J. A04001/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
MICHAEL JOSEPH GROVE,                    :         No. 1183 WDA 2014
                                         :
                        Appellant        :


            Appeal from the Judgment of Sentence, July 3, 2014,
            in the Court of Common Pleas of Washington County
              Criminal Division at No. CP-63-CR-0001264-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 12, 2016

      Michael Joseph Grove appeals the judgment of sentence in which the

Court of Common Pleas of Washington County sentenced him to serve a

term of five to ten years’ imprisonment for sexual assault, 18 Pa.C.S.A.

§ 3124.1, and a consecutive term of two and one-half to five years’

imprisonment for indecent assault by forcible compulsion or threat of forcible

compulsion, 18 Pa.C.S.A. § 3126(a)(2), for a total term of imprisonment of

seven and one-half to fifteen years.

      The facts as recounted by the trial court are as follows:

                   During trial, the jury heard evidence that on
            April 14, 2012, “Victim”) was participating in a social
            event at an on campus residence following California
            University of Pennsylvania’s annual alumni rugby
            game when she was assaulted by Michael Joseph
            Grove (hereinafter referred to as [appellant]. At the
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          time of the incident, Victim was a freshman at
          California University of Pennsylvania.

                 On the morning of April 14, 2012, Victim was
          participating in a rugby event at the University.
          During the course of the rugby match, Victim
          encountered [appellant], who was serving as a
          referee.    Victim testified that there was alcohol
          present at the game, but she did not imbibe any
          alcohol.

                After the matches concluded, members of the
          team and the alumni, including Victim, returned to a
          residence that was referred to as the “rugby house.”
          Victim did not reside at the rugby house. Victim and
          some fellow teammates then attended a social event
          held for the alumni game at McMonagle’s Pub
          nearby.

                 Victim testified that alcohol was served at the
          pub, but Victim did not drink any alcohol. Victim
          testified she was given a wristband by the pub to
          indicate she was not twenty-one (21) years of age.
          Victim testified that she again encountered
          [appellant] at the pub.         Victim explained that
          although she did not know [appellant] by name,
          when she saw [appellant] at the pub she recognized
          him as the rugby referee and they acknowledged one
          another by nodding heads at each other. She further
          testified that as she proceeded to walk by
          [appellant], he tapped Victim on her butt.

                 Later that evening, Victim joined other
          members of the male and female rugby teams and
          left the pub and returned to the rugby house. While
          at the rugby house, Victim re-encountered
          [appellant] as she stood in the kitchen waiting to use
          the bathroom.

                Victim made conversation with [appellant] until
          the bathroom became available. Victim stated to
          [appellant] that he did a poor job of refereeing the
          rugby match. At that point, [appellant] grabbed
          Victim’s arm and pulled her close to him and he said


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          to her, “let me make it up to you.” Victim tried
          pushing [appellant] away, but he continued to pull
          her close to him and repeating [sic] “let me make it
          up to you.” Victim testified that the actions made
          her uncomfortable and she tried telling [appellant]
          she was gay to turn him off.

                The bathroom door opened and [appellant]
          quickly dropped his grasp of the Victim. Victim’s
          friend Rachel Schleicher exited the bathroom. After
          Ms. Schleicher exited the kitchen, Victim testified
          that she was immediately forcibly drug [sic] into the
          bathroom by [appellant]. Victim further testified
          that the bathroom door was locked behind her.
          Victim indicated that the incident happened very
          quickly and she did not yell for help. Victim also
          indicated that there was no one in the kitchen to yell
          to for help. She indicated that the television and
          music were being played loudly from the other room
          and did not believe anyone would hear her.

                Victim testified that after the bathroom door
          was shut and locked behind her, [appellant] began
          kissing her face. Victim testified that she attempted
          to push away from [appellant].               However,
          [appellant] began touching her vaginal area. Victim
          indicated she had spandex on under her sweatpants,
          so [appellant’s] hand, despite his efforts, did not
          come into skin contact with her vaginal area. Victim
          continued to try to push away, but [appellant] kept
          pulling her close to him with one hand. Victim
          further testified that [appellant] continuously
          attempted to force Victim to touch and stroke his
          penis. [Appellant] then grabbed Victim’s pigtail and
          tried shoving his penis into her mouth. However,
          Victim testified that she kept her mouth shut, so
          [appellant’s] penis touched her lips and teeth, but
          did not pass that point into her mouth. Testimony
          demonstrated that after [appellant] was unsuccessful
          in putting his penis into Victim’s mouth, he began
          kissing her neck and ear.

               Victim testified that during the assault she
          began trying to find her cell phone to reach out for


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          help. Victim indicated that she found her phone and
          texted her friend, Rachel Schleicher. Victim testified
          that she had exchanged text messages with
          Ms. Schleicher earlier in the day, so her name was
          [at] the top of her text message list. Testimony
          demonstrated that Victim held her phone away from
          her body for fear that [appellant] would see her.
          Therefore, Victim was blindly attempting to text
          message Ms. Schleicher “Help.” However, Victim’s
          first attempted text message to Ms. Schleicher
          spelled out the word “hall.” Following the word
          “hall,” Victim typed “help plz.”

                Ms. Schleicher testified that she was sitting in
          a bedroom with Ashley Dixon when she received a
          text message from the Victim.          Ms. Schleicher
          responded to the message and inquired where Victim
          was located. Victim responded via text message that
          she was in the bathroom.            Soon thereafter,
          Ms. Schleicher began knocking on the door and
          attempting to enter the locked bathroom.

                As soon as Ms. Schleicher began pounding on
          the bathroom door, [appellant] threw Victim off of
          him and pushed her into the corner. Ms. Schleicher
          then yelled out “let me in or I’m going to have to
          break in.” Ms. Schleicher testified that she ran to
          get a butter knife to try to unlock the door.
          Defendant then proceeded to unlock the door and
          exit. As Ms. Schleicher is [sic] retrieving the butter
          knife, she testified that the door opened and
          [appellant] was standing in the doorway.

                Victim testified she remained on the bathroom
          floor and began hysterically crying. Ms. Schleicher
          consoled her.     Victim then texted her boyfriend,
          Joseph Arafa, who came to the house. Testimony
          demonstrated that at some time after Ms. Schleicher
          left the bedroom, [appellant] came in and began
          talking to Ashley Dixon. Ms. Dixon testified that
          [appellant] stated “someone should go get that girl,
          she is pretty drunk.” As Victim was exiting the
          bathroom, Victim saw [appellant] sitting on a bed in
          a bedroom talking to Ms. Dixon.         Victim then


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            informed Mr. Arafa and Ms. Schleicher that
            [appellant] had assaulted her. Ms. Schleicher then
            began yelling for [appellant] to get out of the house.

                   Victim remained at the house as the police
            were called to the scene. Officer Timothy Sheehan,
            of the California Borough Police Department, arrived
            at the scene and testified that when he arrived the
            Victim was crying hysterically. He took a verbal
            statement from the Victim. Officer Sheehan further
            testified that the Victim came to the police station
            the next day or so and gave a written statement.
            Based on the information received, Officer Sheehan
            filed criminal charges against [appellant].

Trial court opinion, 7/9/15 at 5-9 (footnotes omitted).

      The jury found appellant guilty of the two charges on which he was

sentenced and not guilty of the charges of involuntary deviate sexual

intercourse by forcible compulsion, 18 Pa.C.S.A. § 3123(a)(1), and simple

assault, 18 Pa.C.S.A. § 2701(a)(1).

      Appellant raises the following issues for this court’s review:

            I.     DID THE TRIAL COURT ERR IN PERMITTING
                   TERTIMONY [SIC] THAT APPELLANT HAD
                   GRABBED OR TOUCHED THE BUTTOCKS OF
                   WOMEN OTHER THAN THE VICTIM ON THE
                   NIGHT OF THE INCIDENT IN QUESTION?

            II.    DID THE TRIAL COURT ERR IN PERMITTING
                   THE COMONWEALTH [SIC] TO REPEATEDLY
                   ELICIT TESTIMONY THAT APPELLANT WAS
                   KNOWN AS “CHESTER” OR HAVE IT’S [sic]
                   WITNESSES REFER TO APPELLANT BY THE
                   NICKNAME “CHESTER” AND IN NOT GRANTING
                   APPELLANT’S MOTION FOR MISTRIAL?

            III.   DID THE TRIAL COURT ERR IN NOT
                   PERMITTING TRIAL COUNSEL TO INTRODUCE
                   TWEETS THAT COULD HAVE BEEN PROVEN TO


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                    BE WRITTEN BY ALLEGED VICTIM AFTER THE
                    INCIDENT THAT FORMED THE BASIS OF THE
                    CHARGES AGAINST APPELLANT, IN WHICH
                    SHE TALKED ABOUT SMOKING KUSH[1] AND
                    CONSUMING     ALCOHOL,    WHERE    THE
                    COMMONWEALTH INTRODUCED EVIDENCE OF
                    HER CONDITION AFTER THE INCIDENT,
                    WHICH WAS INCONSISTENT WITH THE
                    STATEMENTS MADE IN SAID TWEETS?

Appellant’s brief at 5.

        This court’s standard of review regarding the admissibility of evidence

is as follows:

              Our standard of review regarding the admissibility of
              evidence is an abuse of discretion. The admissibility
              of evidence is a matter addressed to the sound
              discretion of the trial court and . . . an appellate
              court may only reverse upon a showing that the trial
              court abused its discretion. An abuse of discretion is
              not a mere error in judgment but, rather, involves
              bias,   ill will,   partiality, prejudice,   manifest
              unreasonableness, or misapplication of law.

Commonwealth v. Cox, 115 A.3d 333 (Pa.Super. 2015). The standard of

review for the admission of prior bad acts is also an abuse of discretion

standard. Commonwealth v. Trippett, 932 A.2d 188 (Pa.Super. 2007).

        Initially, appellant contends that the trial court erred when it permitted

testimony that appellant had grabbed or touched the buttocks of women

other than the victim on the night of the incident in question. The trial court

did not order the redaction of any reference to other women and did not

issue a cautionary jury instruction. Further, appellant alleges that the trial


1
    “Kush” refers to high grade marijuana.


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court failed to weigh the probative value of the evidence versus the

prejudicial effect on appellant as required under Pa.R.E. 403. Appellant also

argues that the Commonwealth failed to comply with Pa.R.E. 404(b)(3)

because it did not provide notice that it intended to introduce evidence of

appellant’s bad acts.

        Specifically, appellant points to two separate incidents during the

course of the trial. First, the Commonwealth chose to have the victim read

the entire statement which she gave to the police in open court:

              After the tournament, there was a social for all
              teams and sirs[2] to attend at McMonagle’s Pub.
              While the teams, as well as [appellant] was at the
              pub, [appellant] made sexual remarks and kept
              grabbing my buttocks. But this was not happening
              only to myself but to other teammates and other
              girls.

Notes of testimony, 12/9/13 at 164.

        Prior to the reading of this statement, appellant’s counsel objected on

the basis that touching other women was “other criminal conduct” as an

indecent assault. (Id. at 158.) The trial court overruled the objection.

        Second, appellant refers to testimony from Meaghan Juba (“Juba”),

another rugby player, who testified regarding appellant’s touching the




2
    In rugby, the referee is known as “sir.”


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buttocks of women at McMonagle’s.3 Appellant’s counsel objected. The trial

court overruled the objection.

       Regarding the two statements, the trial court opined:

                   During     cross    examination,   Victim  was
             questioned at length about her recollection of the
             events of April 14, 2012.        Further, Victim was
             questioned several times by defense counsel about
             her written statement in connection with what she
             had testified to on direct examination.


3
    The Commonwealth questioned Juba:

             Q:     Is there anything you remember              about
                    [appellant] at McMonagle’s?

             A:     Yeah. He was going around . . . trying to pick
                    up some girls, but grabbing butts as well.

             Q:     What do you mean by grabbing butts?

             A:     Well, a couple times when I wasn’t paying
                    attention, I would feel someone walk by and
                    grab my butt. It was kind of like a grab. And I
                    would turn around and kind of give him . . .
                    like a what are you doing look, like who are
                    you. And he would kind of look at me and
                    walk away. He was doing that to other girls at
                    the bar.

             ....

             Q:     Did you know anyone else, in particular, other
                    than yourself, that he grabbed their butt?

             A:     I saw him grab the victim’s and Dixon’s and
                    Rachel’s, but not like too, too much. I mean,
                    there is a lot . . . grabbing going on at bars, so
                    nothing out of the ordinary too, too much.

Id. at 310-311.


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                The Trial Court submits that the written
          statement read into evidence by Victim was
          admissible as a prior consistent statement as
          rebuttal   to    the  cross-examination questions
          attempting to paint the statement as a prior
          inconsistent statement.

               Pennsylvania Rule of Evidence 613(c)
               states:

               Evidence of a prior consistent statement
               by   a     witness  is   admissible   for
               rehabilitation purposes if the opposing
               party is given an opportunity to cross-
               examine the witness about the statement
               and the statement is offered to rebut an
               express or implied charge of:

               (1)   Fabrication, bias, improper
                     influence or motive, or faulty
                     memory and the statement
                     was made before that which
                     has been charged existed or
                     arose; or

               (2)   Having     made       a    prior
                     inconsistent statement, which
                     the witness has denied or
                     explained, and the consistent
                     statement      supports      the
                     witness’ denial or explanation.

                In Commonwealth v. Swinson, 626 A.2d
          627 (Pa.Super. 1993), the Pennsylvania Superior
          Court determined that a detective was permitted to
          read from his report statements made to him by a
          victim/witness during an interview regarding the
          incident in question. The Superior Court opined that
          the witness was subject to extensive cross-
          examination and that the statement was merely a
          prior consistent statement offered to rehabilitate the
          witness, whose credibility was attacked.




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                 The Trial Court finds the Swinson reasoning
          analogous and persuasive to the matter at bar. A
          review of the transcripts revealed that the Victim
          was subject to extensive cross-examination of her
          recollection of the events on April 14, 2012, with the
          design of casting doubt on her memory and general
          credibility.    Defense counsel, by bringing out
          inconsistencies in the Victim’s testimony, clearly
          advanced the issue of Victim’s credibility. Therefore,
          it was not error for the Trial Court to permit the
          Victim to read her written statement that she made
          to the police in order to rehabilitate and rebut any
          claim of inconsistency with respect to her prior
          testimony.

          ....

          [A]ppellant asserts the Trial Court erred in
          permitting the testimony of Commonwealth witness
          Megan [sic] Juba. . . . [Appellant] claims that such
          conduct was uncharged criminal conduct and the
          Commonwealth provided no notice and the
          testimony was extremely prejudicial.

          ....

          Preliminarily, the Trial Court reiterates that
          evidentiary decisions will not be disturbed absent an
          abuse of discretion. During direct examination of
          Victim, the prosecution introduced evidence that
          [Appellant] had “tapped” the Victim on the butt at
          McMonagle’s Bar, prior to the assault in question.
          No objection to the questioning was lodged by
          defense counsel.      On cross-examination of the
          Victim, the matter was rekindled by defense counsel.
          However during redirect examination of Victim,
          defense counsel stated an objection asserting that
          any testimony or evidence that [Appellant] touched
          the buttocks of other individuals, not a party to this
          matter, should be barred as it is uncharged criminal
          conduct.     The Trial Court reasoned that it was
          appropriate to enter evidence of [Appellant] touching
          and grabbing butts of people other than the Victim,
          on the evening in question.


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          Initially, the Trial Court observed that during cross
          examination of Victim, defense counsel alleged that
          the Victim consented to the assault by inferring that
          because Victim was touched on the butt at the bar,
          she should have been fearful of [appellant] later that
          evening. Defense counsel urged that in the kitchen
          of the rugby house, the Victim should have either left
          the room or cried out for help.

          ....

                The Trial Court submits that it did not abuse its
          discretion in admitting evidence of the [appellant]
          touching and/or grabbing butts of individuals other
          than the Victim, during the course of the evening in
          question.    During cross examination of Victim,
          defense counsel attempted to present a defense that
          the Victim consented to the activity.          Defense
          counsel asked numerous questions as to why the
          Victim did not run away or yell for help after she
          knew that the [appellant] had already grabbed her
          butt at the bar. This line of questioning inferred that
          because [appellant] grabbed her butt at the bar, she
          should have been alarmed and fearful of him later in
          the evening when they were alone in the kitchen.
          Testimony demonstrating that [appellant] grabbed
          the buttocks of others exhibited that there was no
          indication to Victim that the [appellant] was
          targeting her. Accordingly, there was no reason for
          her to be on guard that there may be an impending
          sexual assault. Moreover, such evidence showed a
          lack of consent and that the grabbing was not a
          prelude to consensual sexual activity, rebutting any
          inference by the defense that the Victim consented
          to sexual contact.

                 We have recognized that evidence of
                 prior bad acts or crimes may be admitted
                 to show motive, intent, absence of
                 mistake or accident, common scheme,
                 plan, or design, or identity of the
                 perpetrator of a crime.     In addition,
                 evidence of other crimes may be


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                  introduced where such evidence was part
                  of the chain or sequence of events which
                  became part of the history of the cases
                  in question and formed part of the
                  natural development of the facts.

                  The     evidence    demonstrates      [appellant’s]
            motive and completes the picture of the actual
            events of that night and the natural development of
            the facts of the case. It [is] well established that:

                  Pennsylvania courts are not “required to
                  sanitize the trial to eliminate all
                  unpleasant    facts   from    the   jury’s
                  consideration where those facts are
                  relevant to the issues at hand and form
                  part of the       history and natural
                  development of the events and offenses
                  for which the defendant is charged.”

                  After careful consideration, the probative value
            of the evidence that the [appellant] grabbed the butt
            of the individuals other than the Victim outweighs
            any potential for prejudice. “Evidence of uncharged
            crimes of the most serious and offensive nature has
            been admitted pursuant to the res gestae
            exception.” The prior bad acts in question were not
            serious and offensive and were not described as
            such. The [appellant] is not being tried in a vacuum
            and the evidence did not invite the jury to determine
            the matter on an improper basis. Therefore, there
            was no abuse of discretion here.

Trial court opinion, 7/9/15 at 24-25, 34-35, and 37-38 (footnotes and

citations omitted).

      This court finds no abuse of discretion by the trial court. First, as the

Commonwealth and the trial court stated, the evidence was not introduced

to establish appellant’s bad character in violation of Pa.R.E. 404.        The

Commonwealth offered the evidence to counter the argument that the


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sexual assault was consensual because appellant earlier had grabbed the

victim’s buttocks and that her failure to yell or fight when he confronted her

at the Rugby House indicated that she was willing to engage in sexual

activity with appellant. This evidence indicated that while appellant grabbed

the victim’s buttocks, he did the same to other people.

      Second, the Commonwealth did not need to provide notice of its

intention to introduce this evidence because the Commonwealth only did so

in response to the appellant’s argument that the sexual activity was

consensual.    As the trial court stated, appellant opened the door to this

evidence when he suggested that the victim was aware that appellant was

targeting her by this action. Evidence that he grabbed the buttocks of other

women refuted this contention. Third, this court finds that the trial court did

not abuse its discretion when it determined that the probative value of the

evidence outweighed the prejudicial effect.

      Appellant next contends that the trial court erred when it permitted

the Commonwealth to repeatedly elicit testimony that appellant was known

as “Chester” or have the Commonwealth’s witnesses refer to appellant as

“Chester” and when it failed to grant a mistrial. Appellant argues that the

use of the name “Chester” is a shortened version of “Chester the Molester”

and the use of the name “Chester” when referring to appellant was so

prejudicial that a mistrial should have been granted. Appellant asserts that

a “Google” search on the internet of “Chester the Molester” resulted in



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103,000 results including a Wikipedia entry that “Chester the Molester” was

a comic character in Hustler magazine who was known for molesting women.

      The victim testified that she had heard that appellant was called

“Chester.”   (Notes of testimony, 12/9/13 at 36.)       Appellant moved for a

mistrial which was denied. Later, Ashley Dixon also referred to appellant as

“Chester.” (Id. at 262.)

      The trial court explained:

                   The Trial Court submits that the unsolicited
             remark from the Victim did not rise to the level of
             depriving the [appellant] of a fair and impartial trial
             and there was no ground for a mistrial.

                   In the second instance, the Commonwealth
             witness, Ashley Dixon, repeatedly referred to
             [appellant] by his last name, “Grove.”        The
             prosecution queried whether Ms. Dixon always
             referred to the [appellant] by his last name. In
             response, Ms. Dixon stated that she previously
             referred to the [appellant] as “Chester.” Defense
             counsel again made a motion for mistrial.

                   The Trial Court observes that, “the remedy of a
             mistrial is an extreme remedy required ‘only when
             an incident is of such nature that its unavoidable
             effect is to deprive the appellant of a fair and
             impartial tribunal.’” The Trial Court asserts that the
             prosecution had a good faith basis for the question
             and that the mere passing reference of the name
             “Chester” did not inflame the passions of the jury
             such that [appellant] would be deprived of his right
             to a fair and impartial jury. Accordingly, the Trial
             Court discerned no prejudice to the [appellant] and
             likewise found no grounds for a mistrial. (Footnote
             omitted.)

Trial court opinion, 7/9/15 at 16.



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                  The standard governing our review of a trial
            court’s refusal to grant a request for a mistrial has
            been previously well summarized by this Court:

                  The decision to declare a mistrial is
                  within the sound discretion of the court
                  and will not be reversed absent a
                  “flagrant    abuse      of     discretion.”
                  Commonwealth         v.    Cottam,     420
                  Pa.Super. 311, 616 A.2d 988, 997
                  (1992); Commonwealth v. Gonzales,
                  415 Pa.Super. 564, 570, 609 A.2d 1368,
                  1370-71 (1992).        A mistrial is an
                  “extreme remedy . . . [that] . . . must
                  be granted only when an incident is of
                  such a nature that its unavoidable effect
                  is to deprive defendant of a fair trial.”
                  Commonwealth v. Vazquez, 421
                  Pa.Super. 184, 617 A.2d 786, 787-88
                  (1992) (citing Commonwealth v.
                  Chestnut, 511 Pa. 169, 512 A.2d 603
                  (1986),    and    Commonwealth           v.
                  Brinkley, 505 Pa. 442, 480 A.2d 980
                  (1984)).

            Commonwealth v. Stilley, 455 Pa.Super. 543, 689
            A.2d 242, 250 (1997).

Commonwealth v. Bracey, 831 A.2d 678, 682-683 (Pa.Super. 2003),

appeal denied, 844 A.2d 551 (Pa. 2004).

      Here, this court finds no abuse of discretion by the trial court. Despite

appellant’s references to his “Google” search which, incidentally, is not part

of the record, there is no indication that the jury understood that the name

“Chester” could have the meaning ascribed to it by appellant.

      Next, appellant contends that the trial court erred when it did not

permit appellant to introduce “tweets” where the victim talked of smoking



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“kush”   and   consuming   alcohol   where    the     Commonwealth     introduced

evidence of the victim’s condition after the incident which was inconsistent

with the statements in the “tweets.” Because the Commonwealth portrayed

the victim as a non-drinking, damaged individual following the incident with

appellant, appellant argues that it should have been permitted to place the

“tweets” into evidence.

      Appellant   attempted    to    introduce      this   evidence   during   the

cross-examination of the victim’s boyfriend, Joe Arafa, who testified that the

victim did not drink or use marijuana.

      The trial court determined:

                  Defense counsel did not inquire during cross
            examination of the Victim if she had been affected by
            her encounter with the [appellant] or whether since
            the encounter she drinks alcohol or uses drugs.
            Later, during direct examination of Mr. Arafa,
            testimony was elicited as to how he has seen the
            Victim affected by the assault and whether she had
            become introverted.     Thereafter, defense counsel
            argued he should be permitted to submit evidence
            that the Victim has not become introverted because
            an unauthenticated twitter message states she
            drinks alcohol and smokes marijuana.

                  Developing an inference through Mr. Arafa’s
            testimony that the Victim’s encounter with the
            [appellant] must have been consensual due to an
            unauthenticated twitter message from Victim is not
            admissible. There were no facts in evidence that the
            Victim ever used drugs or whether she has
            consumed alcohol since the assault. Moreover, the
            defense did not question the Victim in this regard.
            Instead, defense sought to impeach Mr. Arafa about
            his personal knowledge of the Victim which was an
            issue not material to this matter. Therefore, the


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             Trial Court found this to be a collateral issue and not
             admissible.

                   Defense counsel was given wide latitude to
             cross-examine Mr. Arafa to test his recollection of
             those events. The defense had similar latitude for
             cross-examination of the Victim. For the reasons
             stated above, the Trial Court did not abuse its
             discretion and asserts this claim of error has no
             merit.

Trial court opinion, 7/9/15 at 41-42 (footnote omitted).

      Appellant argues that the tweets could have cast doubt on the

Commonwealth’s evidence regarding the current state of the victim’s mental

health.

      This court agrees with the trial court that the trial court did not abuse

its discretion. Appellant does not explain how the fact that someone drank

alcohol or smoked marijuana would indicate the state of their mental health.

Further, the alleged tweet was posted approximately one year after

appellant’s assault. The question of whether the victim consumed alcohol a

year after the assault is not probative of whether or not she was attacked by

appellant.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2016


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