Commonwealth v. Jerdon

229 A.3d 278

COMMONWEALTH of Pennsylvania, Appellant

v.John E. JERDON Jr., Appellee

No. 2540 EDA 2018

Superior Court of Pennsylvania.

Submitted April 29, 2019

Filed July 1, 2019

Reargument Denied August 22, 2019

Andrew S. Kovach, Assistant District Attorney, Media, for Commonwealth, appellant.

Christopher A. Hemmel, Springfield, for appellee.

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

The Commonwealth of Pennsylvania appeals from the Order entered in the Court of Common Pleas of Delaware County on August 16, 2018, granting the pre-trial Motion to Admit Evidence of Sexual Conduct Pursuant to 18 Pa.C.S.A. § 3104 (Rape Shield Law) filed by Appellee John E. Jerdon, Jr. Following our review, we reverse and remand.

The trial court set forth the facts and brief procedural history herein as follows:

[Appellee] has been charged with Indecent Assault¹ and Corruption of Minors.² The charges stem from an allegation that [Appellee] engaged in sexual touching of the victim from 1997 through 1999, when the victim was twelve to fourteen years old and [Appellee] was thirty-three to thirty-five years old. The matter was initially reported to police on October 30, 1999 after [Appellee's] stepson, Michael Kane, allegedly witnessed [Appellee] engaging in sexual touching of the victim in [Appellee's] bedroom. (Affidavit of Probable Cause, 12/15/16, pp. 1-2) A domestic altercation between [Appellee] and Mr. Kane ensued and the police were called. When interviewed, the alleged victim denied that any sexual touching occurred between her and [Appellee]. (Upland Borough Police ‘Incident Report 19991030M1, 10/29/99) The matter remained open "pending further investigation." (Affidavit of Probable Cause, 12/15/16, p. 1) On August 22, 2016, the alleged victim contacted police once again to report the incidents of the sexual touching from 1997 through 1999. Charges for the instant action were filed against [Appellee] in response to said report and investigation.

On May 11, 2018, [Appellee] filed a Motion to Admit Evidence of Sexual Conduct Pursuant to 18 Pa.C.S. § 3104. [Appellant's] basis for said motion was that two of the Commonwealth witnesses, the complainant and [Appellee's] stepson, Michael Kane, had a prior romantic and sexual relationship with each other. Since the two were, and still are, expected to corroborate each other's testimony, and the case is expected to be based on a "he said, she said" type of testimony, evidence of the relationship is relevant to show bias and to attack credibility. The court held an in-camera rape shield hearing on [Appellee's] motion on May 14, 2018 and May 16, 2018. [Appellee] submitted a memorandum in support of his motion and then filed a second memorandum in support of his motion on May 17, 2018. On July 10, 2018, [Appellee] filed a brief in support of his Motion and the Commonwealth submitted a response to the [Appellee's] brief. On August 16, 2018, this court entered an order granting [Appellee's] motion. The Commonwealth filed a Motion for Reconsideration on August 21, 2018, which was denied by order filed August 23, 2018.

On August 28, 2018, the Commonwealth filed [its] Notice of Appeal of the court's August 16, 2018 order pursuant to Pa.R.A.P. 313 (Collateral Orders). On September 4, 2018, this court issued an order requiring Appellant to file a Concise Statement of Matters Complained of on Appeal. Appellant filed said Statement on September 19, 2018[.]

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¹ 18 Pa.C.S. 3126.

² 18 Pa.C.S. 6301.

Trial Court Opinion, filed 10/26/18.

In its Concise Statement of Matters Complained of on Appeal, the Commonwealth presented three allegations of trial court error. In its brief, the Commonwealth presents the following question for this Court's review:

Did the trial court commit reversible error in granting [Appellee's] motion to pierce the Rape Shield Statute ( 18 Pa.C.S. § 3104 ) by allowing admission of the complainant's alleged, consensual sexual activity with a third party when the alleged other sexual conduct did not show the complainant's bias, motivation to fabricate, lie, or seek retribution or lack of credibility with respect to the allegations of indecent contact between her and [Appellee] nearly 20 years ago when she was under 16 years of age?

Commonwealth's Brief at 5.

Before we may address the merits of the Commonwealth's issue, we must determine whether we have jurisdiction to entertain this appeal. B.L. v. T.B. , 152 A.3d 1014, 1016 (Pa.Super. 2016) (a court may raise question of subject matter jurisdiction sua sponte ). As stated previously, this appeal lies from the August 16, 2018, pretrial order granting Appellee's motion in limine to admit evidence of complainant's other sexual conduct with a third party. We recently explained in Commonwealth v. Parker , 173 A.3d 294 (Pa.Super. 2017) :

Appellate review of any court order is a jurisdictional question defined by rule or statute. This principle applies to appellate review of a pretrial order. A court may consider the issue of jurisdiction sua sponte . In evaluating our jurisdiction to allow [a party's] appeal, we look to other criminal cases involving appeals of pretrial orders .... In this Commonwealth, an appeal may only be taken from: 1) a final order or one certified by the trial court as final; 2) an interlocutory order as of right; 3) an interlocutory order by permission; or 4) a collateral order.

Id. at 296 (quotation marks and citations omitted).

A final order is defined as any order that: "(1) disposes of all claims and of all parties; or (3) is entered as a final order pursuant to [ Pennsylvania Rule of Appellate Procedure 341(c) ]." Pa.R.A.P. 341(b). Instantly, the parties agree that the appeal does not lie from a final order, and the Commonwealth has not included a certification under Rule 311 in its notice of appeal.¹ Instead, the Commonwealth argues the order on appeal implicates the collateral order doctrine under Pa.R.A.P. 313.²

Rule 313, like Rule 311(d), provides an exception to the general rule that an appeal may be taken only from final orders. Rule 313 provides:

(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.

(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.

An order is collateral if (1) it is separable from and collateral to the main cause of action; (2) involves a right that is too important to be denied review; and (3) presents a question, which is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Shearer , 584 Pa. at 142, 882 A.2d at 468. Rule 313 is jurisdictional in nature. See Parker , 173 A.3d at 297. As a result, if a non-final order satisfies each of the requirements articulated in Rule 313, it is immediately appealable. Id. Notwithstanding, this court construes the collateral order doctrine narrowly to avoid piecemeal determinations and protracted litigation. Id. Before an order can be considered collateral, each prong of the collateral order doctrine must be clearly present. Id.

Instantly, Appellee seeks to introduce evidence of an alleged romantic relationship between complainant and Appellee's stepson Michael Kane. Appellee posits such evidence is relevant to show that the two had a motive to fabricate sexual assault charges and to show their bias as well as attack their credibility. The trial court's decision in this regard is separable from the underlying cause of action, as it can be decided without a consideration of whether Appellee is guilty of the charges. Simply stated, this Court need not consider Appellee's potential guilt or innocence of the crimes charged in resolving this appellate issue; therefore, the first requirement of the collateral order doctrine clearly has been met.

In Geniviva v. Frisk , 555 Pa. 589, 599, 725 A.2d 1209, 1214 (1999), our Supreme Court clarified that the second prong is satisfied when the claim implicates rights "deeply rooted in public policy going beyond the particular litigation at hand" and does not merely affect the individuals involved in the case at hand. Numerous cases have espoused the importance of the Commonwealth's interest in protecting the complainant's privacy pursuant to the Rape Shield Law while at the same time narrowly defining exceptions to that Law to ensure the accused's constitutional right to confront witnesses is not violated. As such, we find the Commonwealth has met the second prong of the collateral order doctrine.

Finally, if appellate review of this issue is delayed until final judgment in this case, and in the event of an acquittal, the Commonwealth's ability to pursue an issue pertaining to the introduction of the complainant's sexual conduct with a third party will be irreparably lost due to the constitutional prohibition against double jeopardy. Moreover, once testimony pertaining thereto has been heard, there is no way to reverse the clock so as to provide the Commonwealth relief on its claim that the complainant's privacy in this regard should be protected were that claim ultimately proven to have merit. See Shearer , supra , at 144, 882 A.2d at 469. Thus, we find all three prongs of the collateral order doctrine have been satisfied and proceed to consider the merits of the issue the Commonwealth presents in its appellate brief.

"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." Commonwealth v. K.S.F. , 102 A.3d 480, 483 (Pa.Super. 2014) (citations omitted). "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...