Commonwealth v. McCourt

COMMONWEALTH OF PENNSYLVANIA v. DENVER SAMUEL MCCOURT Appellant

No. 1010 MDA 2020

Superior Court of Pennsylvania

November 29, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 6, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001931-2018

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PANELLA, P.J.

Denver McCourt appeals from the judgment of sentence entered after a jury convicted him of aggravated indecent assault and indecent assault.^[1]McCourt admits to having sexual intercourse with the complainant in his camper after meeting her at a local bar while out with some of his friends, but asserts that it was consensual. The complainant, however testified that McCourt raped her after getting her alone in his camper under the guise of showing her to the restroom. It is largely undisputed that following the intercourse, the complainant ran back to McCourt's friends, and informed them she had been raped. McCourt's friends did not react and she called the police. The dispatcher directed her to drive to the State Police barracks, where an officer met her and took her to the hospital for a rape kit examination. At trial, McCourt's defense of consent centered around his contention that the complainant consented to sex with him and then fabricated a rape allegation when she thought her significant other might find out.

McCourt raises three challenges on appeal. First, McCourt contends that the trial court erred in denying his motion in limine to admit the complainant's social media posts to impeach her credibility. Next, McCourt argues that the trial court erred by denying the defense request for a missing evidence jury instruction to account for the lack of the audio of the 911 call made by the complainant and the video footage of her entering the State Police barracks. Finally, McCourt challenges the sexual offender registration requirements as applied to him under Subchapter H of the Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. § 9799.10-9799.42, as violating due process and his right to reputation. We will address these claims in order.

McCourt first argues that the trial court erred in precluding photographs the complainant posted on her social media account after the incident. Our standard of review when assessing an evidentiary ruling by a trial court is deferential. See Commonwealth v. Wallace, 244 A.3d 1261, 1269 (Pa. Super. 2021). We will only reverse an admissibility finding when a clear abuse of discretion is present. See id. A mere error of judgment does not constitute an abuse of discretion. See id. Rather, to abuse discretion the trial court must have made an error of law or made a judgment that the record shows is manifestly unreasonable or based on bias, prejudice, ill will or partiality. See id.

McCourt attempted to pierce the Rape Shield with a motion in limine to admit photographs the victim posted to her social media account. The Rape Shield Law provides, "[e]vidence 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". 18 Pa.C.S. § 3104(a). In order to offer evidence prohibited by the Rape Shield at trial, a defendant must, "file a written motion and offer of proof at the time of trial". Id. at (b). Then, if the trial court finds the motion and offer of proof to be sufficient it must hold an in-camera hearing and decide the relevance and admissibility of the evidence on the record. See id. During the in-camera hearing, the trial court conducts a balancing test weighing: "(1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility." Commonwealth v. Jerdon, 229 A.3d 278, 285-286 (Pa. Super. 2019) (citations omitted).

McCourt's motion in limine requested that the trial court allow the introduction of two social media posts. The posts in question are pictures the complainant shared on March 20, 2018, and March 22, 2018. McCourt contended in his motion that the complainant's posts, which he characterizes as "sexually provocative images of herself", could be viewed by a jury as conduct "inconsistent with a person who has been recently raped by force". Defendant's Motions in Limine, 1/17/2019 at 11. McCourt argued that the social media posts were relevant to the complainant's credibility and were admissible to show her conduct and state of mind following the alleged rape. See Defendant's Brief in Support of His Motions in Limine, 1/17/2019 at 15-16. He claimed the social media posts support his contention that she fabricated the rape allegation. See id. He further argued that if the photographs were not admitted, his rights under the confrontation clause of the United States Constitution would be violated. See id.

The trial court denied McCourt's motion in limine. See Trial Court Order, 3/7/2019. In its Pa.R.A.P. 1925(a) Opinion, the trial court explained the process by which evidence of the past sexual conduct of an alleged rape victim may be ruled admissible under the Rape Shield Law. See Trial Court Opinion, 1/6/2021 at 37-38. The trial court concluded that it did not need to proceed to the statutorily required in-camera hearing because it found that the "proffer is insufficient on its face". Id. at 38. The trial court clarifies that it specifically found the photographs to be protected under the Rape Shield Law:

The posted photographs are not relevant to show either that she had not been assaulted or that she was not acting like a person who had been assaulted. Put simply, they do not exculpate Defendant. Indeed, evidence of the photos tends to show simply that the complainant did indeed pose for and posted the photographs almost three weeks after the incident. In our judgment, the photos - which are of an artistic but also provocative nature - clearly represent the type of evidence prohibited by the Rape Shield Law. Accordingly, this court properly denied Defendant's motion in limine to admit the victim's social media posts.

Id. at 40.

On appeal, McCourt reiterates his argument presented in his motion in limine. See Appellant's Brief, at 3-8. He furthers his argument by claiming that not admitting the photographs into evidence violated his Sixth Amendment right to confrontation. See id. at 3. McCourt cites to case law supporting the fact that the Rape Shield Law must bow to a defendant's right to cross-examine their accuser and relevant evidence that shows bias or calls into question credibility cannot be excluded under it. See id. at 3-8. McCourt cites cases that were remanded for new trials or evidentiary hearings where appellants made claims that complainants' relationships with third parties were evidence of motive to fabricate assault allegations. See id. (citing Commonwealth v. Killen, 680 A.2d 851 (Pa. 1996), Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), Commonwealth v. Northrip, 945 A.2d 198 (Pa. Super. 2008, and Commonwealth v. Palmore, 195 A.3d 291 (Pa. Super. 2018).

We agree with the trial court that these cases are distinguishable. In Black, Northrip, and Palmore, the evidence at issue was proffered to establish that the complainant had a motive to fabricate the allegation of assault. See Black, 487 A.2d at 398 (recognizing that appellant argued that evidence of the complainant's sexual relationship with her brother was necessary to establish her motive to punish appellant for separating her from her brother); Northrip, 945 A.2d at 204 (concluding that evidence of the complainant's sexual relations with a third party could establish a motive to fabricate the assault charge due to complainant's fear of her "overprotective mother"); Palmore, 195 A.3d at 295 (agreeing that evidence of complainants prior sexual relations could establish motive to fabricate where defendant had previously told complainant's boyfriend that she had cheated on the boyfriend).

Here, other than a passing allegation that the social media posts showed the complainant "had a motive to fabricate the allegations[, ]" McCourt does not link the posts to a motive to fabricate. Appellant's Brief, at 8. Instead, his primary argument on appeal is that the posts "would have shown behavior that was inconsistent with having been violently raped just two weeks prior and it would have impeached her testimony regarding the physical and psychological[] effects that the alleged attack had on her." Id., at 9. As such, Black, Northrip, and Palmore do not support McCourt's argument on appeal.

Much more relevant, though ultimately still unavailing, is McCourt's reliance on Killen. In Killen, the defendant proffered evidence of sexually provocative statements made by the allegedly intoxicated complainant made in the ambulance and in the hospital immediately after she was allegedly assaulted. See Killen, 680 A.2d at 852-53. The Supreme Court of Pennsylvania held that the Rape Shield did not act to prohibit this evidence:

The Rape Shield Law was not designed to exclude evidence of a victim's statements to persons which are part of and relevant to the ongoing episode in which the alleged criminal activity takes place. The fact that the statements are sexually provocative in content does not automatically bring them within the protective purview of the Rape Shield Law.

Moreover, appellant did not seek admission of the complainant's provocative statements to

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