Com. v. Allen, J. ( 2022 )

J-A17037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH ALLEN :
:
Appellant : No. 2157 EDA 2021
Appeal from the Judgment of Sentence Entered October 13, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002549-2020
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED AUGUST 31, 2022
Appellant, Joseph Allen, appeals from the aggregate judgment of
sentence of 10 to 23 months’ imprisonment followed by one year of probation,
which was imposed after his jury trial conviction for attempt to commit
aggravated indecent assault and indecent assault.1 For the reasons set forth
below, we affirm.
This case arises out of events that occurred at Jake’s Bar in West
Chester, Pennsylvania on July 25, 2020. That evening, while Victim was
sitting by herself at the bar, a woman approached Victim and asked her to
play shuffleboard and introduced Victim to Appellant. Trial Court Opinion,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901 and 3125(a)(1) and 18 Pa.C.S. § 3126(a)(1), respectively.
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12/13/21, at 1-2; N.T. Trial, 6/14/21, at 79-81. Victim and Appellant, who
did not know each other, began playing shuffleboard together at the same end
of the shuffleboard table. Trial Court Opinion, 12/13/21, at 2; N.T. Trial,
6/14/21, at 81-87. After they had been played shuffleboard for a while,
Appellant made a series of advances on Victim, including touching her rear
end, reaching under her skirt multiple times, touching the outside of the crotch
of her underwear once and later touching inside her underwear while
attempting to penetrate her vagina with his fingers, and also touching her
breasts. Trial Court Opinion, 12/13/21, at 2; N.T. Trial, 6/14/21, at 87-93;
N.T. Trial, 6/15/21, at 33-34, 38-39, 43-44; Commonwealth Ex. 2. Victim did
not give Appellant any indication that the advances were welcome, removed
Appellant’s hands from her breasts, and when he touched inside her
underwear, she walked away from him and the shuffleboard game. Trial Court
Opinion, 12/13/21, at 2; N.T. Trial, 6/14/21, at 91-93, 106-07; N.T. Trial,
6/15/21, at 34, 37-38, 40-43, 45; Commonwealth Ex. 2.
The encounter between Victim and Appellant was captured on Jake’s
Bar’s video surveillance system. Trial Court Opinion, 12/13/21, at 2;
Commonwealth Ex. 2. After Appellant and the people that he was with left,
Victim spoke to the bouncer at Jake’s bar and told him that she had been
inappropriately touched. N.T. Trial, 6/14/21, at 98; N.T. Trial, 6/15/21, at
134. Two days after the incident, Victim reported the assault to the West
Chester police. Trial Court Opinion, 12/13/21, at 2.
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Appellant was arrested and charged with attempt to commit aggravated
indecent assault and indecent assault. Between May 11, 2021 and May 20,
2021, Appellant filed several pretrial motions, including a motion in limine to
admit statements that the Victim made to Detective Collins of the West
Chester police concerning prior instances where she had been sexually
assaulted by others and a motion to suppress statements made by Appellant.
On June 7, 2021, Appellant filed a motion to amend his motion to admit
Victim’s statements to also seek admission of a statement that she made to
the bouncer at Jake’s Bar that she had been inappropriately touched before.
In his motions to admit Victim’s statements, Appellant contended that the
statements were relevant to challenge Victim’s credibility and that the Rape
Shield Law2 did not bar their admission. On May 24, 2021, the Commonwealth
filed a motion to amend the information to add a charge of aggravated
indecent assault.
On June 7, 2021, following two hearings, the trial court entered an Order
and Opinion in which it denied Appellant’s motion in limine to admit
statements that the Victim made to Detective Collins and granted both
Appellant’s motion to suppress and the Commonwealth’s motion to amend the
information. Trial Court Opinion and Order, 6/7/21, at 4-11. The trial court
also subsequently denied Appellant’s motion in limine to admit Victim’s
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2 18 Pa.C.S. § 3104.
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statement to the bouncer. N.T. Trial, 6/14/21, at 15-16; N.T. Trial, 6/15/21,
at 49-50.
Appellant proceeded to a jury trial on June 14, 2021. At trial, Victim
testified concerning the assault and the video of the encounter between Victim
and Appellant was admitted in evidence and played to the jury. Victim
testified that after she and Appellant had played two rounds of shuffleboard
without incident and they began playing again after a break, Appellant put his
hand on her rear end and when she bent over to shoot the shuffleboard quoit,
she felt Appellant put his hand up under her skirt and rub her vagina over her
underwear. N.T. Trial, 6/14/21, at 87-90; N.T. Trial, 6/15/21, at 33, 43.
Victim testified that Appellant later pulled her to him and put his hands on her
breasts and that she told him to stop and pushed his hands off her breasts.
N.T. Trial, 6/14/21, at 91-92; N.T. Trial, 6/15/21, at 34. Victim testified that
after she removed Appellant’s hands when she bent over again to take her
turn, Appellant put his hand up her skirt, moved her underwear aside and
attempted to put his fingers in her vagina. N.T. Trial, 6/14/21, at 90-93; N.T.
Trial, 6/15/21, at 33, 42-45. Victim testified that she then walked to the
bathroom to compose herself and that when she came back out, she told
Appellant that what he did was inappropriate and went back to her seat at the
bar. N.T. Trial, 6/14/21, at 93-94; N.T. Trial, 6/15/21, at 46. Victim testified
that Appellant later came over to her while she was seated at the bar, that
she again told him that what he did was not okay, and that Appellant in
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response said “apologies” and walked away. N.T. Trial, 6/14/21, at 94-95.
Victim testified that she did not walk away when Appellant first touched her
under her skirt because she was scared and froze. N.T. Trial, 6/15/21, at 47-
48.
The video showed Appellant repeatedly putting his hand on Victim’s rear
end and reaching under her skirt four times when Appellant and Victim stood
next to each other playing shuffleboard at the same end of the shuffleboard
table. Commonwealth Ex. 2; Commonwealth Exs. 14, 18, 19, 20, 24; N.T.
Trial, 6/15/21, at 34-35. The video showed that during this portion of the
shuffleboard game, Victim generally stood at a distance from Appellant except
when she was shooting the shuffleboard quoit and that Appellant put his hand
on Victim’s rear end and under her skirt when she was near him to take her
turn. Commonwealth Ex. 2. The video later showed Appellant putting his
arms around Victim, Victim moving his arms off her breasts, and Appellant
again reaching under Victim’s skirt for the fourth time after she moved his
arms off her breasts, at which point Victim pulled her skirt away from him,
turned toward him, and walked away from the shuffleboard table toward the
restroom. Id.; Commonwealth Exs. 22, 23, 24, 25; N.T. Trial, 6/15/21, at
34-35.
The Commonwealth also called as witnesses a woman in the group that
came to Jake’s Bar with Appellant, the bouncer and bartender who were at
Jake’s Bar on the night of July 25, 2020, relatives and friends of Victim to
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whom she reported the assault that night and the next morning, and Detective
Collins, who interviewed Victim when she reported the assault to police and
conducted the investigation. The woman who came to the bar with Appellant’s
group testified that she invited Victim to played shuffleboard because she had
asked Appellant if he wanted to meet Victim and Appellant said yes. N.T.
Trial, 6/15/21, at 158-60, 192. The woman testified that she did not see
Appellant touch Victim at all, but that Victim told her as the woman was
leaving the bar later that Appellant had touched her inappropriately. Id. at
163, 166-67, 169-70, 200. The bouncer testified that he did not see anything
happen between Victim and Appellant, but that toward the end of the night,
Victim approached him at the bar and told him that the guy who had been
playing shuffleboard with her had touched her inappropriately. Id. at 209,
211-12, 218. The bartender identified Appellant as the person playing
shuffleboard with Victim, but testified that he did not see any incident between
Victim and Appellant. N.T. Trial, 6/16/21, at 14-16, 22.
Appellant called as a witness a female friend of his who arrived at Jake’s
Bar while Appellant and Victim were playing shuffleboard. This witness
testified that Appellant and Victim were flirting and that she told Appellant to
stay away from Victim. N.T. Trial, 6/16/21, at 114, 121-22. She testified,
however, that she was facing away from Appellant and Victim most of the time
and did not see any contact between them and that she characterized them
as flirting only because she saw them talking and saw Victim lean toward
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Appellant to talk to him one time. Id. at 114, 122-24. Appellant also called
five character witnesses, but did not testify in his own defense.
On June 16, 2021, the jury found Appellant guilty of attempted
aggravated indecent assault and indecent assault and not guilty of aggravated
indecent assault. N.T. Trial, 6/17/21, at 3-5; Verdict Slip. The trial court
sentenced Appellant on October 13, 2021 to 10 to 23 months’ incarceration
on the attempted aggravated indecent assault conviction and a consecutive
one year of probation on the indecent assault conviction. N.T. Sentencing at
56-58; Sentencing Sheet. In addition, the trial court imposed fines and costs
and lifetime registration pursuant to the Sexual Offender Registration and
Notification Act (SORNA)3 as a Tier III offender. N.T. Sentencing at 57-58;
Sentencing Sheet.
On October 15, 2021, Appellant filed this timely direct appeal. Appellant
presents only the following single issue for our review:
Whether the trial court abused its discretion and/or erred as a
matter of law, and thereby violated the defendant’s right of
confrontation guaranteed under the Sixth Amendment to the
United States Constitution and Article 1, Section 9 of the
Pennsylvania Constitution, by excluding on grounds of relevance
and/or the Rape Shield Law, the recorded statements of the
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342 Pa.C.S. § 9799.10, et seq. While the trial court referred to the registration
requirements as “Megan’s Law,” the registration notification requirement form
appropriately cited the requirements pursuant to SORNA and the trial court
notified Appellant of the correct registration requirements at sentencing.
Registration Notification Requirements Colloquy Form, 10/13/21; N.T.
Sentencing at 57-58. See 42 Pa.C.S. § 9799.14(d)(7), (14); 42 Pa.C.S. §
9799.15(a)(3).
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complainant made to the arresting officer and a testifying prompt
complaint witness regarding prior allegations of past sexual
assaults of the complainant, where such statements are relevant
to assess the complainant’s credibility, are relevant to bias and/or
a motive to fabricate, and are relevant to how the complainant
reacted to the alleged indecent contact?
Appellant’s Brief at 5. Appellant has not raised any issue in this appeal
concerning any aspect of his sentence.4
A trial court’s rulings regarding the admissibility of evidence may be
reversed only where an abuse of discretion is shown. Commonwealth v.
Rogers, 250 A.3d 1209, 1215 (Pa. 2021); Commonwealth v. L.N., 787 A.2d
1064, 1068 (Pa. Super. 2001). Misapplication or overriding of the law
constitutes an abuse of discretion. Rogers, 250 A.3d at 1215;
Commonwealth v. Lowmiller, 257 A.3d 758, 763 (Pa. Super. 2021).
Whether evidence was properly excluded under the Rape Shield Law is an
issue of law as to which our review is de novo and plenary. Rogers, 250 A.3d
at 1215.
The Rape Shield Law provides that
[e]vidence of specific instances of the alleged victim’s past
sexual conduct, past sexual victimization, allegations of past
sexual victimization, opinion evidence of the alleged victim’s
past sexual conduct, and reputation evidence of the alleged
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4 We note that challenges to the constitutionality of lifetime SORNA
registration are challenges to the legality of sentence and may therefore be
raised by a defendant for the first time on appeal. Commonwealth v.
Thorne, 276 A.3d 1192 (Pa. 2022). Appellant, however, has not asked this
Court to rule on the constitutionality of his lifetime SORNA registration or
requested any remand for him to seek a hearing to introduce evidence
supporting a challenge his lifetime SORNA registration in accordance with
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020).
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victim’s past sexual conduct shall not be admissible in
prosecutions of any offense listed in subsection (c) 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.
18 Pa.C.S. § 3104(a) (emphasis added). The Rape Shield Law applied to
Appellant’s trial, as Appellant was charged with the offenses of aggravated
indecent assault, attempt to commit aggravated indecent assault, and
indecent assault. 18 Pa.C.S. § 3104(c).
The statements made by Victim to Detective Collins that Appellant
sought to admit in evidence and that the trial court excluded were statements
that she had been sexually assaulted and groped previously and had been
raped three times, and that with respect to the prior rapes,
The first time, I never – I didn’t do anything, because my friend like kind
of shamed me for it. The second time I don’t – I don’t know what
happened. And the third time I was in California and they couldn’t do
anything for me either. So no. I’ve never had any kind of like justice
for the shit that’s been done to me.
N.T. Motion in Limine, 6/2/21, at 68-71. The other evidence that Appellant
sought to admit and that the trial court excluded was a statement by the
bouncer that when Victim told him on the night of the incident that she had
been inappropriately touched, she also said that “something like this had
happened” to her before at a bar in West Chester. Defendant’s Motion to
Amend Previously Filed Motion in Limine to Include Complainant’s Statements
to Patrick Matta ¶¶5, 8. These statements to Detective Collins and the
bouncer are all evidence to which the Rape Shield Law applies, as they are
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“[e]vidence of specific instances of the alleged victim’s … past sexual
victimization [and] allegations of past sexual victimization,” and do not fall
within its express exception for past sexual conduct with the defendant, as
none of the prior incidents involved Appellant. 18 Pa.C.S. § 3104(a).
Our courts have recognized that additional exceptions to the Rape Shield
Law are permitted where necessary to prevent violation of the defendant’s
right to cross-examine witnesses under the confrontation clauses of the Sixth
Amendment to the United States Constitution and Article 1, Section 9 of the
Pennsylvania Constitution. Rogers, 250 A.3d at 1216-18; Commonwealth
v. Fernsler, 715 A.2d 435, 439 (Pa. Super. 1998); Commonwealth v. Guy,
686 A.2d 397, 400 (Pa. Super. 1996). Evidence of the alleged victim’s sexual
history has thus been held admissible where it shows that the alleged victim
had a bias or hostility toward the defendant or a motive to fabricate the
allegations, Rogers, 250 A.3d at 1217-18; Fernsler, 715 A.2d at 440, or
where the evidence is statement by the alleged victim that directly contradicts
her accusation against the defendant. Commonwealth v. K.S.F., 102 A.3d
480, 482–86 (Pa. Super. 2014) (statement by victim that she has never had
sex made subsequent to the sexual assaults of which she accused defendant
admissible notwithstanding Rape Shield Law).
Such judicial exceptions to the Rape Shield Law do not, however, permit
admission of sexual history evidence not involving the defendant simply
because the defendant feels that such evidence will provide helpful cross-
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examination. The Sixth Amendment to the United States Constitution and
Article 1, Section 9 protect the defendant’s right to reasonable cross-
examination, “not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Rogers, 250 A.3d at 1216
(quoting United States v. Owens, 484 U.S. 554 (1988)). To determine
whether evidence subject to the Rape Shield Law may be admitted to
challenge credibility, the court is required to balance the following factors: 1)
whether the 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. Commonwealth v. Jerdon, 229 A.3d
278, 285-286 (Pa. Super. 2019); K.S.F., 102 A.3d at 483–84;
Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super. 1985) (en banc).
Appellant argues that the trial court erred in excluding Victim’s
statements because they were relevant to show that Victim harbored a bias
against Appellant and had a motive to fabricate the allegations against him
and that the probative value of these statements to show bias or motive to
fabricate outweighed the prejudicial effect of admitting such evidence.5 We
do not agree.
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5 Although Appellant refers briefly the issue of how Victim reacted to his
assaults in his Statement of the Question Involved, Appellant’s Brief at 5,
Appellant does not contend anywhere in the argument section of his brief that
(Footnote Continued Next Page)
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As the trial court correctly held, Trial Court Opinion and Order, 6/7/21,
at 7-9; Trial Court Opinion, 12/13/21, at 3-4, Victim’s statements concerning
the prior assaults could not give the jury reason to believe that Victim
harbored a bias against Appellant or had any motive to fabricate charges
against him. Cases where we have held that sexual history evidence may be
admissible to show bias or motive to fabricate have involved evidence that
supported an inference that the alleged victim had a specific bias against the
defendant because the defendant had interfered with a sexual relationship
between her and a third party shortly before she made the accusation,
Commonwealth v. Palmore, 195 A.3d 291, 294-99 (Pa. Super. 2018);
Black, 487 A.2d at 398-99, evidence that the alleged victim threatened
retaliation for reporting her sexual relationship, Commonwealth v.
Northrip, 945 A.2d 198, 204-05 (Pa. Super. 2008), or evidence that the
alleged victim had been charged with misconduct and had reason to make the
accusations to deflect or obtain favorable treatment on those charges.
Commonwealth v. Ruggiano, 14 A.3d 844, 846-49 (Pa. Super. 2010),
vacated on other grounds, 26 A.3d 473 (Pa. 2011); Fernsler, 715 A.2d at
440; Commonwealth v. Eck, 605 A.2d 1248, 1254-55 (Pa. Super. 1992).
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Victim’s statements should have been admitted because they were relevant
to the jury’s evaluation of how Victim reacted and instead argues only that
her statements were relevant to show bias or motive to fabricate.
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Here, Victim’s statements did not contain any threat of retaliation and
there were no charges or misconduct allegations against Victim that could
provide any motive to fabricate accusations of sexual assault. Moreover, the
prior assaults were by third parties and there is no evidence that they had any
connection to Appellant or the events of July 25, 2020 at all. Those assaults
therefore could provide no basis to infer that Victim had any bias against or
hostility toward Appellant or reason to make false accusations against him.
The fact that a sexual assault complainant has been a victim of sexual assaults
by persons other than the defendant creates no logical inference that she has
a motive to fabricate accusations against the defendant and has no probative
value with respect to her credibility or the defendant’s guilt or innocence.
L.N., 787 A.2d at 1069; Commonwealth v. Boyles, 595 A.2d 1180, 1185-
87 (Pa. Super. 1991); Commonwealth v. Salazar, No. 735 EDA 2020, 736
EDA 2020, 737 EDA 2020, at 8-10 (Pa. Super. filed Oct. 1, 2021) (unpublished
memorandum).
Indeed, even if Appellant had asserted that Victim had falsely accused
others of sexually assaulting her, that evidence could not be introduced to
attack her credibility. Evidence that a witness has made false statements or
accusations on other occasions is not admissible to impeach the witness’s
credibility. Pa.R.E. 608(b)(1) (“the character of a witness for truthfulness may
not be attacked or supported by cross-examination or extrinsic evidence
concerning specific instances of the witness’ conduct” other than criminal
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convictions bearing on credibility); Commonwealth v. Golphin, 161 A.3d
1009, 1026-27 (Pa. Super. 2017); Commonwealth v. Minich, 4 A.3d 1063,
1072-73 (Pa. Super. 2010).6
Appellant has not shown that the statements that the trial court
excluded contain anything else that bears adversely on Victim’s credibility or
is exculpatory. Appellant does not contend that the excluded statements were
inconsistent with or contradicted Victim’s testimony at trial. Contrary to
Appellant’s conclusory assertions, Victim’s statement that “I’ve never had any
kind of like justice for the shit that’s been done to me” does not support a
reasonable inference that she had any motivation to make accusations against
Appellant that she did not believe to be true, as there is no evidence that any
of the past wrongs for which she felt that she did not get justice in any way
involved Appellant. Rather, such a statement suggests only an explanation
for her willingness to report what she believed happened to her and to persist
with criminal charges despite the ordeal of a criminal prosecution and trial.
Moreover, even if Victim’s statements had some minor probative value,
it would be outweighed by the prejudicial effect of admitting the statements.
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6 Commonwealth v. Schley, 136 A.3d 511 (Pa. Super. 2016) is not to the
contrary. In Schley, the evidence of prior false accusations was admissible
not to impeach the victim’s testimony but to show that the defendant had
reason to disbelieve the victim’s report of sexual abuse because the defendant
knew of the past false accusations and that the defendant therefore lacked
the mens rea to support a conviction for endangering the welfare of a child.
Id. at 518.
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The purpose of the Rape Shield Law is to prevent a sexual assault trial from
shifting its focus from the culpability of the accused and degenerating into an
attack on the victim’s character. Rogers, 250 A.3d at 1215-16; Jerdon, 229
A.3d at 285. Putting before a jury the fact that a victim has been sexually
assaulted by others on multiple occasions would invite the jury to blame the
victim for putting herself in positions where she is vulnerable to assault, rather
than properly deciding the case on the evidence of the crime with which the
defendant is charged.
For the foregoing reasons, we conclude that the trial court did not
commit any error of law or abuse of discretion in excluding Victim’s statements
concerning prior sexual assaults. Because Appellant’s sole issue in this appeal
is without merit, we affirmed Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2022
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