Com. v. Jones, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN JONES :
:
Appellant : No. 551 MDA 2018
Appeal from the Judgment of Sentence February 28, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005514-2016,
CP-67-CR-0006180-2016
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 17, 2019
Appellant, Kevin Jones, appeals from the judgment of sentence entered
on February 28, 2018, following his jury trial convictions for two counts each
of burglary and criminal trespass and one count each of theft by unlawful
taking, indecent assault, and criminal attempt of sexual assault.1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. This appeal involves two separate incidents that occurred on July 17,
2016. At trial, M.E.2 testified that while sleeping in her bed, she awoke at
4:00 a.m. to find a man holding her hand. N.T., 10/30/2017, at 109. She
told him to leave and he did. Id. M.E. noticed that a bottle of tequila was
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1 18 Pa.C.S.A. §§ 3502(a)(1), 3503(a)(1)(ii), 3921(a), 3126(a)(1),
901(a)/3124.1, respectively.
2 We use the victims’ initials to protect their identities.
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* Retired Senior Judge assigned to the Superior Court.
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missing and that a window was open. Id. at 114-117. Police responded to a
call from M.E. and she gave them a description of the intruder. Id. at 112.
Sometime later, police took M.E. to make an identification of a person they
had taken into custody. Id. at 113. M.E. identified Appellant as the
perpetrator. Id. She also identified Appellant at trial. Id.
P.S. also testified at trial. She testified that she returned home on July
17, 2016 between 1:00 a.m. and 2:00 a.m. after imbibing alcohol at a party.
Id. at 126. P.S. testified that she had consensual sex with a male friend and
that she fell asleep afterwards, but awoke to someone kissing her and feeling
her breasts. Id. at 128-131. She also testified that the man was trying to
penetrate her vagina with his flaccid penis and his hand. Id. at 131-134. P.S.
testified that she assumed it was her male friend but that she smelled
cigarette smoke and realized that she did not know the person in bed with
her. Id. at 131-132. P.S. demanded the man identify himself and leave. The
man replied, “I’m Kevin Jones” and acted as if they knew each other. Id. at
132. P.S. testified that she did not know the man and asked him to leave until
he finally acquiesced. Id. Before leaving, the man asked P.S. for a bottle of
tequila that he left in her room. Id. at 135. She gave it to him and he left.
Id. P.S. called the police. Id. at 136. When she went outside, police already
had Appellant in custody inside a police car, the bottle of tequila was on top
of the car, and P.S. was able to identify Appellant. Id. at 137. Police
recovered a pair of unidentified boxer shorts from P.S.’s bedroom. Id. at 140.
P.S. went to York Hospital where a trauma nurse performed a sexual assault
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examination. Id. at 140. P.S. gave a statement to police two days after the
incident. Id. at 144. P.S. identified Appellant at trial. Id. at 137.
On November 2, 2017, a jury convicted Appellant of the aforementioned
charges. On February 28, 2018, the trial court sentenced Appellant to an
aggregate term of 12 to 24 years of incarceration. Appellant filed a timely
post-sentence motion on March 8, 2018. The trial court denied relief on March
13, 2018. This timely appeal resulted.3
On appeal, Appellant presents the following issues for our review:
1. The trial court erred when it misapplied the Rape Shield Law
(Pa.R.E. 412/18 Pa.C.S.[A.] § 3104) by prohibiting Appellant
from cross-examining the victim on prior sexual conduct on the
evening of the incident. Appellant offered the testimony to
demonstrate the victim had a poor memory of the evening and
to demonstrate she was not credible as to the events of her
allegation that Appellant assaulted or attempted to assault her
in a sexual manner. Such impeachment testimony falls outside
the scope of Section 3104, it was relevant, and it was not so
overly prejudicial that the trial court should have prohibited the
line of questioning of the victim. This limitation on
cross-examination was an abuse of discretion, and a violation
of Appellant’s confrontation rights under the Sixth Amendment
of the U.S. Constitution and Article I, Section 9 of the
Pennsylvania Constitution.
2. The Commonwealth presented insufficient evidence to convict
Appellant of burglary beyond a reasonable doubt because the
Commonwealth failed to prove Appellant entered the residence
with the intent to commit a crime, namely, theft by unlawful
taking.
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3 Appellant filed a notice of appeal on March 23, 2018. On April 26, 2018,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
August 8, 2018.
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Appellant’s Brief at 5.
In his first issue presented, Appellant claims that the trial court abused
its discretion when it relied upon the Rape Shield Law at 18 Pa.C.S.A. § 3104
to prohibit him from cross-examining P.S. regarding her consensual sexual
activity on the same night, just prior to the incident at issue. Appellant’s Brief
at 15-21. Appellant claims that the line of questions were not directed toward
her virtue and chastity. Id. at 15. Instead, Appellant argues that questions
about the prior sexual encounter between P.S. and her male friend4 were
necessary because of discrepancies in her testimony as P.S. “had difficulty
remembering whether [Appellant’s] penis penetrated her vagina, which is a
necessary element for [s]exual [a]ssault.” Id. Thus, Appellant maintains
“[t]he questioning about [P.S.’s] memory, including the earlier sexual activity
occurring only several hours earlier, directly affected the jury’s assessment of
her credibility.” Id. Additionally, Appellant claims that the Commonwealth
opened the door to the prior consensual sexual activity by introducing
evidence that in P.S.’s “inebriated and half-asleep state, she did not realize it
was not her earlier sexual partner, [] but instead [Appellant] who returned to
bed with her and attempted sexual intercourse.” Id. at 20-21.
Our standard of review of a trial court's ruling on the admissibility of
evidence is as follows:
A trial court's ruling on the admissibility of evidence of the sexual
history of a sexual abuse complainant will be reversed only where
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4 P.S.’s friend did not testify at trial.
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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) (en banc)
(internal quotations and citation omitted).
The Rape Shield Law provides:
(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 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.
Here, upon our review of the record, Appellant did not file a written
motion or make an offer of proof prior to trial and the trial court did not
determine whether an in camera hearing was warranted pursuant to 18
Pa.C.S.A. § 3104(b). Instead, Appellant sought to question P.S. at trial about
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consensual sex with an unrelated third-party. N.T., 10/30/2017, at 145-146.
An en banc panel of this Court, however, has previously determined:
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, 623 A.2d 336, 339
(Pa. Super. 1993), appeal denied, 637 A.2d 281 (Pa. 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,
890 A.2d 1057 (Pa. 2005). [T]he 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, 582
A.2d 341, 346 (Pa. 1990), appeal denied, 600 A.2d 952 (Pa.
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, 606 A.2d 449,
457 (Pa. Super. 1992), appeal denied, 614 A.2d 1142 (Pa. 1992).
In determining whether the application of the Rape Shield Law
violates a defendant's constitutional rights to confront and
cross-examine witnesses against him, this [C]ourt has [] held:
In Pennsylvania, we have come to resolve this
question through a relatively elaborate procedure
which is designed to ensure that 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. The process begins with the
defendant submitting a specific proffer to the court of
exactly what evidence he or she seeks to admit and
precisely why it is relevant to the defense. This
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procedure forces the defendant to frame the precise
issues and interests involved, and prevents him or her
from embarking upon ‘fishing expedition style
intrusions on Rape Shield Law protections.’ 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.
Burns, 988 A.2d at 690–691 (some citations omitted).
Here, there was no written motion or offer of proof filed prior to trial.
Such failure was fatal to Appellant’s claim and bars our review of the trial
court’s decision to prohibit the line of questioning. Moreover, assuming
arguendo that Appellant properly raised and preserved the claim, our review
leads to the conclusion that the trial court properly precluded the evidence in
contention. We have recently reiterated:
[T]he Rape Shield Law must at times yield to a defendant's right
to cross-examine witnesses and instructs the trial court to conduct
a balancing test that considers whether the proposed evidence is
relevant to attack credibility, whether the probative value
outweighs the prejudicial impact and whether there are
alternative means to challenge credibility:
Evidence that tends to impeach a witness' credibility
is not necessarily inadmissible because of the Rape
Shield Law. When determining the admissibility of
evidence that the Rape Shield Law may bar, trial
courts hold an in camera hearing and conduct a
balancing test consisting of the following factors: (1)
whether the proposed evidence is relevant to show
bias or motive or to attack credibility; (2) whether the
probative value of the evidence outweighs its
prejudicial effect; and (3) whether there are
alternative means of proving bias or motive or to
challenge credibility.
Also, this [C]ourt has held that evidence of past sexual conduct
by the victim with third persons is of little relevance to the issue
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of consent between the victim and a defendant when the victim
and defendant did not have a prior sexual relationship.
Commonwealth v. Cramer, 195 A.3d 594, 603 (Pa. Super. 2018) (internal
citations and original emphasis omitted).
Here, the trial court determined that the prejudice to the victim
outweighed the probative value of the proffered evidence and there were
alternative means to test the victim’s credibility. It opined that Appellant
tested the victim’s credibility by questioning: (1) the victim about her level
of intoxication and recollection of events; (2) the trauma nurse about the
victim’s ability to remember details of the incident; and, (3) the officer who
memorialized the victim’s statements soon thereafter. See Trial Court
Opinion, 8/8/2018, at 25. Moreover, the trial court noted that the jury was
able to “sift” through the victim’s testimony in determining her credibility,
because it acquitted Appellant of a “completed sexual assault” and, therefore,
could “draw a distinction regarding penetration.” Id. We agree with the trial
court’s balancing assessment and discern no abuse of discretion in precluding
cross-examination about P.S.’s prior unrelated sexually activity. Accordingly,
Appellant’s first claim lacks merit.
Next, Appellant claims that the Commonwealth failed to present
sufficient evidence to support his conviction for burglary, because it did not
prove that Appellant entered M.E.’s residence with the intent to commit a
crime therein. Appellant’s Brief at 22-24. In sum, he contends:
While [Appellant] stole a bottle of tequila for which a jury
convicted him, the circumstances do not suggest that he entered
with such intent. He did not immediately raid the liquor cabinet,
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nor did he rummage through any other areas of the home looking
for valuables. At best, the evidence demonstrates that after
[M.E.] realized he was in the residence and told [him] to leave,
[Appellant] grabbed the bottle of tequila on the way out the door.
This demonstrates [Appellant’s] intent to steal the bottle formed
after, not contemporaneously, with the act of entering [M.E.’s]
residence without permission.
The Commonwealth may contend that [Appellant] was in the
process of committing some form of assault on [M.E.] and that is
sufficient to demonstrate a contemporaneous intent to commit a
crime as he entered the residence. However, [M.E’s] testimony
demonstrates that [Appellant] never took any steps to get into
bed or remove his (or her) clothes while in [M.E.’s] residence.
[Appellant] held her hand and talked to her until she woke up and
told him to leave. When told to leave, he did so immediately.
Beyond a tenuous assumption based on these facts, no other
evidence was presented to suggest [Appellant] entered [M.E.’s]
residence with an intent to commit any crime.
Id. at 23-24.
Our standard of review is as follows:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
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This standard is equally applicable to cases where the evidence is
circumstantial rather than direct so long as the combination of the
evidence links the accused to the crime beyond a reasonable
doubt. Although a conviction must be based on more than mere
suspicion or conjecture, the Commonwealth need not establish
guilt to a mathematical certainty.
Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018) (internal
citations and quotations omitted).
“Burglary is defined as the act of entering or occupying a structure with
intent to commit a crime therein.” Commonwealth v. Baker, 2018 WL
6729840, at *4 (Pa. Super. 2018), citing Commonwealth v. Magnum, 654
A.2d 1146, 1147 (Pa. Super. 1995); 18 Pa.C.S.A § 3502(a)(2). A “totality of
the circumstances” approach is implemented where “[t]he Commonwealth
must establish, as part of its evidentiary burden, additional evidence that goes
beyond the mere breaking in of a door or window.” Baker, 2018 WL 6729840,
at *4 (citation omitted). Our Supreme Court has also stated:
[I]n order to secure a conviction for burglary, the Commonwealth
is not required to allege or prove what particular crime [a
defendant] intended to commit after his forcible entry into the
private residence. A conclusion to the contrary would place the
police and citizens of this Commonwealth in the dangerous
position of having to permit a burglar to take a substantial step
towards the commission of a particular crime, potentially risking
violence, in order to secure a conviction for burglary.
Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994).5 In addition,
flight can constitute circumstantial evidence of consciousness of guilt. See
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5 Apropos to the instant case, the Alston decision also cited Justice James
T. McDermott’s decision in Commonwealth v. Wagner, 566 A.2d 1194,
1194 (Pa. 1989), wherein Justice McDermott stated:
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Commonwealth v. Housman, 986 A.2d 822, 831 (Pa. 2009) (citation
omitted).
Here, Appellant intentionally and surreptitiously entered M.E.’s premises
by opening and climbing through a window. Once inside, Appellant sat quietly
next to M.E. and held her hand while she slept. When the victim woke up
and demanded Appellant leave, he fled. The fact that Appellant did not
commit any sexual or physical acts against M.E. (ostensibly because she
awoke and demanded Appellant leave) did not prohibit a jury from finding that
Appellant intended to commit a crime against the victim when he entered her
home through a window. The Commonwealth was not required to specify the
intended crime and Appellant did not have to take a substantial step towards
the commission of a specific crime. Moreover, Appellant does not dispute that
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When a stranger first tries to enter your garage, and then breaks
the window of your door, on a given evening, neither you nor a
jury should be considered harsh, if you believe he is not an aimless
waif bringing compliments of the evening, or a passing sojourner
of eccentric ways, or a harmless loiterer in the evening shadows.
Those supporting reversal would have us believe that hiding in
your bedroom under such conditions is an unnecessary foolishness
in the presence of simple pleasantries. They would see no evil
through such jaundiced eyes, hear none in the melodious tinkle of
your breaking window, and obviously would say no evil of a man
with an umbrella. The jury could find, and did, more sinister
reasons afoot. I would leave the appellant[, Wagner,] where they
found him, doing what they had every right to believe he was
doing, attempting a burglary.
Alston, 651 A.2d at 1095, citing Wagner, 566 A.2d at 1194.
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he actually stole a bottle of tequila from the residence while inside. Instead,
he contends that he did not form an intent to take the liquor prior to entry.
Based upon a totality of the circumstances, however, the jury was free to
determine otherwise and we will not usurp that decision. Finally, Appellant
fled the residence and the jury was free to infer that Appellant’s consciousness
of guilt further supported an intent to commit a crime. Based upon the totality
of the circumstances and viewing the evidence in the light most favorable to
the Commonwealth as verdict winner, we conclude that there was sufficient
evidence showing Appellant intended to commit a crime before entering M.E.’s
residence. Hence, the trial court did not abuse its discretion or err as a matter
of law in rejecting Appellant’s sufficiency challenge and Appellant’s second
issue fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2019
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