Com. v. Rosser, W. , 135 A.3d 1077 ( 2016 )

J-E03006-15
2016 Pa. Super. 51
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WANYA ROSSER,
Appellant No. 3258 EDA 2013
Appeal from the Judgment of Sentence June 4, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008571-2010
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.
OPINION BY JENKINS, J.: FILED FEBRUARY 26, 2016
Wanya Rosser was charged with raping a 19-year-old woman, S.R., as
she walked home in the early morning hours of October 16, 2010. The trial
court prohibited defense counsel from cross-examining S.R. as to whether
Rosser told her, following the assault: “I can’t see you again, we could be
friends, but I have a girlfriend.”
The principal issue in this direct appeal is whether the trial court
abused its discretion and violated Rosser’s constitutional right of
confrontation by precluding this cross-examination. Rosser has waived this
issue, and even if he preserved it for appeal, it is devoid of merit because
there is no factual basis in the record that he actually made this statement.
For these reasons, and for others articulated below, we affirm Rosser’s
judgment of sentence.
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I.
Evidence adduced during trial. The trial court’s opinion thoroughly
describes the evidence adduced against Rosser:
The instant case arises out of events that occurred in the early
morning hours of October 16, 2010, in Cheltenham, Montgomery
County, Pennsylvania. That morning, half a block away from her
house, [S.R.] was attacked, threatened, and forcibly raped by
[Rosser]. She had never met or talked to [Rosser] before he
raped her. She did not fight back because, according to her
testimony, [Rosser]’s abrupt and forceful attack and threatening
statements made her fearful for her life. Because of that fear,
she testified that she believed that the only way to survive was
to pretend to befriend her attacker rather than attempt to run
away and face even more violent consequences. She reported
the rape to her family and the police within seconds of being free
from [Rosser], and went to the hospital for a sexual assault
examination. Police were able to identify and apprehend
[Rosser] near [S.R.]’s house shortly after she reported the
incident. [Rosser] was subsequently tried and convicted for
Rape, Sexual Assault, and related offenses.
At trial, [S.R.] testified that [Rosser], a complete stranger to
her, attacked her from behind, threatened and forcibly raped her
just half a block away from her house as she walked home from
work on the morning of October 16, 2010. At the time, she was
nineteen years old, a student at the Community College of
Philadelphia, and working late shifts as a preparatory cook in the
kitchen of Sugarhouse Casino in Philadelphia. Shortly after
midnight that morning, after completing her shift, she began her
commute to her house in Cheltenham. She took the Market-
Frankford rapid transit line to the Frankford Transportation
Center, where she then took the Route 24 bus to Cheltenham.
Video surveillance footage of the Frankford Transportation
Center shows [S.R.] alone as she waited for the Route 24 bus
between 12:34 a.m. and 12:51 a.m. This video also shows
[Rosser] alone waiting at the same bus stop and standing
approximately twenty (20) feet away from [S.R.]. [S.R.]
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testified that, at the time, she was unaware of [Rosser] and his
presence at the same bus stop. She identified him in the
footage several months before trial. The only person [S.R.]
spoke to on the bus was the bus driver, to whom she said ‘hello’
and ‘good-bye.’
Next, video surveillance footage of a Wawa convenience store
shows the Route 24 bus pulling up to the Cheltenham station at
1:05 a.m., where [S.R.] stepped out of the bus alone, and
walked across the street to the Wawa. At 1:06 a.m., the footage
shows an unaccompanied [S.R.] entering the Wawa, where she
checked her bank account balance, and purchased a cup of
coffee. At 1:10 a.m., the footage shows [S.R.], still by herself,
exiting the store. [S.R.] testified that she never saw nor spoke
to [Rosser] at or near the Wawa. She had no knowledge of
[Rosser]’s existence or presence in proximity to her that night.
According to [S.R.], it was cold outside when she left the Wawa,
and she immediately began the five-to-ten-minute walk to her
house on Woodland Avenue. She walked in the middle of the
street, where her mother had told her she would be able to see
anyone approaching her if she was alone, and where she thought
she would be safer.
When she was approximately a quarter of the way down the
street where she lived, she heard quick, heavy footsteps behind
her. Before she could see who was rushing behind her, she felt
someone forcefully grab her head and place a strong and firm
arm around her throat. Having just taken a sip of her coffee,
[S.R.] choked on the liquid, and was unable to scream. As she
tried to cough the coffee out of her mouth, and in her shock, she
only managed to exclaim the words, ‘My coffee. My coffee.’ She
heard her attacker repeat, ‘Shh, you are being too loud. You are
being too loud.’
Standing directly behind her, he lifted and guided her from the
street and toward the sidewalk. He then directed her toward a
small grassy hill leading to the front entrance steps of
Preservation of the Blessed Virgin Mary (BVM) Parish School,
where [S.R.]’s family were members of the parish. As they
reached the grass, [S.R.] tripped and stumbled forward. She
caught herself on the sidewalk with one hand, held her coffee
cup with the other hand, and managed to finish coughing up the
coffee that was stuck in her throat. She told [Rosser] that she
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did not have any money. He continued to hold her by the
throat, and guide her up the small hill and across a mulch-
covered pathway until they reached a dark, secluded lawn area
between the school and an ivy-covered fence.
[S.R.] testified that by sensing the strength and firmness with
which he pressed his arm around her throat, she surmised that
he was stronger than she, so she decided not to try to fight back
for fear of a more violent consequence. She was not sure if he
had a weapon. She also felt [Rosser] relax the pressure around
her throat as she lessened her resistance and complied with his
demands. She felt that she was being overpowered physically
and that submitting to his demands was the only way to survive.
In the secluded lawn area next to the school, [Rosser]
maintained one hand around her throat, and placed her cup on
top of an air conditioner unit sticking out of the building. She
repeatedly begged him not to hurt her, and he replied that she
was being too loud, and warned her, ‘Don’t make me hurt you,’
and ‘Don’t scream.’ He then reached into the waistband of her
pants and underwear and pulled them down to right above her
knees. He pressed on her back, and guided her to bend over
and get down on all fours on the ground in front of him. [S.R.]
continued to beg him not to hurt her, and he replied that he
would only hurt her if she made him hurt her. [Rosser] then
unzipped his pants, and began to vaginally rape [S.R.] from
behind.
As the rape began, [S.R.] repeated her pleas with him not to
harm or kill her. She eventually noticed that [Rosser] began to
ease up on the amount of pressure he used to hold her. He no
longer had his arm around her neck. Instead, he held one of her
arms behind her back and he placed one arm over the arm she
had planted on the ground. At one point, [Rosser] removed his
penis from her vagina and tried to insert it in her anus. She
asked him not to do that, and he reinserted his penis in her
vagina and continued to vaginally rape her. She continued to
beg [Rosser] not to hurt her, and he finally told her, ‘I’m not
going to hurt you.’ [S.R.] then put her pinkie finger up and
asked, ‘Pinkie swear that you are not going to hurt me.’ [Rosser]
did so. [S.R.] was determined to gain [Rosser]’s trust so that he
would uphold his promise and she could get home safely. She
pretended to enjoy the rest of the rape by sitting up and leaning
into him. The rape lasted approximately three minutes. When it
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was over, and as he gathered himself, he said, ‘Maybe I should
get your number.’ She laughed out loud at the idea that the
stranger who just raped her wanted her number.
After they both stood up from the ground, she asked him, ‘How
do we end this?’ He responded that since she was so good, he
would let her see his face. [S.R.] turned around to see [Rosser]
smiling at her with big eyes. He was wearing a dark hoodie with
a brightly-colored collared shirt underneath. She introduced
herself as ‘Shannon’ and he introduced himself as ‘Wakim.’
[S.R.] testified that she believed it was in her interest to give
him truthful identification information. She was afraid that if he
somehow tried to verify the information that she would
jeopardize any goodwill she believed she had and needed in
order to survive. She then asked him if he had used a condom,
and he replied that he had not. She asked him if he was ‘clean,’
and he stated that he was. Finally, she asked him if he would
like to walk her home and he replied that he would. She
testified that she did not want to run to her house, because ‘[i]t
would look like I am running to call the cops, which I had every
intention of doing.’ She continued, ‘l knew I would get home
faster if I tried to just keep my cool as long as I could.’
As [Rosser] walked [S.R.] to her front door, he told her that he
followed her from the train because he was cold and she looked
warm. She asked him what he would have done if they had not
‘become friends,’ and he responded, ‘I would have put you to
sleep.’ He then showed her what he meant by putting his index
finger up to his throat, turning his head, and closing his eyes.
At the doorstep to [S.R.]’s house, [Rosser] pulled out his phone.
[S.R.] took this to mean that he wanted her phone number, so
she gave him her real number. [S.R.] still did not know if
[Rosser] had a weapon on him, and she believed it was safer to
give him her real contact information in case he tried to verify it
before she could get in her house. After he recorded her
number, he opened his arms to hug her, and she complied.
Before he left, he asked, ‘We are going to keep this our little
secret, right?’ to which [S.R.] responded in the affirmative.
Once inside, she locked the door, and peered through the
window to see [Rosser] walk up the street. As soon as she saw
that [Rosser] was far enough away from the house, and within
approximately five seconds of entering the house, she turned
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around and revealed to her brother, who was sitting in the living
room, that she had just been raped. Her brother immediately
instructed her to tell her father, who was sleeping upstairs.
[S.R.] began calling the police as she ran up the stairs to wake
up her father. The time was 1:28 a.m. She frantically informed
her father that she had just been raped, and that she was on the
phone with the police. While on the phone with the dispatcher,
she received a call from an unknown number. [S.R.] rightly
concluded that it was [Rosser] calling her. She informed the
dispatcher that she believed she now had her rapist’s phone
number. The police arrived at [S.R.]’s house approximately four
minutes after she called the police.
Officer Matthew Hungerford (‘Hungerford’) took [S.R.]’s
statement. At trial, Hungerford, a six-year veteran of the
Cheltenham Police Department, took the stand and testified for
the Commonwealth. He described [S.R.] as ‘very agitated’ when
he arrived. He stated that her voice was shaky and trembling,
but that she was certain of what she was saying. He recalled
that she was rattling off information about the incident so quickly
that he had to ask her to calm down so that he could record it
all. [S.R.] gave Hungerford the telephone number of the
unknown caller who called while she was on the phone with the
dispatcher, and who [S.R.] correctly guessed to be [Rosser].
Hungerford broadcasted that telephone number to police
dispatch.
While Hungerford was taking [S.R.]’s statement, Officer Michael
Friend (‘Friend’) was driving a police vehicle and looking for a
male who matched the description of the suspect from police
dispatch. At trial, Friend, a seventeen-year veteran of the
Cheltenham Police Department, testified that he had received a
dispatch report that a sexual assault occurred on Woodland
Avenue and proceeded to look for a suspect who was described
as a black male, approximately 55, with a short Afro haircut,
wearing a black hoodie, brightly-colored shirt, and blue jeans.
Friend testified that, after the flash from the dispatcher informed
him that the suspect had gone toward Old Soldier’s Road, he
drove towards Rising Sun Avenue to look for the suspect. He
explained that he proceeded in this direction because there were
businesses on that street and it would be easier for someone to
blend in with other people. When Friend pulled up to a red light
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on Rising Sun Avenue, he observed a male, later identified as
[Rosser], who fit the description of the suspect, except that
[Rosser] had removed his black hoodie. Friend explained that,
through his experience and training, he understood that a
suspect may shed clothing in an effort to alter his appearance
after a crime. [Rosser] now wore the brightly-colored shirt over
a black, long-sleeved shirt, and he was carrying a plastic
garbage bag that appeared to be filled with clothing. Friend
exited the vehicle, and obtained [Rosser]’s consent to look in the
garbage bag. [Rosser]’s black hoodie was not in the bag. At
trial, Friend stated that [Rosser]’s hoodie was not discarded in
an open area and that police never located it.
After searching the bag, Friend began to take down [Rosser]’s
information for the police report that is required whenever police
make a pedestrian stop. He called into dispatch with [Rosser]’s
information, including his telephone number. That number
matched the number that Hungerford had broadcasted to
dispatch only six minutes prior. Based on the matching physical
description and telephone number of the suspect and [Rosser],
Friend placed [Rosser] in handcuffs. Hungerford and [S.R.]
arrived at the scene where identification was made, and Friend
then transported [Rosser] to the police station.
Hungerford escorted [S.R.] to Abington Memorial Hospital, where
Dana Liskova (‘Liskova’), a sexual assault nurse examiner
(‘SANE’ nurse), conducted a sexual assault examination of
[S.R.]. At trial, Liskova was qualified as an expert in the area of
sexual assault forensic examinations. Liskova testified that in
addition to examining [S.R.], she reviewed [S.R.]’s medical
history and her account of the assault and rape. After relating
the facts, knowledge, and experience on which she was relying,
Liskova rendered her expert opinion that, within a reasonable
degree of medical certainty, [S.R.]’s injuries were consistent
with the history that [S.R.] had given her.
At trial, counsel stipulated that [Rosser] and [S.R.] had engaged
in sexual intercourse on the morning of October 16, 2010.
Trial Court Opinion, at 2-10 (citations omitted).
Trial proceedings. Rosser was charged with rape by forcible
compulsion, sexual assault, indecent assault, indecent assault by forcible
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compulsion, simple assault, recklessly endangering another person and
terroristic threats.1
There were two jury trials. The first trial ended in a mistrial when the
jury acquitted Rosser of simple assault but could not reach a verdict on the
remaining charges.
During Rosser’s first trial, defense counsel cross-examined S.R. as
follows:
[Defense counsel]: And [Rosser] told you, I can’t see you again,
we could be friends, but I have a girlfriend, didn’t he?
[S.R.]: Absolutely not.
[Assistant district attorney]: Objection, Your Honor.
The Court: All right. Sustained. That objection is sustained.
Strike that question from your deliberations. Okay?
N.T., 4/24/12, at 289-90.
The next morning, the court stated the basis for its decision:
[I]n order to ask a question on cross-examination that is not in
the facts of the case as of yet, you have to make a
representation to me if you are going to ask that question that
you are going to be able to back it up in your case, present facts
that will substantiate or at least for the jury to make a decision
whether it substantiates the question. In other words, just to
ask any question and throw anything out there that say like,
well, aren’t you weird or aren’t you this or that or haven’t you
done X, Y, Z, and it has not been introduced as - or in evidence
at that point, I’m not going to let you do it, unless you make a
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1
18 Pa.C.S. §§ 3121(a)(1), 3124.1, 3126(a)(1) & (a)(2), 2701(a)(1), 2705
and 2706(a)(1), respectively.
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representation that you can deal with it - back it up [in] your
case-in-chief.
N.T. 4/25/12, at 5.2 Defense counsel did not represent that he could
support the factual assertions of his questions with evidence. Rosser
presented no evidence to substantiate his alleged statement to S.R. Indeed,
he elected not to testify or present a defense. N.T., 4/26/12, at 111-12
(Rosser decides not to testify or present defense).
Before closing argument, defense counsel claimed that he had the
right to argue the facts implicit in his question to the jury: “I think I should
be permitted to fairly argue, you know, an alternative to the
Commonwealth’s theory of the case about consensual sex.” N.T., 4/26/12,
at 114. The court responded: “[The Commonwealth] is specifically pointing
to some … things that you told me that your client told you. I’m not going
to permit that because there … is no basis for that. It is not in evidence.”
Id.
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2
The certified record does not include the April 25, 2012 notes of testimony.
This quotation appears in the Commonwealth’s en banc brief.
Rosser, as the appellant, had the duty to ensure that we received the entire
record for review, including all necessary transcripts. See Pa.R.A.P.
1911(a); Commonwealth v. Peifer, 730 A.2d 489, 492 n.3
(Pa.Super.1999). When the appellant fails in this task, “we can take such
action as we deem appropriate, including dismissal of the issue.”
Commonwealth v. Houck, 102 A.3d 443, 457 (Pa.Super.2014). In this
case, we find that the appropriate action is to accept the quotation in the
Commonwealth’s brief as accurate.
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Prior to Rosser’s second trial, the Commonwealth moved in limine to
preclude defense counsel from questioning S.R. with regard to Rosser’s
alleged statement. Defense counsel responded:
[I] think the Commonwealth’s position is that [the statement]
essentially is hearsay. And I would just suggest to the Court
that it is not hearsay because the definition of hearsay is an out-
of-court statement offered for the truth of the matter asserted.
And that type of question is not any attempt to prove that, in
fact, [Rosser] has a girlfriend with a baby,[3] just that [the
statement] was said.
N.T., 1/14/13, at 23. The court directed that defense counsel “[cannot] ask
her any of those questions, unless you … represent to me [that] you are
going to be bringing it into evidence somehow. And I don’t think you can
represent that to me.” Id. at 25. Defense counsel answered: “I agree with
your Honor. I don’t necessarily agree with your ruling. Please note my
exception on the record.” Id. The court precluded defense counsel from
asking S.R. whether “[Rosser] during the course of your walk told you that
he had a girlfriend and a baby with that girlfriend.” Id. at 22.
Rosser elected not to testify during his second trial. The jury found
him guilty on all charges, including the simple assault charge on which he
previously had been acquitted. On June 4, 2013, the trial court sentenced
Rosser to an aggregate term of imprisonment of 6½-13 years’ imprisonment
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3
During the first trial, defense counsel did not ask S.R. whether Rosser
stated that he and his girlfriend had a baby. Our analysis below remains the
same regardless of this extra detail.
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followed by 9 years’ probation. Rosser filed timely post-sentence motions
challenging, inter alia, the weight of the evidence and the legality of his
simple assault conviction. In an order docketed on September 6, 2013, the
court granted Rosser’s motion to vacate his simple assault conviction,
resulting in reduction of his probationary sentence to 7 years’ probation.
The court denied all other post-sentence motions.
On October 8, 2013, Rosser filed a petition for leave to file a direct
appeal nunc pro tunc, alleging that he never received the September 6,
2013 order deciding his post-sentence motions. The Commonwealth did not
object to Rosser’s petition. On October 28, 2013, the trial court granted
Rosser leave to appeal nunc pro tunc within thirty days. On November 27,
2013, Rosser filed a notice of appeal.4
Appellate proceedings. Rosser filed a timely Pa.R.A.P. 1925(b)
statement in which he claimed, for the first time, that the trial court violated
his constitutional right of confrontation by granting the Commonwealth’s
motion in limine to preclude defense counsel from cross-examining S.R.
about Rosser’s statement during the walk to S.R.’s house. Pa.R.A.P.
1925(b) Statement, ¶ 2. On January 24, 2014, the trial court filed a
Pa.R.A.P. 1925(a) opinion which defended its decision to grant the
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4
Rosser purports to appeal from the trial court’s order denying his post-
sentence motions, but a direct appeal in a criminal proceeding is from the
judgment of sentence. Commonwealth v. Preacher, 827 A.2d 1235, 1236
n.1 (Pa.Super.2003). We have amended the caption accordingly.
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Commonwealth’s motion on the grounds that (1) Rosser’s statement was
inadmissible hearsay, and (2) assuming that there was a Confrontation
Clause error, such error was harmless due to the strength of the
Commonwealth’s case against Rosser. Pa.R.A.P. 1925(a) Opinion, at 15-19.
On March 16, 2015, in a 2-1 decision, a panel of this Court vacated
Rosser’s judgment of sentence and remanded for a new trial. The panel held
that Rosser’s statement was not hearsay, and that the trial court’s decision
to preclude cross-examination about Rosser’s statement to S.R. violated his
constitutional right of confrontation. Notwithstanding the evidence against
Rosser, the panel stated, “the questions regarding Rosser’s alleged
statements about his inability to have a romantic relationship with [S.R.]
because of his girlfriend and baby were crucial to Rosser’s attempts to call
[S.R.’s] credibility with the jury into question.” Commonwealth v. Rosser,
No. 3258 EDA 2013, at 8 (Pa.Super., 3/16/15).
On March 30, 2015, the Commonwealth filed a timely application for
reargument en banc. The Commonwealth did not contest the panel
majority’s conclusion that Rosser’s alleged statement was not hearsay.
Instead, the Commonwealth argued that there was no Confrontation Clause
violation because there was no proof that Rosser actually made the
statement to S.R. Stated another way, Rosser had no right to cross-
examine S.R. on a subject for which no factual foundation existed. On May
20, 2015, this Court granted the Commonwealth’s motion for en banc
review.
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II.
In his en banc brief, Rosser presents two issues, which we re-order for
purposes of disposition:
1. Did the trial court violate [Rosser’s] right to confront the
witnesses against him as guaranteed by the Sixth
Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution by granting the
Commonwealth’s objection to defense counsel’s attempt to
cross-examine the alleged victim regarding her conversation
with [Rosser] during the walk to her house[,] as such
testimony was aimed at establishing the complainant’s motive
to fabricate the allegations against [Rosser]?
2. Did the trial court abuse its discretion in denying [Rosser’s]
post-sentence motion for a new trial insofar as his convictions
for rape, sexual assault, indecent assault, indecent assault by
forcible compulsion, simple assault, recklessly endangering
another person and terroristic threats are manifestly against
the weight of the evidence presented at trial?
Brief for Appellant, at 5.
In his first argument, Rosser contends that the trial court violated his
constitutional right of confrontation by granting the Commonwealth’s motion
in limine to preclude defense counsel from cross-examining S.R. during
Rosser’s retrial about whether Rosser said, “I can’t see you again, we could
be friends, but I have a girlfriend,” while they walked home following sexual
intercourse.
The Commonwealth contends, and we agree, that Rosser has waived
this issue. “One must object to errors, improprieties or irregularities at the
earliest possible stage of the criminal ... adjudicatory process to afford the
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jurist hearing the case the first occasion to remedy the wrong and possibly
avoid an unnecessary appeal to complain of the matter.” Commonwealth
v. Strunk, 953 A.2d 577, 580 (Pa.Super.2008). “Issues not raised in the
[trial] court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a). [T]rial judges must be given an opportunity to correct
errors at the time they are made.” Id. at 579. Where the trial court denies
relief on one theory, a defendant may not attain appellate relief on a new
theory for that same relief. Commonwealth v. York, 465 A.2d 1028, 1032
(Pa.Super.1983); see also Commonwealth v. Lopez, 57 A.3d 74, 81-82
(Pa.Super.2012) (party complaining on appeal of admission of evidence in
trial court is confined to specific objection there made; if counsel states
ground for an objection, all other unspecified grounds are waived and cannot
be raised for first time on appeal).
During his first trial, Rosser failed to argue that preclusion of cross-
examination about his statement to S.R. violated his constitutional right of
confrontation. Nor did he raise this issue during his second trial. Rosser
merely argued, in response to the Commonwealth’s motion in limine, that
cross-examining S.R. on this subject would not elicit hearsay. The first time
Rosser claimed that the trial court violated his right of confrontation was in
his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Because
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Rosser cannot switch legal theories on appeal in this manner, York, Lopez,
supra, he has waived his constitutional right of confrontation argument.5
Even if Rosser preserved this issue for appeal, it is devoid of merit.
We review the grant of a motion in limine for abuse of discretion.
Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa.Super.2014). “A trial
court has broad discretion to determine whether evidence is admissible,” and
a trial court’s ruling regarding the admission of evidence “will not be
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5
Although the Commonwealth failed to raise the waiver issue before the
original panel in this Court, we may still affirm on the basis of waiver,
because “we may uphold a decision of the trial court if there is any proper
basis for the result reached.” Nationwide Mut. Ins. Co. v. Fleming, 924
A.2d 1259, 1269 (Pa.Super.2007).
There is a second reason why the Commonwealth’s omission is excusable.
When the original panel in this Court reversed the trial court, the
Commonwealth, as the original prevailing party, had the right to request en
banc reargument on issues not previously raised on appeal, including
alternative rationales for affirming the trial court’s decision, because this was
the first time that the Commonwealth was an aggrieved party. See
Sernovitz v. Dershaw, -- A.3d --, 2015 WL 7283223, *7 n.9 (in wrongful
death action, (1) defendants asserted laches-type argument in preliminary
objections to amended complaint, (2) trial court sustained preliminary
objections and dismissed amended complaint, (3) plaintiff appealed to
Superior Court, (4) defendants did not raise laches-type argument before
Superior Court panel, (5) panel reversed order dismissing amended
complaint, (6) defendants filed application for reargument raising laches-
type argument, (7) Superior Court denied reconsideration, and (8)
defendants appealed to Supreme Court; Supreme Court held that
defendants “have not waived [the laches-type] argument. Defendants
forwarded it in briefs supporting their preliminary objections … As the
appellees before the Superior Court, they did not bear the burden of issue
preservation … Upon becoming aggrieved by the intermediate court's
decision, defendants addressed the topic in seeking reargument in that
tribunal and discretionary review in this Court …”).
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disturbed on appeal unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.” Commonwealth v. Huggins, 68 A.3d 962, 966
(Pa.Super.2013). In addition, the trial court has broad discretion regarding
“both the scope and permissible limits of cross-examination.”
Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa.2011). “The trial judge’s
exercise of judgment in setting those limits will not be reversed in the
absence of a clear abuse of that discretion, or an error of law.” Id.
The Confrontation Clause in the Sixth Amendment to the United States
Constitution provides that all criminal defendants enjoy “the right to confront
and cross-examine adverse witnesses.” Commonwealth v. Laird, 988
A.2d 618, 630 (Pa.2010). Moreover, “the exposure of a witness’ motivation
in testifying is a proper and important function of the constitutionally
protected right of cross-examination.” Delaware v. Van Arsdall, 475 U.S.
673, 678 (1986).6
____________________________________________
6
The Pennsylvania Constitution includes a right of confrontation. See Pa.
Const., Article I, § 9 (“in all criminal prosecutions the accused hath a right to
be heard by himself and his counsel [and] to be confronted with the
witnesses against him”). But because Rosser does not argue that Article I,
section 9 provides him with greater protection than the Sixth Amendment,
we will treat the state and federal provisions as coextensive for purposes of
this opinion. See Commonwealth v. Kratsas, 764 A.2d 20, 27 n. 5
(Pa.2001) (“while Appellees have suggested that this Court has the ability to
construe Article I, Section 9 more broadly than federal due process, they
have offered no particular reasons to support such a departure; therefore,
(Footnote Continued Next Page)
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Although the right of cross-examination is a fundamental right, it is
not absolute. The trial court may place reasonable limits on defense
counsel’s cross-examination of a prosecution witness “based on concerns
about, among other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only marginally
relevant.” Van Arsdall, 475 U.S. at 679. “Generally speaking, the
Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Fensterer, 474
U.S. 15, 20 (1985).
Van Arsdall articulates two inquiries for determining whether a
limitation on cross-examination violates the Confrontation Clause. First, we
inquire whether the limitation prejudiced the examination of that particular
witness. In other words, absent the limitation, would the jury have received
a “significantly different impression” of the witness’s credibility? Id. at 679-
80. Second, if there was error, we must determine whether it was harmless
beyond a reasonable doubt; if so, reversal is not warranted. Id. at 681.
Courts have found violations of the Confrontation Clause when the trial
court prohibits defense counsel from cross-examining a prosecution witness
about a verifiable fact that supports the defense. In Van Arsdall, for
_______________________
(Footnote Continued)
we continue to treat the pertinent constitutional guarantees as coterminous
for purposes of this opinion”).
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example, the trial court prohibited all inquiry into public drunkenness
charges against the prosecution witness that the state had dropped. The
state conceded that the underlying events took place, i.e., the witness had
been arrested for public drunkenness and the state had dropped charges
against him. The Court held that the trial court’s ruling violated the
defendant’s right of confrontation, for if the jury had been allowed to
consider those events, it “might reasonably have found [the events]
furnished the witness a motive for favoring the prosecution in his
testimony.” Id., 475 U.S. at 678-79. And in Davis v. Alaska, 415 U.S.
308 (1974), the United States Supreme Court held that the trial court’s
refusal to allow the defendant to cross-examine a key prosecution witness to
show his probation status following an adjudication of juvenile delinquency
violated the defendant’s constitutional right of confrontation,
notwithstanding the state’s policy of protecting the anonymity of juvenile
offenders. Once again, the trial court prevented the jury from considering
an objective, verifiable fact that supports the defense.
The right of confrontation, however, does not permit “fishing
expeditions”. DiBenedetto v. Hall, 272 F.3d 1, 11 (1st Cir.2001). The
court may prohibit cross-examination on a particular subject “if the party is
unable to lay a proper evidentiary framework.” Id. “Without such limits,
unchecked cross-examination on a theory of bias may unfairly prejudice the
opposing party’s case and only bring forth ‘marginally relevant’ evidence.”
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United States v. Martinez-Vives, 475 F.3d 48, 54 (1st Cir.2007) (quoting
Van Arsdall, 475 U.S. at 679). Thus, in Martinez-Vives, the First Circuit
found no Confrontation Clause violation where the trial court prohibited
cross-examination of two witnesses concerning police bias, because the
defendant “[failed to make] any proffer of evidence to serve as a foundation
for that theory.” Id. Other courts have reached similar conclusions. See
Dorsey v. Parke, 872 F.2d 163, 168 (6th Cir.1989) (trial court’s limits on
cross-examination of prosecution witness as to his mental stability did not
violate Confrontation Clause, where record suggested no factual basis for
such questioning); United States v. McCarty, 82 F.3d 943, 949-50 (10th
Cir.1996) (restricting defendant’s cross-examination of his probation officer
regarding her allegedly advising defendant that he would experience more
favorable probation treatment if he had sexual intercourse with her did not
violate defendant’s right to confrontation; cross-examination was particularly
invasive, injurious line of questioning concerning wholly unsubstantiated
allegations of sexual impropriety); State v. Barnes, 657 A.2d 611, 615-16
(Conn.1995) (disallowing defendant’s proposed cross-examination of victim
as to his alleged drug use, financial problems or reports of previous
burglaries did not violate defendant’s right to confrontation in larceny
prosecution; defendant had no reason to believe that victim actually had
drug or money problems or had previously reported robberies).
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To our knowledge, Pennsylvania appellate courts have not explicitly
endorsed the “fishing expedition” limitation on the constitutional right of
confrontation. A recent decision by our Supreme Court, however, implicitly
endorses this principle. See Briggs, supra. In Briggs, a capital case, the
defendant sought to present his brother as the murderer, and as part of this
strategy, the defendant attempted to cross-examine a Commonwealth
witness, his ex-girlfriend, about threats that his brother allegedly made to
her. There was no evidence that the defendant’s brother had threatened the
witness; to the contrary, the defendant’s brother denied during his trial
testimony that he threatened her. Even so, the trial court offered to allow
this cross-examination if the defendant produced evidence that his brother
was in the area of the murder at the time it occurred. The defendant could
not provide any such evidence, and the court precluded the proposed cross-
examination. Without mentioning the Confrontation Clause, our Supreme
Court held that the trial court’s decision was a proper exercise of discretion,
because “the record [shows] that [the defendant] did not provide the
requisite foundation for the avenue of cross-examination he wished to
pursue.” Id., 12 A.3d at 335.
In our opinion, Briggs’ logic is entirely consistent with the prohibition
against “fishing expeditions” in the foregoing decisions interpreting the
federal Confrontation Clause. Therefore, we now make explicit what is
implicit in Briggs: the Sixth Amendment does not entitle the defendant to
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cross-examine a Commonwealth witness on a subject for which the
defendant cannot provide a factual foundation.
In this case, during Rosser’s first trial, S.R. denied under cross-
examination that Rosser said, following his sexual assault: “I can’t see you
again, we could be friends, but I have a girlfriend.” Rosser did not testify.
Prior to Rosser’s second trial, the Commonwealth moved to preclude him
from cross-examining S.R. on this subject again. The trial court (like the
trial court in Briggs) precluded this cross-examination unless Rosser
promised to support it with facts in his case-in-chief. Rosser did not testify
during his second trial; nor did Rosser posit any reason to believe that S.R.
would change her answer on this subject during the second trial. Because
Rosser failed to provide any foundation for his proposed cross-examination –
i.e., because he failed to provide any evidence that he actually made this
statement to S.R. -- the trial court properly precluded defense counsel from
cross-examining S.R. about the alleged statement during Rosser’s second
trial.7, 8
____________________________________________
7
In its brief before the panel, the Commonwealth did not argue that
Rosser’s proposed question to S.R. was improper due to lack of any factual
foundation. The Commonwealth merely argued that any error in denying
this line of cross-examination was harmless due to the overwhelming
evidence of Rosser’s guilt. The panel thus reversed Rosser’s judgment of
sentence without having any realistic opportunity to analyze the
Confrontation Clause issue before us now. Nevertheless, for the reasons
articulated in footnote 5, supra, the Commonwealth has the right to raise
(Footnote Continued Next Page)
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In his remaining argument on appeal, Rosser argues that the verdict
was against the weight of the evidence. We disagree.
The law pertaining to weight of the evidence claims is well-settled:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice. On appeal, our
purview is extremely limited and is confined to whether the trial
court abused its discretion in finding that the jury verdict did not
shock its conscience. Thus, appellate review of a weight claim
consists of a review of the trial court’s exercise of discretion, not
a review of the underlying question of whether the verdict is
against the weight of the evidence. An appellate court may not
reverse a verdict unless it is so contrary to the evidence as to
shock one’s sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.Super.2015)
(citations omitted).
The trial court cogently explained why Rosser’s weight of the evidence
claim was unsuccessful:
_______________________
(Footnote Continued)
this argument during en banc proceedings, and we have the authority to
affirm the trial court on this basis.
8
Rosser’s en banc brief almost completely fails to address the first prong of
the Van Arsdall test (whether there was any Confrontation Clause error)
and focuses mainly on the second prong (whether the error was harmless
beyond a reasonable doubt). Because we hold that there was no
Confrontation Clause error, we need not address Rosser’s argument relating
to the second prong of Van Arsdall.
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As was within its province, the jury believed that [Rosser]
attacked, threatened, and forcibly raped [S.R.]. The jury
believed [S.R.]’s testimony that her encounter with [Rosser] was
not consensual. Video surveillance footage and police records
show a mere eighteen-minute span between the time that [S.R.]
step[ped] off the bus alone, and the time that she calls the
police to report that she had been raped on her walk home. The
jury credited [S.R.]’s testimony regarding her decision not to
fight back: that the abrupt and forceful way she had been
attacked and [Rosser]’s threatening statements made her fearful
for her life, and that she believed the only way to survive was to
pretend to befriend her attacker. The jury was well aware of the
difficult circumstances under which [S.R.] had to tell her family,
law enforcement officials, medical examiners, and the jurors
themselves, that she had been raped. The jury heard [Officer]
Hungerford describe [S.R.]’s apparent agitation and shaky,
trembling voice when he arrived at [S.R.]’s house minutes after
the incident. The jurors listened to [Nurse] Liskova testify that
there are medical reasons why a majority of female patients do
not exhibit genital injuries after being sexually assaulted, and
opine that her medical findings were consistent with the history
and facts that [S.R.] gave her. The jury was well within its
province to decide how much weight to give all the evidence
presented at trial. This Court did not palpably abuse its
discretion by denying [Rosser]’s Post-Sentence Motion for an
acquittal or for a new trial based on the weight of the evidence.
Pa.R.A.P. 1925(a) Opinion, at 14-15.
For the reasons given by the trial court, we conclude that it properly
exercised its discretion in denying Rosser’s challenge to the weight of the
evidence.
Judgment of sentence affirmed.
President Judge Emeritus Bender, Judges Panella, Shogan, Lazarus,
Ott and Stabile join the Opinion.
Judge Bowes files a concurring statement.
President Judge Gantman concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2016
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