J-E01005-14

                      2014 PA Super 221
COMMONWEALTH OF PENNSYLVANIA,         IN THE SUPERIOR COURT OF
                                            PENNSYLVANIA
                  Appellee

                    v.

ROBERT MICHAEL PUGH,

                         Appellant                   No. 343 EDA 2012


    Appeal from the Judgment of Sentence entered December 19, 2011
              In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0000303-2010.

BEFORE: GANTMAN, P.J., FORD ELLIOT, P.J.E., BENDER, P.J.E., PANELLA,
        DONOHUE, ALLEN, LAZARUS, MUNDY AND OLSON, JJ.

CONCURRING OPINION BY OLSON, J.:                 FILED OCTOBER 07, 2014




with respect

Therefore, I write separately.

      In his second issue on appeal, Appellant contends that the trial court
                                                               1
                                                                   Specifically,

Appellant arg



that she was a virgin when that representation could not have been true

                                                                   The learned


1
 At times, Alverio is identified as Rocky Alverio; however, his name is Raziel
Alverio. See N.T., 9/15/11, at 3.
J-E01005-14




                                                      See Majority Opinion,

ante at 8-9.     However, I do not believe that the Rape Shield Law is

applicable in this case.

      The Rape Shield Law provides that:




      sexual conduct shall not be admissible in prosecutions under this

      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.



word conduct does not include prior sexual assaults and that evidence of

prior sexual assaults is admissible as long as such evidence is relevant and

material u                                        Commonwealth v. Fink,

791 A.2d 1235, 1241 (Pa. Super. 2002) (emphasis added; internal quotation

marks and footnote omitted), citing Commonwealth v. Johnson, 638 A.2d

940, 942 (Pa. 1994); see Commonwealth v. Holder, 815 A.2d 1115,

1118-1119 (Pa. Super. 2003), appeal denied, 827 A.2d 430 (Pa. 2003)

(citation omitted); Commonwealth v. L.N., 787 A.2d 1064, 1069 (Pa.

Super. 2001), appeal denied, 800 A.2d 931 (Pa. 2002) (citation omitted). In

this case, any sexual contact between Alverio and S.P. was a sexual assault




                                    -2-
J-E01005-14

as S.P. had yet to reach the age of consent.2     See 18 Pa.C.S.A. § 3122.1

(age of consent in Pennsylvania is 16); Commonwealth v. Slocum, 86

A.3d 272, 283 n.3 (Pa. Super. 2014) (same).         Accordingly, evidence of



protected by the Rape Shield Law, and, therefore, the Rape Shield Law does

not apply to this case.

                                                            Shield Law was

misplaced, its ultimate conclusion to bar further examination of Alverio




medical center that she was a virgin was medically false. See

Brief at 42. The trial court permitted Alverio to be examined regarding the

fact that he had sexual intercourse with S.P.     See N.T., 9/15/11, at 17.

Thus, the jury was made aware of the fact that Appellant was attempting to

elicit.   Any further inquiry would have had no probative value and would

have been highly prejudicial.    Thus, the evidence was properly excluded.

See
                                                                 3
v                                                                    see also


2
  Alverio pled guilty to statutory sexual assault for the sexual contact
between himself and S.P. See Commonwealth v. Alverio, CP-45-CR-
0000995-2010.
3
    The quoted text is that of the former Rule 403, which was in place at the
                                       March 18, 2013, former Rule 403 was
(Footnote Continued Next Page)


                                     -3-
J-E01005-14

Commonwealth v. Turner, 73 A.3d 1283, 1286 n.5 (Pa. Super. 2013),

appeal denied



      In his third issue on appeal, Appellant argues that the trial court erred




recorded.      The learned majority concludes that the trial court              had

                                                                              ante

at 10.      My review of the jury charge reveals that, although the jury

                                                  , the credibility of witnesses and



interrogation was not addressed. See N.T., 9/19/11, at 96-126. However, I

ultimately agree that the trial court did not abuse its discretion in declining



interrogation.

      Appellant implicitly argues that the failure to record his custodial

interrogation violated his right to due process.          In Commonwealth v.

Harrell, a panel of this Court held that the due process clause of the

Pennsylvania Constitution does not require that custodial interrogations be

recorded. 65 A.3d 420, 429 (Pa. Super. 2013), citing Commonwealth v.

                       _______________________
(Footnote Continued)
rescinded and replaced with current Rule 403. See 43 Pa.B. 620 (Feb. 2,
2013).



                                            -4-
J-E01005-14

Craft, 669 A.2d 394 (Pa. Super. 1995) (Del Sole, J. opinion announcing the

judgment of the court).

the Pennsylvania Constitution guarantee due process protections.             Our



Commonwealth v. Nase, 2014 WL 4415061, *2 (Pa. Super. Sept. 9,

2014). (footnote and citation omitted).           Thus, the question is whether

recording is required under the Fourteenth Amendment of the United States

Constitution.

        There is no authority for the proposition that recording is required by

the Fourteenth Amendment. The Alaska Supreme Court is the only court to

have held that failure to record a custodial interrogation violates a



Const

Stephan v. Alaska, 711 P.2d 1156, 1162-1165 (Alaska 1985). This issue

has been litigated in courts throughout the country for at least three decades

and not a single jurisdiction has held that recording is required by the

Fourteenth Amendment.            Federal Courts have similarly aligned themselves

with this view. At least 11 United States Courts of Appeals have held that

neither the Fifth nor Fourteenth Amendment requires that custodial

interrogations be recorded.4         See United States v. Meadows, 571 F.3d



4
 The same due process requirements that apply to the states through the
Fourteenth Amendment apply to the federal government through the Fifth
(Footnote Continued Next Page)


                                          -5-
J-E01005-14

131, 147 (1st Cir. 2009); United States v. Tykarsky, 446 F.3d 458, 477



requiring the recording of interrogations may be, it is clear that such

                                                                             United

States v. Williams                                                     per curiam);

United States v. Cardenas, 410 F.3d 287, 296 (5th Cir. 2005); United

States v. Smith, 319 F.                                                per curiam);

United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004);

United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005); United

States v. Toscano-Padilla, 996 F.2d 1229 (9th Cir. 1993) (table) (per

curiam); United States v. Zamudio, 211 F.3d 1279 (10th Cir. 2000)

(table); United States v. Boston

(per curiam); United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988).

      In Harrell, this Court restated the law as it stood when Craft was

decided, i.e., only two states required custodial interrogations to be

recorded.5    Harrell, 65 A.3d at 429.            The laws of our sister states have




                       _______________________
(Footnote Continued)
Amendment. Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991)
(citation omitted).
5
  In addition to Alaska, the Minnesota Supreme Court required (and still
requires) recording pursuant to its supervisory authority. Minnesota v.
Scales, 518 N.W.2d 587, 591-592 (Minn. 1994).




                                            -6-
J-E01005-14

changed significantly since Craft.6    Today, 24 states and the District of

Columbia require the recording of custodial interrogations in certain

circumstances and Vermont will begin requiring such recording in October

2015.7 See Stephan, 711 P.2d at 1162-1165; Ark.R.Crim.P. 4.7; Cal. Penal

Code § 859.5; Conn. Gen. Stat. § 54-1o; D.C. Code § 5-116.01; 705

Ill.Comp.Stat. 405/5-401.5; 725 Ill.Comp.Stat. 5/103-2.1; Ind.R.Evid. 617;

Me. Rev. Stat., title 25, § 2803-B(1)(K); Md. Code, Crim. Proc. § 2-402;

Mich. Comp. Laws § 763.8; Minnesota v. Scales, 518 N.W.2d 587, 591-

592 (Minn. 1994); Mo. Rev. Stat. ch. 590.700; Mont. Code § 46-4-408; Neb.

Rev. Stat. § 29-4503; N.J.R.Crim.P. 3:17; N.M. Stat. § 29-1-16; N.C. Gen.

Stat. § 15A-211; Ore. Rev. Stat. § 133.400; Tex. Code Crim. Proc., art.




6
  See                       Compendium: Electronic Recording of Custodial
Interrogations        (July     11,      2014),        available       at
http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=33287&libID=33256
(last accessed Sept. 15, 2014).
7
  Each state differs with respect to the scope of its recording requirement.
In some states, all custodial interrogations must be recorded. Other states
only require that a custodial interrogation be recorded if police are
investigating certain enumerated offenses. Furthermore, some states have
certain exceptions to the recording requirement. For example, some states
do not require a custodial interrogation be recorded if the person being
interrogated requests that the interrogation not be recorded. As the exact




                                      -7-
J-E01005-14

38.22; Wis. Stat. § 968.073; see also 2014 Vt. Adv. Legis. Serv. 193

(effective Oct. 1, 2015).8

      Although beginning next year, a majority of jurisdictions in the United

States will require custodial interrogations to be recorded in certain

circumstances, that does not alter my analysis of the discrete issue of

whether the Fourteenth Amendment requires the recording of custodial

interrogations. On that issue, states are unanimous that it does not.

      The fact that the Fourteenth Amendment does not require the

recording of custodial interrogations is not dispositive of whether the trial

court abused its discretion in rejecting a jury instruction regarding the



court in this Commonwealth has addressed the issue of whether a trial court

is required to give such an instruction when so requested by the defendant.

      At least two states require a jury instruction upon request when an

interrogation is not recorded.   Massachusetts v. DiGiambattista, 813


8
  Appellant argues that Iowa, New Hampshire, and Massachusetts also
mandate recording of custodial interrogations. Those three jurisdictions,
however, have not implanted mandatory recording. See Iowa v. Hajtic,

particularly videotaping, of custodial interrogations should be encouraged,
                                                        Massachusetts v.
DiGiambattista, 813 N.E.2d 516, 532-535 (Mass. 2004) (requiring a jury
instruction be given if a custodial interrogation is not recorded); New
Hampshire v. Barnett, 789 A.2d 629, 632-633 (N.H. 200
incomplete recording of an interrogation results in the exclusion of the tape
recording itself, evidence gathered during the interrogation may still be




                                    -8-
J-E01005-14

N.E.2d 516, 533 (Mass. 2004); N.J.R.Crim.P. 3:17(e).             The instruction is

required       in    Massachusetts,   however,   because   failing    to   record   an

interrogation goes against the preferred procedure of the Supreme Judicial

Court of Massachusetts. DiGiambattista, 813 N.E.2d at 533. Likewise, the

failure to record an interrogation violates a rule of criminal procedure in New

Jersey; thus, such an instruction has been mandated.                 In Pennsylvania;

however, no statute, rule of court, or court decision mandates that custodial

interrogations be recorded.           Thus, the reasons that an instruction is

appropriate in Massachusetts and New Jersey do not apply to Pennsylvania.

      The proposed instruction submitted by Appellant instructs the jury that

the failure to record an interrogation can be considered when determining



voluntary. A criminal defendant is not entitled to a jury instruction regarding



credibility.        See Commonwealth v. Stoltzfus, 337 A.2d 873, 883 (Pa.



charge requested would have given undue weight to a single factor in the

                                                           . . the trial court acted

                                                                     Commonwealth

v. Powers, 577 A.2d 194, 197 (Pa. Super. 1990).

      Furthermore, if this Court were to require such an instruction upon

request in all cases in which an interrogation was not recorded, it would



                                         -9-
J-E01005-14

strongly suggest that such recording is mandatory. As noted below, that is

not the job of this Court.    As such, I conclude that the trial court did not

                                                                   nstruction.



confusion. The learned majority states that:

      Furthermore, we note that [Appellant] cites to no legal authority
      requiring instructions on the absence of recorded interrogations.
      Indeed, while acknowledging that recording such interrogations
      is not mandatory in Pennsylvania, Appellant invites us to create
      such a rule. Creation of such a rules and regulations, however,
      is a role reserved for the General Assembly, not the courts.


Majority Opinion, ante at 10-11 n.10.          I do not interpret this footnote as

prohibiting a trial court from giving an instruction similar to that requested

by Appellant in this case. Instead, the learned majority merely holds that

there is no requirement that such an instruction be given.          Accordingly, I

believe that there is no legal prohibition to giving such an instruction if a trial

court, in the exercise of its discretion, believes such an instruction is

appropriate under the facts and circumstances of the case before it.



statement that only the General Assembly may create a rule requiring that

custodial interrogations be recorded. As noted above, although a majority of

states that have adopted such a rule have done so through the legislative

process, one court of last resort has done so under its supervisory authority

and three jurisdictions have done so through rulemaking authority.           Thus,



                                      - 10 -
J-E01005-14

such a rule can be promulgated by either our Supreme Court or our General

Assembly, and not just our General Assembly. See Harrell, 65 A.3d at 450

                                     -based decision to compel recordation of

all police interrogations is a step that we, as an intermediate appellate court,

cannot take. Our legislature and our Supreme Court are empowered to do



     In sum, I believe that the Rape Shield Law is not applicable in this case;

however, further examination of Alverio was properly excluded pursuant to

Pennsylvania Rule of Evidence 403. I also believe that the jury charge did



however, the trial court did not abuse its discretion in declining to give




be affirmed.

      Judge Donohue joins this Concurring Opinion.




                                     - 11 -
