Commonwealth v. Goldstein

270 A.3d 1157 (Table)

COMMONWEALTH of Pennsylvania

v.Ari GOLDSTEIN, Appellant

No. 2095 EDA 2020

Superior Court of Pennsylvania.

Filed December 22, 2021

Reargument Denied February 15, 2022

MEMORANDUM BY STEVENS, P.J.E.:

Ari Goldstein ("Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury convicted him of indecent assault by forcible compulsion, attempted involuntary deviate sexual intercourse ("IDSI") by forcible compulsion, and attempted involuntary deviate sexual intercourse. Sentenced to three and one-half to seven years’ incarceration with a five year probationary tail, Appellant challenges the consolidation of sexual assault charges relating to separate incidents alleged by different complainants, the court's application of the Rape Shield Law, the court's evidentiary ruling as to the scope of cross-examination, the sufficiency of the evidence, and the constitutionality of Subsection H of the SORNA II statute. After careful review, we affirm.

The Trial Court aptly sets forth the pertinent factual and procedural history, as follows:

This case involves Appellant's alleged sexual assault of two adult female complainants, J.L. and R.F. At the time of both incidents, all three individuals were undergraduate students at Temple University, and Appellant was president of the university's chapter of Alpha Epsilon Pi ("AEPi") (a college fraternity). N.T., 2/13/20, at 7-8. Members of AEPi, including Appellant, resided at the AEPi fraternity house on North Broad Street in Philadelphia.

CP-51-CR-0007533-2018, Complainant J.L.

At trial, J.L. (Complainant under Docket CP-51-CR-0007533-2018) testified to the following events. At the time of the alleged conduct, J.L. was a member of AEPi's sister sorority, Alpha Epsilon Phi ("AEPhi"). N.T. 2/12/20 at 42. J.L. maintained friendships with several members of AEPi, including Appellant, and she and her sorority sisters regularly frequented the AEPi house. N.T. at 42, 46, 56. Further, she and Appellant maintained a sexual relationship, and the two had engaged in consensual sexual contact "three or four" times before the incident at issue. N.T. at 46.

On the evening of November 29, 2017, members of AEPi invited the sorority to the AEPi house to "pregame" before going to campus bars around Temple University. N.T. at 42. J.L. drank "two or three glasses of wine" at the AEPi house; she testified that she was "tipsy" but coherent. N.T. at 43. At some point, members of AEPi and AEPhi left the fraternity house and went to The Draught Horse, a bar located on Cecil B. Moore Avenue in Philadelphia. N.T. at 43. Appellant did not accompany the group to the bar. N.T. at 48.

To "pregame" is "to drink alcoholic beverages prior to a social engagement to make it more enjoyable." Pre-Game, URBAN DICTIONARY, https://www.urbandictinary.com/define.php?term=Pre-Game (last visited Feb. 3, 2021).

Around 1:30 a.m., J.L. and two AEPi members, Matt Perel and Mitchell Pisarz, left the bar and went back to the AEPi house. Thirty minutes later, around 2:00 a.m., Appellant invited J.L. to his bedroom. (Id. at 48); (Comm. Ex. 9 at 2-3) (unpaginated). Appellant did not share the room with anyone, and J.L., who accepted the invitation, went to his room by herself. N.T. at 48-49. The two briefly spoke on Appellant's couch before engaging in consensual sexual intercourse. N.T. at 49. At some point, Appellant positioned himself on top of J.L. and pressed his hand on the area of her chest/collarbone, as he shoved the fingers of his other hand into her throat. N.T. at 50. The complainant struggled with him for "a couple of minutes" before she could manage to speak and demand that he stop. Id. J.L. testified that Appellant had never done that during their prior encounters, he did not obtain consent to do that on the evening in question, and the gesture scared her and caused her pain. N.T. at 50-51. She further testified that Appellant's actions caused her to sustain bruises on her arm and collar bone. N.T. at 61.

After J.L. told Appellant to stop, he asked her to perform oral sex on him. N.T. at 52. She testified that she briefly complied with his request, explaining, "I just figured it was an easy way to kind of ... end the situation and get out of there as quickly as I could." Id . More specifically, J.L. testified that she performed oral sex on Appellant for less than five seconds, before telling Appellant, "Stop, I don't want to do this anymore." Id . Appellant, who was still seated on his couch, responded, "No, don't stop," grabbed the back of J.L.’s head, and tried to push her mouth onto his penis. N.T. at 53. Even as J.L. cried, repeatedly told him "no," and begged him to stop, Appellant did not stop. Id . J.L. tried to physically resist Appellant by pushing him away. N.T. at 54. The two struggled for a few moments, but J.L. eventually managed to break away from him. N.T. at 55, She stood up and said, "Can you fucking stop," before getting dressed and leaving Appellant's bedroom. Id .

CP-51-CR-0005228-2018, Complainant R.F.

At trial, R.F. (Complainant under Docket CP-51-0005228-2018) testified as follows. On February 25, 2018, R.F. went to a party at the AEPi house with three friends. N.T., 2/12/20, at 138-139. R.F., a freshman at the time of the incident, testified that she had gone to the AEPi house almost every weekend since August of 2017. N.T. at 138. Before going to the party on February 25, R.F. partially consumed a mixed drink consisting of vodka and Gatorade. N.T. at 139. She explained that she did not finish her drink and she was not intoxicated at the time of the alleged incident. N.T. at 140.

R.F. and her friends arrived at AEPi around 12:00 a.m. N.T. at 139. The group socialized and danced together for approximately forty-five to fifty minutes before Appellant approached R.F. and asked her if she wanted to go to his room to "smoke weed." N.T. at 141, 143. R.F. accepted the offer and followed Appellant to his bedroom on the third floor. N.T. at 144. No one accompanied the pair. N.T. at 144-45. When the two arrived, Appellant opened his door and R.F. walked inside. N.T. at 145. Appellant immediately grabbed R.F.’s wrist, locked his bedroom door, and pulled her to the couch. Id .

Once the two were seated, Appellant kissed R.F.’s mouth, as he maintained his grip on her wrist. N.T. at 147. She pulled away and told him, "Stop. I'm not here to do this." Id . Appellant replied, "Why else would you come upstairs with me?" Id . Appellant "pinned" R.F. on her back and continued to kiss her. Id . R.F. described the incident in detail, explaining that he held both of her hands above her head as he straddled her and pushed his knee into her left thigh. N.T. at 147-48. The complainant explained that she could not move, and she continuously "beg[ged] him to stop." N.T. at 148.

Appellant did not stop. N.T. at 148. Rather, he continued to kiss her mouth as he pulled at her shirt and bra, eventually exposing her left breast. Id . At some point, R.F. screamed and Appellant "let go for a second." N.T. at 150. R.F. managed to sit up, but "as soon as [she] sat back up," Appellant pushed her down and, again, pinned her hands above her head. Id . The complainant started to cry, scream, and "thrash" her body. N.T. at 151. Again, Appellant stopped for a brief moment. Id . He then grabbed her left arm and pulled her on top of him, before seizing and securing both of her hands and pushing her head "towards his crotch." N.T. at 152. As he pushed her head and "thrust his hips’ towards her face, Appellant told her, "You know you want to do this. That's what you came up here for. Just do it." Id . Appellant continued to push his groin towards her face as he grabbed his belt buckle and indicated that he wanted her to unbuckle it. N.T. at 154. She repeatedly urged him to stop, but he laughed and ignored her pleas. N.T. at 152.

Eventually, the complainant managed to free her leg and kick Appellant. N.T. at 155-56. Appellant finally released his grip, and R.F. immediately ran out of his room. N.T. at 156. As she fled the attack, Appellant told her, "Don't tell anyone about this." Id . As a result of the incident, R.F. sustained a large bruise on her thigh. N.T. at 160.

R.F. testified that she did not report the incident to authorities until April of 2018 because she did not want her favorite fraternity to get into trouble due to the actions of "one bad seed." N.T. at 161. The complainant eventually disclosed the abuse after unexpectedly seeing Appellant on campus. N.T. at 162. The sighting caused R.F. to suffer a panic attack, and she reported the incident to police the following day. N.T. at 162-63.

...

On February 18, 2020, following a jury trial, [Appellant] was convicted [as noted, supra ]. [The trial] sentenced Appellant ... on October 21, 2020, to three and one-half to seven years’ incarceration, followed by five years of probation.

As part of his sentence, Appellant was also ordered to comply with all Tier III sex offender obligations under the current Pennsylvania Sexual Offender Registration and Notification Act (SORNA II). At sentencing, counsel for Appellant raised an oral post-sentence motion for reconsideration, challenging the legality of his sentence under SORNA II. [The trial court] contemporaneously denied the motion.

42 Pa.C.S.A. § 9799.10 et seq .

Appellant filed a timely notice of appeal on October 26, 2020, and on November 2, 2020, [the trial court] ordered him to file a statement of errors complained of pursuant to Pa.R.A.P. 1925(b). Appellant filed his 1925(b) statement on November 18, 2020....

Trial Court Opinion, at 3-6, 1-2.

Appellant raises the following issues for our consideration:

I. Did the trial judge abuse her discretion in granting the prosecution's motion for consolidation of two separate sexual offenses charged against the Appellant?

II. Did the trial judge abuse her discretion by refusing to allow the defense to pierce the Rape Shield Statute to

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