that any evidence offered to

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J-A07022-19



impeach the credibility of a witness must be relevant under the Rule 401

relevancy test. Pa.R.E. 607 cmt. In addition, Rule 608 provides that “[a]

witness's credibility may be attacked or supported by testimony about the

witness's reputation for having a character for truthfulness or untruthfulness.”

Pa.R.E. 608(a). However, “the character of a witness for truthfulness may not

be attacked or supported by cross-examination or extrinsic evidence

concerning specific instances of a witness’[s] conduct[.]” Pa.R.E. 608(b)(1).

See Commonwealth v. Guilford, 861 A.2d 365, 369 (Pa. Super. 2004)

(noting defendant's right to confrontation includes the right to cross-examine

witnesses about possible motives to testify, however, a party may not

impeach a witness on collateral matters, or matters that have no relationship

to the case at trial).

      Instantly, the trial court found the Facebook post to be irrelevant and

highly prejudicial, and, therefore, ruled the post to be inadmissible for

impeachment purposes pursuant to Rule 607 and Rule 608. The trial court

opined:

      [B]ecause the words were not [V]ictim’s, the language of the post
      did not relate to [V]ictim’s reputation for truthfulness or
      untruthfulness, the post was generated 13 months before the
      sexual assault on [V]ictim, the post does not relate to the events
      that gave rise to or the persons involved in this case, the original
      author is unknown, neither [Appellant] nor [V]ictim was
      mentioned, identified, or referenced in the post, and counsel for
      [Appellant] did not provide context for the post, the post is
      irrelevant. For the same reasons, to the extent relevance may be
      found, the prejudicial impact of the post, to both the
      Commonwealth and [V]ictim, outweighed its probative value.



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J-A07022-19



Trial Ct. Op., filed 8/31/18, at 11.

       We find no error in the trial court’s conclusion that the Facebook post—

a picture of a typed sentence, authored by an unknown individual, reposted

by someone uninvolved in this matter over a year before Victim accused

Appellant of rape, and reposted on Victim’s Facebook page on or around the

date of the preliminary hearing—is not relevant, and therefore, not admissible.

Once the trial court found the Facebook post to be irrelevant, the court

properly exercised its discretion in ruling that Appellant could not impeach

Victim with that evidence. See Cook, 952 A.2d at 612; Guilford, 861 A.2d

at 369. Accordingly, we find no abuse of discretion.5

Issue 2

       In his second issue, Appellant avers that the trial court abused its

discretion when it denied his Motion for a Mistrial after expert witness Ms.

Haupt gave her opinion about the credibility of a hypothetical rape victim.

Appellant’s Br. at 27.          Appellant argues that the expert’s testimony

impermissibly bolstered Victim’s credibility, and the instruction given by the

trial judge was not sufficient to cure the inadmissible and prejudicial

____________________________________________


5 Appellant’s one-paragraph arguments that the trial court should have
admitted the Facebook post as a then-existing mental state pursuant to
Pa.R.E. 803(a), or a prior inconsistent statement, are underdeveloped. See
Appellant’s 20-22. Accordingly, we find them waived. See Commonwealth
v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018) (holding that this Court
will not develop an argument for an appellant, nor scour the record to support
an argument, and instead will find the underdeveloped argument to be
waived).


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testimony. Id. at 27. Therefore, Appellant contends, he was deprived of the

right to a fair and impartial trial. Id. 31.

      We review a trial court’s denial of a motion for a mistrial for an abuse of

discretion.   Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).             A

mistrial is an extreme remedy that is appropriate “only where the incident

upon which the motion is based is of such a nature that its unavoidable effect

is to deprive the defendant of a fair trial by preventing the jury from weighing

and rendering a true verdict.” Id. (citations omitted). “It is within the trial

court’s discretion to determine whether a defendant was prejudiced by the

incident that is the basis of a motion for a mistrial.”    Commonwealth v.

Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015) (en banc) (citations omitted).

When a trial court gives adequate cautionary instructions to the jury, it is not

necessary for the court to declare a mistrial. Bryant, 67 A.3d at 728. “The

law presumes that the jury will follow the instructions of the court.”

Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001).

      Instantly, there is no dispute that the testimony in question was

impermissible under Section 5920, which, inter alia, allows an expert

testifying under this Section in certain criminal proceedings to give opinions

regarding specific types of victim responses and victim behaviors, but

prohibits the expert’s opinion regarding the credibility of any witness,

including the victim. See 42 Pa.C.S. § 5920(b); Commonwealth v. Seese,

517 A.2d 920, 922 (Pa. 1986) (holding it was error to admit expert testimony

as to the credibility of children who are of an age similar to that of the

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prosecution's chief witness, the crime victim). The question before this Court

is, thus, whether the trial court’s curative instruction was sufficient to

overcome the potential prejudice to Appellant. We find that it was.

      As the trial court emphasized, the curative instruction did not stand

alone; it was “bookended by preliminary instructions, which were referenced

in the curative instruction itself, and instructions given as part of the final

charge which also operated to remove or alleviate any potential taint.” Trial

Ct. Op. at 20.    The trial court instructed the jurors on multiple occasions

throughout the trial that they were the sole judges of the facts and sole judges

of the credibility of all witnesses and the weight of the evidence. Id. We

presume that the jurors followed the trial court’s instructions and decline to

find that Ms. Haupt’s one-sentence opinion regarding the credibility of a

hypothetical victim deprived Appellant of a fair trial. See Brown, 786 A.2d

at 971.

      Appellant cites Seese, supra, and Commonwealth v. Maconeghy,

171 A.3d 707 (Pa. 2017), to support his argument that he was deprived of the

right to a fair and impartial trial because of Ms. Haupt’s opinion about the

credibility of a hypothetical rape victim. Appellant’s Br. at 28-30. However,

we can easily distinguish these cases: unlike in this case, the trial court did

not give a curative instruction to the jury in either of those cases. Accordingly,

Appellant’s argument is unpersuasive.

      Upon review of the record, including the brief nature of the reference,

the court's prompt instruction, and our standard of review, we find no error in

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the denial of a mistrial. The curative instruction set out above was sufficient

to overcome any potential for prejudice.       The trial court did not abuse its

discretion and Appellant is not entitled to relief on this issue.

CONCLUSION

      In sum, the trial court did not abuse its discretion when it found the

Facebook post to be irrelevant and ruled that Appellant could not use the post

to impeach Victim. Moreover, the trial court did not abuse its discretion when

it denied Appellant’s Motion for a Mistrial.

     Judgment of Sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/19




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