Opinion
J-S29025-17 No. 2462 EDA 2016
09-11-2017
COMMONWEALTH OF PENNSYLVANIA v. ALLEN NEAL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated July 11, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000225-2015 BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E. MEMORANDUM BY SOLANO, J.:
Former Justice specially assigned to the Superior Court.
Appellant Allen Neal appeals from the judgment of sentence imposed after he was convicted of two counts of indecent assault. We affirm in part, vacate in part, and remand for imposition of a twenty-five year registration requirement under the Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.41 (SORNA).
18 Pa.C.S. §§ 3126(a)(1) (without complainant's consent) and (a)(4) (unconscious complainant).
The trial court set forth the facts of this case as follows:
[Appellant] and the victim, Karina Zelaya-Betancourt, had been best friends for approximately six or seven years prior to this incident, which occurred in the early morning hours on December 14, 2014. Following a night out, [Appellant], the victim, and several friends went to the victim's apartment to
continue the party. As the party died down, most of the guests left until only [Appellant], the victim, and the victim's friend, Amanda Belen, remained. The victim went to sleep in her daughter's bedroom because Ms. Belen had already gone to sleep in her room. [Appellant], after checking in on the victim, went to sleep on the living room couch.
At approximately 8:00 a.m., the victim was awoken by a "pain anally and I saw [Appellant] over me and I just told him to get off of me." She testified that she had been sleeping on her stomach and that her pajama pants and underwear had been pulled down. [Appellant] was mostly clothed but the victim "saw him like tuck himself back in before he got off of me" and "walked to the living room." On cross-examination, the victim conceded that she did not actually see [Appellant]'s penis.
Following the assault, the victim felt wetness on her buttocks area. She went into the bathroom, wiped the area with baby wipes, and discovered that she was bleeding from her anus. Some of the bloody wipes were flushed down the toilet, but several others were thrown into the trashcan. . . .
After wiping herself off, the victim went into her bedroom, where Amanda Belen had been sleeping until she was awoken after hearing the victim yell at [Appellant]. The victim then called another friend, who lived close by and had been present the night before, to escort [Appellant] out of the apartment. [Appellant] complied without incident.
Subsequently, the victim was taken to Pocono Medical Center and the police were called. At the hospital, the victim was examined by Rose Reyes, R.N., a Sexual Assault Nurse Examiner (SANE). During the examination, the victim provided a statement to Nurse Reyes and Detective Robert Miller of the Pocono Mountain Regional Police Department (PMRPD).
Nurse Reyes, who qualified as an expert SANE nurse, testified that, at the beginning of the examination, the victim was crying and recounted the facts summarized above. During the interview portion of the examination, the victim completed a
questionnaire, which asked various questions, including one central to this appeal: whether the victim had consensual sex in the previous five days. On the questionnaire, the victim responded that she had not. . . .Trial Ct. Op., 10/5/16, at 2-4 (citations to the record omitted).
During her physical examination of the victim, Nurse Reyes discovered "tearing in the anal area. It was mostly toward the 5 and 8 o'clock area. There was tiny little skin tears with a little tiny bit of bleeding more so to the 5:00 and 6:00 area." Nurse Reyes opined that these tears were consistent with trauma. Nurse Reyes took swabs of the victim's mouth, anus, and vagina, which were provided to the police.
The victim's daughter was not in the apartment that night.
Appellant was arrested and taken to police headquarters, where, after being given Miranda warnings, he provided a recorded interview. After the interview, police went to Ms. Zelaya-Betancourt's apartment and collected evidence, including the bloody wipes in the trashcan. The evidence gathered by Nurse Reyes and the police, together with a DNA swab from Appellant, was sent to the Pennsylvania State Police Crime Lab for testing and analysis. Trial Ct. Op. at 4.
Miranda v. Arizona , 384 U.S. 436 (1966).
Appellant was charged with rape of an unconscious victim, involuntary deviate sexual intercourse, sexual assault, two counts of aggravated indecent assault, and two counts of indecent assault. A jury was selected on April 5, 2016, and the evidentiary portion of Appellant's trial began on April 18, 2016. Trial Ct. Op. at 2. Prior to the evidentiary portion of the trial, the Commonwealth gave notice of its intent to play the recorded interview Appellant had given to the police. Citing the Rape Shield Law, 18 Pa.C.S. § 3104, the Commonwealth sought to redact references Appellant had made during the interview to Ms. Zelaya-Betancourt's alleged sexual encounter with another male the night before the incident in this case. Appellant objected to the redaction, and the court reserved ruling on the issue until more context was provided as the trial progressed. Trial Ct. Op. at 5.
As discussed in greater detail later in this memorandum, the Rape Shield Law places limits on the admissibility of evidence regarding past sexual conduct of a sexual assault victim.
Ms. Zelaya-Betancourt testified and was cross-examined about the statement she gave at the hospital; she confirmed that she had checked a box to indicate that she had not had consensual sex in the five days preceding the incident. Trial Ct. Op. at 3-4. The Commonwealth's DNA expert later testified that the DNA of three individuals - Appellant, Ms. Zelaya-Betancourt, and an unidentified person - was present on the wipes. Further, analysis of Ms. Zelaya-Betancourt's rectal swab did not reveal Appellant's DNA but did reveal male DNA that was not Appellant's. Id. at 4-5.
At the end of the first day of testimony, the trial court addressed whether Appellant's allegation that Ms. Zelaya-Betancourt had sex with another man the night before the incident should be redacted from Appellant's statement to the police. Appellant argued that the inconsistency between Ms. Zelaya-Betancourt's assertion that she had not had sex in the five days preceding the incident and the DNA expert's testimony regarding the presence of a third person's DNA created an issue as to Ms. Zelaya-Betancourt's credibility. Trial Ct. Op. at 6. Appellant contended that this credibility issue allowed him to introduce the portion of his statement about Ms. Zelaya-Betancourt's prior sexual encounter, notwithstanding the prohibition in the Rape Shield Law. The trial court did not make a ruling at that time, and requested that the parties conduct additional research on the issue. The next morning, Appellant withdrew his objection to the redaction. The redacted version of the interview was played for the jury.
After the Commonwealth rested, Appellant called Arthur Young as a DNA expert. As the trial court explained:
In large measure, Mr. Young agreed with the police analysts, including their conclusion that the bloody wipes most likely contained the DNA of [Appellant], the victim, and an unknown person. Mr. Young also agreed that the DNA analysis of the rectal swab revealed the presence of male DNA that was not contributed by [Appellant].Trial Ct. Op. at 6-7 (citations to the record omitted).
Appellant then stated he would be recalling Ms. Zelaya-Betancourt, and the court held a sidebar. The Commonwealth asked for an offer of proof. Appellant responded that due to testimony regarding the DNA of a third person and Ms. Zelaya-Betancourt's statement that she had not had sex in the five days preceding the incident, "the credibility of a witness is now in play." N.T., 4/19/16, at 157. Appellant sought to ask Ms. Zelaya- Betancourt why the DNA of a third person was found on the rectal swab. Id. at 156. The Commonwealth responded that Ms. Zelaya-Betancourt had already been asked whether she had sex in the five days preceding the incident; the presence of a third person's DNA did not mean that Ms. Zelaya-Betancourt had sex with the third person; Appellant's proposed line of questioning was prohibited by the substance of the Rape Shield Law; and Appellant failed to comply with the procedural requirements of the Rape Shield Law. Id. at 157-58.
The trial court ruled that Appellant could not ask Ms. Zelaya-Betancourt about having sex with anyone else, but could call Ms. Zelaya-Betancourt to testify regarding matters not covered by the Rape Shield Law. The court reasoned that (1) Appellant had not satisfied the procedural requirements of the Rape Shield Law by filing a timely written motion; and (2) credibility as a general concept did not trump the Rape Shield Law. N.T., 4/19/16, at 159-60. After the trial court announced its ruling, Appellant decided not to call Ms. Zelaya-Betancourt.
On April 20, 2016, the jury found Appellant guilty of two counts of indecent assault. The jury found Appellant not guilty of all other charges. On July 11, 2016, the trial court imposed a sentence of twelve to sixty months' incarceration. Appellant was classified as a Tier III sex offender under Section 9799.14(d)(16) of SORNA, which meant that he would be subject to a lifetime registration requirement. Section 9799.14(d)(16) provides for a Tier III classification if an offender has had "[t]wo or more convictions of offenses listed as Tier I or Tier II sexual offenses." 42 Pa.C.S. § 9799.14(d)(16). On August 4, 2016, Appellant filed a timely notice of appeal.
In this appeal, Appellant raises the following issues, as stated in his brief:
Does a trial court abuse its discretion under the 6th Amendment confrontation clause of [the] United States Constitution where [the] victim claims sexual assault of her rectum by [Appellant] and [a] rectal swab of [the] victim shows the presence of a male contributor not that of [A]ppellant and [A]ppellant wishes to question [the] victim as to her credibility and possible motive for bias?Appellant's Brief at 5.
Whether [Appellant] is subject to Tier III lifetime Megan's Law Registration.
"Megan's Law was the predecessor statute to SORNA." Commonwealth v. Evans , 138 A.3d 28, 30 n.3 (Pa. Super. 2016). --------
Appellant's Confrontation Claim
Appellant first claims that the trial court abused its discretion by precluding him from questioning Ms. Zelaya-Betancourt regarding the alleged inconsistency between her statement that she had not had consensual sex in the five days preceding the incident and the presence of another person's DNA on her rectal swab. Appellant contends that this line of questioning related to Ms. Zelaya-Betancourt's credibility and was not precluded under the Rape Shield Law.
In Commonwealth v. Burns , we stated:
A trial court's ruling on the admissibility of evidence of the sexual history of a sexual abuse complainant will be reversed only where there has been a clear abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citations and quotation marks omitted), appeal denied , 8 A.3d 341 (Pa. 2010). Whether a defendant has been denied the right to confront a witness under the Confrontation Clause is a question of law which we review de novo. See Commonwealth v . Yohe , 79 A.3d 520, 530 (Pa. 2013), cert. denied , 134 S. Ct. 2662 (2014).
The trial court denied Appellant's request to question Ms. Zelaya-Betancourt in light of the Rape Shield Law, which provides:
§ 3104. Evidence of victim's sexual conduct
(a) General rule.—Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim's past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall
make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).18 Pa.C.S. § 3104. This Court has explained:
The purpose of the Rape Shield Law is to prevent a trial from shifting its focus from the culpability of the accused toward the virtue and chastity of the victim. The Rape Shield Law is intended to exclude irrelevant and abusive inquiries regarding prior sexual conduct of sexual assault complainants.Burns , 988 A.2d at 689 (footnote and citations omitted).
With regard to the procedural requirements of the Rape Shield Law, "[w]e have repeatedly stated that a defendant who desires to introduce evidence of the victim's prior sexual conduct must file a written motion and make a specific offer of proof prior to trial. We will presume that the legislature intended 'shall' to be mandatory in the statute at hand." Burns , 988 A.2d at 690-91 (citations omitted).
Substantively, "the Rape Shield law will bow to a defendant's right to confront and cross-examine when a specific proffer demonstrates that the proposed inquiry is intended to elicit relevant evidence, which is more probative than prejudicial, and which is not cumulative of other evidence available without encroaching upon Rape Shield Law protections." Commonwealth v. Nieves , 582 A.2d 341, 347 (Pa. Super. 1990), appeal denied , 600 A.2d 952 (Pa. 1991). "If the offer of proof shows only that others in addition to the defendant had sexual contact with the victim, but does not show how the evidence would exonerate the defendant, evidence of prior sexual activity is inadmissible under the Rape Shield Law." Commonwealth v. Fink , 791 A.2d 1235, 1242-43 (Pa. Super. 2002) (citations omitted).
After careful review of the parties' briefs, the record, and the opinion by the Honorable Jonathan Mark, we conclude that Appellant's first issue merits no relief. The trial court's opinion comprehensively discusses and properly disposes of this issue. See Trial Ct. Op. at 12-15 (explaining (1) Appellant failed to comply with the procedural requirements of the Rape Shield Law; (2) "the evidence [Appellant] sought to introduce to address credibility was heard by the jury, albeit without reference to the alleged sexual encounter with a man the night before, through the testimony of the victim and the reports and testimony of the experts"; and (3) Appellant's general credibility argument was insufficient to trump the Rape Shield Law). With respect to Appellant's claim that he was denied his constitutional right to confront Ms. Zelaya-Betancourt through cross-examination, we note that the trial court did not preclude Appellant from recalling Ms. Zelaya-Betancourt as a witness. Rather, the court merely applied the Rape Shield Law's restrictions on the admissibility of evidence of past sexual conduct in limiting the questions that Appellant could ask if he questioned Ms. Zelaya-Betancourt; Appellant was free to confront Ms. Zelaya-Betancourt through other areas of questioning, but elected not to do so once the trial court made clear that his questioning had to conform to the Rape Shield Law's requirements. Enforcement of rules regarding the admissibility of evidence is not a violation of the constitutional right to confront witnesses. See Commonwealth v. Quartman , 458 A.2d 994, 996 (Pa. Super. 1983) ("The fundamental right to confront witnesses often gives way . . . to certain evidentiary principles."). Appellant therefore is not entitled to relief on this issue.
SORNA Registration Period
In his second issue, Appellant argues that, in light of recent guidance from the Supreme Court of Pennsylvania, he should be classified as a Tier II offender, rather than a Tier III offender, under SORNA. The Commonwealth and the trial court both agree with Appellant's position. See Trial Ct. Op. at 15-17; Commonwealth's Brief at 9.
We also agree. The Pennsylvania Supreme Court's decision in Commonwealth v. Lutz-Morrison , 143 A.3d 891 (Pa. 2016), was issued on August 15, 2016, after the trial court in this case classified Appellant as a Tier III offender. The Supreme Court in Lutz-Morrison held that Section 9799.14(d)(16) of SORNA "requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise subject to a fifteen- or twenty-five-year period of registration." Lutz-Morrison , 143 A.3d at 895 (citation omitted). Appellant was convicted of two counts of indecent assault in this case, but his conduct did not involve an act, a conviction, and a subsequent act within the meaning of Lutz-Morrison. As the trial court explained, Appellant's "Indecent Assault convictions arose from a single act that was [Appellant]'s initial act for registration purposes. Accordingly we agree that [Appellant] is not subject to lifetime registration under SORNA." Trial Ct. Op. at 16.
The most serious crime of which Appellant was convicted was indecent assault of an unconscious person, 18 Pa.C.S. § 3126(a)(4), a Tier II offense. See Trial Ct. Op. at 16; 42 Pa.C.S. § 9799.14(c)(1.3). Appellant's registration period should therefore be twenty-five years. See Trial Ct. Op. at 16; 42 Pa.C.S. § 9799.15(a)(2). Accordingly, with the benefit of the Supreme Court's recent statutory construction, and because the Commonwealth also conceded Appellant is due relief, we vacate the lifetime registration portion of Appellant's sentence and remand for imposition of a twenty-five year registration requirement under SORNA.
In sum, we vacate the lifetime registration portion of Appellant's sentence and remand for imposition of a twenty-five year registration requirement under SORNA. In all other respects, Appellant's judgment of sentence is affirmed. Because we affirm in part based on the trial court's opinion, the parties are instructed to attach a copy of the trial court's October 5, 2016 opinion to any future filing referencing this Court's decision.
Affirmed in part, vacated in part. Jurisdiction relinquished.
President Judge Emeritus Stevens joins the memorandum.
Judge Lazarus notes dissent. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/11/2017
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