Commonwealth v. Jones , 826 A.2d 900 ( 2003 )

HUDOCK, J.

¶ 1 This is an appeal from an order that partially granted and partially denied the Commonwealth’s motion in limine.¹ We reverse in part.

¶ 2 Robert Booker Jones (Appellee) was charged with one count each of rape, involuntary deviate sexual intercourse and aggravated assault.² The charges stem from an incident that allegedly occurred on December 16, 1999. On October 4, 2000, the trial court convened a hearing to consider several pretrial issues. On that date, the Commonwealth moved to amend the information to add charges of criminal attempt and simple assault. The parties stipulated to the DNA test result report. A discussion followed concerning Appellee’s alleged prior sexual activity with the complainant. Defense counsel evinced the intention to introduce evidence of the complainant’s prior convictions for prostitution and the fact that she was on probation for prostitution at the time of the assaults alleged here.

¶ 3 Because consent is an issue in this case, the trial court ruled that evidence of Appellee’s prior sexual activity with the complainant would be admissible at trial. N.T., 10/4/00, at 7. The Commonwealth objected and the hearing was continued to allow further investigation and so that defense counsel could prepare a written notice of intention to offer evidence of the complainant’s prior sexual conduct. On October 10, 2000, counsel filed a notice pursuant to subsection (b) of Pennsylvania’s Rape Shield Law, 18 Pa.C.S.A. section 3104. (The provision in question is sometimes referred to as the Rape Shield Statute.)

¶ 4 The trial court conducted a two-part hearing on October 11-12, 2000. Appel-lee’s counsel explained that the defense theory is that the complainant is a prostitute and that the acts underlying the charges against Appellee occurred in the course of voluntary sexual activity for hire. The Commonwealth moved to exclude all evidence of prostitution. The trial court ruled that the complainant’s prior sexual history with Appellee was admissible but evidence of her sexual conduct with third parties prior to the alleged rape must be excluded. Thus, the complainant’s prostitution convictions prior to the date of the alleged assault were ruled inadmissible. But the trial court determined that one of her convictions was predicated on acts that occurred aftér the rape alleged against Appellee, and that this would be admissible at trial even though it involved a third party.

¶ 5 The trial court acknowledged that women in the complainant’s position are very vulnerable to attack. N.T., 10/12/00, at 10. The trial court explicitly stated that an allegation of prostitution is not a defense to a rape charge. Id. But the trial court also pointed out that the necessity of protecting the rights of the complainant must be balanced against the constitutional mandate that a defendant is entitled to a fair trial. Id. at 11.

¶ 6 The prosecutor immediately informed the trial court the evidentiary ruling posed a “substantial handicap” and stated that an interlocutory appeal would be taken as of right. However, the prosecutor also asked the trial court to certify the matter as a controlling question of law on which substantial grounds exist for a difference of opinion. The trial court agreed and Appellee did not object. Id. at 14. On October 27, 2000, the trial court certified that its evidentiary ruling implicates a controlling question of law as to which there exists “substantial grounds for difference of opinion.” Trial Court Order, 10/27/00. The trial court indicated an immediate appeal “may materially advance the ultimate termination” of the matter. Id. Therefore, the trial court stayed the proceedings against Appellee and granted the Commonwealth permission to appeal the adverse pre-trial ruling. Id.

¶ 7 On November 1, 2000, the Commonwealth filed its timely notice of appeal. In addition to its petition seeking a permissive appeal under section 702(b) of Title 42, the Commonwealth also filed a certification pursuant to Rule of Appellate Procedure 311(d) stating that the interlocutory appeal was taken as of right, in good faith, from a trial court ruling that substantially handicaps and/or terminates its prosecution of Appellee. See Certification, 11/1/00. The trial court entered an order requiring a Rule 1925(b) statement to be filed and the Commonwealth complied. We dismissed the Commonwealth’s petition for permission to appeal stating “the validity of the current appeal in this case is not affected by the order.” Order, 12/19/00. The appeal subsequently was certified for argument en banc to address the question of whether this Court has jurisdiction pursuant to Rule 311(d).

¶ 8 The issues presented are: (1) whether the Superior Court has jurisdiction over the appeal; and (2) whether the trial court erred in ruling that the complainant’s conviction for prostitution is admissible when that conviction is predicated on acts committed with a person other than Appellee after the alleged rape. As noted, the trial court explicitly found that its ruling on the Commonwealth’s motion in limine substantially handicaps the prosecution of this case. N.T., 12/12/00, at 14. Furthermore, Appellee does not claim that the Commonwealth has proceeded in bad faith or that this appeal is frivolous. Thus, the question of whether the Commonwealth has, in fact, proceeded in good faith has not been raised and is not before us.

¶ 9 A challenge to the authority of an appellate court to conduct review of a pre-trial order is a jurisdictional matter. Commonwealth v. Rosario, 419 Pa.Super. 481, 615 A.2d 740, 742 (1992), aff'd, 538 Pa. 400, 648 A.2d 1172 (1994). The Commonwealth contends that Rule of Appellate Procedure 311(d) confers jurisdiction over an appeal from an interlocutory pre-trial order which denies a motion in limine so long as the prosecutor is prepared to certify that the order substantially handicaps or terminates the prosecution. Appellee counters that Rule 311(d) only permits such appeals when the trial court order excludes Commonwealth evidence. The Commonwealth does not claim the Rule authorizes, in all possible instances, an automatic pre-trial interlocutory appeal at the sole discretion of the prosecutor. Thus, we need not resolve that question as it is not before us.

¶ 10 The Rule itself states that,

In a criminal case, under circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa.R.A.P. 311(d). The Rule does not explicitly limit the Commonwealth’s right of interlocutory appeal to any particular class of pre-trial orders. Rather, it indicates that the Commonwealth may proceed “under circumstances provided by law.” Id. The Commonwealth acknowledges that the body of case law decided both before the Rule was promulgated and after inception of the Rule emanates from instances in which a trial court suppressed evidence favorable to the prosecution. However, the Commonwealth contends this is a distinction without a difference in view of the underlying rationale for permitting the prosecution to take an interlocutory appeal as of right from an adverse suppression ruling.

¶ 11 The parties do not dispute the Commonwealth’s right to appeal the grant of a pre-trial suppression motion. They agree, as they must, that the Commonwealth’s certification under Rule 311(d), in and of itself, provides an absolute right to appeal from an adverse pre-trial suppression ruling. See Commonwealth v. Pitts, 740 A.2d 726, 732 (Pa.Super.1999) (citing cases). Indeed, our Supreme Court has explained that the entire purpose of amending Rule 311 to add subsection (d) was to “permit an interlocutory appeal as a matter of right to the Commonwealth in instances where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution.” Commonwealth v. Rosario, 538 Pa. 400, 404, n. 3, 648 A.2d 1172, 1174 n. 3 (1994).

¶ 12 It is clear from the context in which the above statement was made that the Supreme Court’s attention was focused on the effect of a pre-trial order granting suppression. See id. (citing cases). Nevertheless, our Supreme Court subsequently extended the reasoning of Rosario and has held that the Commonwealth may appeal a pre-trial order granting a motion in limine that excludes evidence and has the effect of terminating or substantially handicapping the prosecution. Commonwealth v. Matis, 551 Pa. 220, 231, 710 A.2d 12, 17 (1998). Matis relies on an earlier Supreme Court determination that no fundamental distinction can be made between a motion to suppress evidence and a motion in limine concerning the admissibility of evidence:

There is no-essential difference between suppression rulings and rulings on motions in limine to admit or exclude evidence. In both cases, a pretrial ruling is handed down which admits or excludes evidence at trial, and in both cases, once a jury is sworn, the Commonwealth may not appeal from an adverse ruling. That suppression motions are always of constitutional dimension and motions in limine are only sometimes of constitutional dimension is of no import, for in both cases, without an immediate right of review, the Commonwealth’s case may be so hampered that the Commonwealth may be unable to proceed.

Commonwealth v. Gordon, 543 Pa. 513, 517, 673 A.2d 866, 868 (1996).

¶ 13 Gordon originated as a Commonwealth appeal from a pre-trial order that prevented the prosecution from adducing certain evidence. The procedural posture of Gordon, although stemming from an order entered pursuant to a motion in limine, was in essence the same as an appeal from an adverse suppression ruling since the Commonwealth sought to include evidence the trial court had determined must be excluded. The present appeal reverses the above situation in that the trial court’s ruling on the motion in limine has an inclusory rather than exclusory effect.

¶ 14 The Gordon Court explicitly acknowledged that whether the trial court has ruled on a suppression motion or a motion in limine, the effect on the case is identical: the trial court has either admitted or excluded evidence. Id. Moreover, the Supreme Court’s rationale was not grounded on any distinction that might exist between the inclusion of evidence and its exclusion. Gordon turns on the inescapable fact that, once a jury is sworn, the Commonwealth may not appeal an adverse ruling, whatever form that ruling takes. Id., 543 Pa. at 517, 673 A.2d at 868.

¶ 15 The Double Jeopardy Clause of the United States Constitution bars a second prosecution for the same offense after either an acquittal or a conviction. Commonwealth v. McGee, 560 Pa. 324, 327, 744 A.2d 754, 756 (2000). “Double jeopardy protections afforded by the United States and Pennsylvania constitutions are coextensive and prohibit repeated prosecutions for the same offense.” Commonwealth v. Lively, 530 Pa. 464, 467, 610 A.2d 7, 8 (1992). Our statutory law explicitly precludes the Commonwealth from trying a defendant a second time if a former prosecution resulted in either acquittal or conviction. Commonwealth v. Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760 (1995) (citing 18 Pa.C.S.A. § 110). Thus, double jeopardy considerations preclude appeal if the Commonwealth loses. If it wins, it still may not appeal because it is not an aggrieved party. In contrast, a defendant convicted under an erroneous pre-trial ruling retains the opportunity to cure the defect on appeal.

¶ 16 The Gordon Court addressed the balance between the constitutional interests implicated when the Commonwealth is permitted to take an interlocutory appeal from an adverse pre-trial suppression order:

Concerning speedy trial rights, while it is obvious that appeal of a pretrial order will cause a delay in the trial, the issue is not whether there is a delay, but the weight of the competing interests. Here, the competing interests are promptitude versus a considered determination of whether the Commonwealth has had a fair opportunity to put on its best case. In our view, to preclude an immediate review of a pretrial ruling that would terminate or substantially handicap the Commonwealth’s case would be a harm that far outweighs the benefit to the defendant of securing a more speedy trial.

Gordon, 543 Pa. at 518, 673 A.2d at 868 (emphasis added).

¶ 17 Our Supreme Court originally authorized the Commonwealth to take interlocutory appeals from pre-trial suppression orders because of the effective finality of such rulings:

From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution or (b) while the order of suppression will not result in a termination or conclusion of the prosecution, it will result in a prosecution wherein the Commonwealth is handicapped because it cannot present all its available evidence.

Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304, 308 (1963). The Court further explained that unless the prosecution is afforded the right of appeal after entry of an adverse suppression order, the Commonwealth will be completely deprived of any opportunity ever to secure an appellate court evaluation of the validity of that pre-trial order. Id.

The evidence suppressed may well mark the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents.

Id.

¶ 18 The Bosurgi Court did not phrase its rationale so narrowly as to confine the impact of its decision solely to the review of adverse suppression orders. ' Rather, the Court expressed its decision in terms of the situation that results when the prosecution is deprived of the right to use all of the evidence available against the defendant. Thus, Bosurgi addresses the Commonwealth’s need to proceed to trial with the proper quantum of admissible evidence. Whether that quantum has been reduced by an order granting suppression or enhanced by the denial of a prosecutor’s pre-trial motion in limine, the Commonwealth’s faces the same problem: if the defendant is acquitted, appellate review of the trial court’s order can never be attained.

¶ 19 Our Supreme Court’s decisions in Bosurgi and its progeny are based on the fundamental fact that if the Commonwealth has no opportunity to obtain appellate review of an adverse pre-trial interlocutory order impheating double jeopardy concerns, such review will never occur because the Commonwealth cannot try a defendant for a second time if the first prosecution results in an acquittal. Indeed, this premise is so basic that our Supreme Court has not limited the principle originally articulated in Bosurgi only to pre-trial evidentiary rulings. See, e.g., Matis, supra (permitting the Commonwealth to appeal, on double jeopardy grounds, from an order denying a continuance to secure a necessary witness); Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995) (authorizing the Commonwealth to appeal from an order transferring a case from the criminal division to the juvenile division because double jeopardy attaches at the initiation of a juvenile adjudicatory hearing).³

¶ 20 The trial court order entered in this case denied the Commonwealth’s motion in limine and will permit the defense to adduce certain evidence at trial to which the prosecutor objects. Should the defense secure an acquittal, whether that acquittal is grounded on this evidence or based on some other consideration, double jeopardy will prevent the Commonwealth from ever obtaining appellate review of the trial court’s order. For this reason, we conclude that Bosurgi and its progeny require us to address the merits of the Commonwealth’s appeal from the denial of its motion in limine as duly certified under Rule 311(d).

¶ 21 The trial court ruled the complainant’s convictions for prostitution inadmissible insofar as they stem from acts that occurred with third parties before the events underlying this appeal. The trial court additionally held that evidence concerning the complainant’s sexual history with Appellee is admissible. We make no comment upon the propriety of the first ruling because that issue is not ripe for review and is not before us at this time. The Commonwealth has not challenged the second determination and it is therefore not a subject for our consideration.

¶ 22 The trial court also determined that the complainant’s conviction for prostitution predicated on acts that occurred with a third party after the assaults alleged here will be admissible at Appellee’s trial. The Commonwealth concedes that the complainant’s probationary status (without identifying the charges for which she is on probation), could be explored at trial insofar as this is relevant to show bias towards the prosecution. Commonwealth’s Brief at 12. However, the Commonwealth challenges the trial court’s decision to admit evidence that the complainant was convicted of prostitution, based on acts that occurred one month after the events at issue here, and seeks to preclude this information from being presented to the jury.

¶ 28 The admission of evidence is committed to the sound discretion of the trial court. Commonwealth v. Chamberlain, 557 Pa. 34, 39, 731 A.2d 593, 595 (1999).

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. Spiewak, 533 Pa. 1, 8 n. 4, 617 A.2d 696, 699 n. 4 (1992) (citation omitted). A defendant has a fundamental right to present evidence provided it is relevant and not subject to exclusion under any established evidentiary rule. Commonwealth v. McGowan, 535 Pa. 292, 294-95, 635 A.2d 113, 115 (1993). Even so, relevant evidence is admissible only if its probative value outweighs its prejudicial impact. Commonwealth v. Robinson, 554 Pa. 293, 305, 721 A.2d 344, 350 (1998).

¶ 24 A trial judge should take care that nothing relevant is excluded so long as its admission will not unduly distract the attention of the jury from its main inquiry. Commonwealth v. Baez, 554 Pa. 66, 93, 720 A.2d 711, 724 (1998). The trial judge must determine whether evidence which, although logically relevant on the ultimate issue, may nevertheless be excluded because its general effect on the trial will be to confuse the jury by distracting its attention away from the jury’s primary concern to collateral issues. Id. Otherwise admissible evidence is excludable if its prejudicial effect outweighs its probative value. Commonwealth v. Johnson, 556 Pa. 216, 242, 727 A.2d 1089, 1102 (1999).

¶ 25 Instantly, the trial court applied the Rape Shield Law to exclude evidence of the Complainant’s sexual activity with third parties prior to the events underlying this appeal. However, the trial court concluded the jury was entitled to hear that the complainant was convicted of prostitution for acts that occurred a month after Appellee’s arrest. In so holding, the trial judge stated that the conviction was “circumstantial evidence of whatever value” that a woman who has been raped in December is unlikely to engage in prostitution in January[.]” N.T., 12/12/00, at 12-13.

¶26 In pertinent part, the Rape Shield Law provides as follows:

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 [Chapter 31 of the Crimes Code] 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.A. § 3104(a) (emphasis added). On its face, the Rape Shield Law might seem to apply only to sexual activity that occurred before, and not after, an alleged sexual assault. However, the statute does not explicitly so state. We believe the statute must be read more broadly than this and that “past sexual conduct” refers to the complainant’s entire sexual history that has occurred before trial.

¶27 Rape shield laws in general are legislative recognitions of the minimal probative value of a complainant’s sexual history and are designed to prohibit “the travesty of presenting a noisome stream of defense witnesses testifying to the sexual propensities” of the complaining witness. Commonwealth v. Majorana, 503 Pa. 602, 609, 470 A.2d 80, 84 (1983). Pennsylvania designed its statute to rectify these abuses. Id. Our Supreme Court has explained that the specific purpose of the Pennsylvania Rape Shield Law is to prevent a sexual assault trial from degenerating into an attack upon the collateral issue of the complainant’s reputation rather than focusing on the relevant legal issues and the question of whether the events alleged by the complainant against the defendant actually occurred. Commonwealth v. Berkowitz, 537 Pa. 143, 151, 641 A.2d 1161, 1165 (1994). This purpose is not fostered by limiting application of our Rape Shield Law to sexual conduct that occurred before the incident giving rise to criminal charges but allowing a defendant to besmirch a complainant with accusation and innuendo based on her conduct after an alleged rape. Specifically, the Rape Shield Law’s purpose would not be served in the instant case by permitting Appellee to explore any of the complainant’s prostitution convictions solely to show she has a propensity to engage in sexual activity for hire. See Baez, 554 Pa. at 93, 720 A.2d at 724 (holding logically relevant evidence must be excluded if its effect will be to confuse the jury by distracting attention away from the primary concern to collateral issues); Commonwealth v. McMaster, 446 Pa.Super. 261, 666 A.2d 724, 729 (1995) (ruling exclusion of otherwise relevant evidence is warranted if it may confuse, mislead, or prejudice the jury or cause a decision based upon something other than the legal propositions relevant to the case).

¶28 Our law recognizes that the “prior bad acts” of a criminal defendant are not generally admissible to show bad character or propensity to commit crimes. Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284, 300 (1998). This is so because proof of the commission of one offense is not generally proof of the commission of another. Id. By analogy, that the complainant was convicted of prostitution with someone other than Appellee is no more probative of the allegation that she prostituted herself with Appellee than it would be if she were on trial for the crime of prostitution.

¶ 29 This evidence does not exculpate Appellee. It is not probative of the complainant’s willingness to commit sexual acts with Appellee, for hire or for any other reason. In particular, the complainant’s conviction for acts with a third party has no bearing on whether the complainant feared Appellee after the alleged attack. Whatever the motivation for the complainant’s conduct might be, evidence of her sexual history with a man other than Appellee after the alleged rape is non-probative of her inclination to consent to such activity with Appellee on December 16, 1999 — or at any other time.

¶ 30 Our application of the Rape Shield Law to bar admission of evidence concerning the complainant’s convictions for prostitution is limited to the facts that have been developed thus far in this case. It is possible that a situation may arise during trial that would place this evidence within some recognized exception to the Rape Shield Law. We decline to speculate on such possibilities. As the trial unfolds, it will be up to the sound discretion of the trial court to rule on evidentiary questions in accordance with Pennsylvania law.

¶ 31 For these reasons, we reverse that portion of the trial court’s pre-trial order which denied the Commonwealth’s motion in limine to exclude evidence of the complainant’s conviction for prostitution based on events that occurred after the events underlying the charges filed against Appel-lee. As already noted, we make no pronouncement concerning the propriety of the remainder of the pre-trial order.

¶ 32 Order reversed in part. The case is remanded for trial. Superior Court jurisdiction relinquished.

¶ 33 JOYCE, J., STEVENS, J., KLEIN, J. and GRACI, J. join.

¶ 34 GRACI, J. files a Concurring Statement, joined by STEVENS, J.

¶ 35 BENDER, J. files a Concurring and Dissenting Opinion.

¶ 36 DEL SOLE, P.J. files a Dissenting Opinion, joined by McEWEN, P.J.E. and TODD, J.

1 . The Commonwealth has certified that the order in question substantially handicaps the prosecution pursuant to Rule of Appellate Procedure 311(d).

2 . 18 Pa.C.S.A. §§ 3121, 3123, and 2702(a)(1), respectively.

3 . As the Bosurgi Court noted, the Pennsylvania Supreme Court has consistently upheld the right of the Commonwealth to lodge pretrial appeals in criminal cases so long as the appeal involves a question of law and not of fact. 411 Pa. at 61-62, 190 A.2d at 307. The determinative factor in whether to permit the Commonwealth to take an interlocutory pretrial appeal focuses on the question of whether denial of the right to such review harms the Commonwealth. Id. at 63, 190 A.2d at 308.

In our zeal to protect and preserve for the accused every constitutional right to which he is entitled we too often forget and neglect to preserve the rights of society which, too, are entitled to consideration.

Id. at 63-64, 190 A.2d at 308.

In Gordon, our Supreme Court stated that interlocutory appeals in a criminal case implicate competing interests. Gordon, 543 Pa. at 518, 673 A.2d at 868. The question is not whether a delay is caused by an interlocutory appeal, the question is what weight must be given to the defendant's interest in prompt settlement of the matter versus the people's interest in achieving justice by affording the Commonwealth a fair opportunity to put on its best case. Id. That a defendant in a criminal case has the right to a speedy trial under both the Pennsylvania and the United States Constitutions is beyond argument. However, there is 'no statutory or case law that proclaims the existence of a corresponding "right" to be free of interlocutory appeals.

When the Commonwealth pursues an interlocutory appeal that implicates the defendant's rights under Rule of Criminal Procedure 600, the appropriate response is for the defendant to file a motion pursuant to that Rule. The trial court may then determine whether the interlocutory appeal has been taken in defiance of the accused's constitutionally mandated speedy trial rights. If the trial court finds that the Commonwealth has proceeded without regard to the requirements of "due diligence,” then the court may grant the appropriate relief.

We cannot agree with Judge Bender’s impassioned dissent that this appeal and the companion appeal in Commonwealth v. Shearer, No. 787 WDA 2001, demonstrate that the exercise of certification by the Commonwealth has lost touch with either the language of Rule of Appellate Procedure 311 or with the underlying purpose of the Rule. In the present case, Appellee has not indicated in any manner that he believes his speedy trial rights have been compromised by the Commonwealth’s interlocutory appeal. He has not claimed that the Commonwealth proceeded in bad faith nor has he challenged this appeal as frivolous. Indeed, at the hearing conducted on the suppression motion, the trial court explicitly found that Appellee consented to the Commonwealth's interlocutory appeal. N.T., 10/12/00, at 14. In Shearer, counsel for the defendant affirmatively asserted during oral argument before this Court that his client had waived his Rule 600 rights, apparently not being concerned about his client’s speedy trial rights being compromised by the Commonwealth’s interlocutory appeal. Thus, in this case and in Shearer, the issue of speedy trial rights has been waived. While we cannot discount the possibility that some prosecutor might at some future date abrogate his duty to protect the accused’s constitutional rights, we cannot agree that the prosecutors in this case or in Shearer have done so.