Commonwealth v. Palmore

195 A.3d 291

COMMONWEALTH of Pennsylvania

v.Darold William PALMORE, Appellant

No. 931 WDA 2017

Superior Court of Pennsylvania.

Submitted April 2, 2018

Filed September 05, 2018

Reargument Denied November 14, 2018

Erich R. Spessard, Public Defender, Clarion, for appellant.

Drew J. Welsh, Assistant District Attorney, Clarion, for Commonwealth, appellee.

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

OPINION BY OLSON, J.:

Appellant, Darold William Palmore, appeals from the judgment of sentence entered on June 7, 2017. Appellant's primary contention on appeal is that the trial court wrongly barred certain testimony from a sexual assault victim under Pennsylvania's Rape Shield Law, 18 Pa.C.S.A. § 3104. We hold that the application of the Rape Shield Law in the particular circumstances of this case violated Appellant's Confrontation Clause rights. As this was not harmless error, we vacate Appellant's judgment of sentence and remand for a new trial.

During the Fall 2015 semester, Appellant was a student at Clarion University. One evening, he hosted a gathering in his dorm room where he met K.H. ("Victim"). Approximately two weeks later, Appellant and Victim were speaking in Victim's dorm room. Appellant forced himself on Victim, kissed her, placed one hand under Victim's shirt touching her breast, and placed one hand down Victim's pants touching her vagina. Victim objected throughout this assault.

The Commonwealth charged Appellant via criminal information with indecent assault,¹ disorderly conduct,² and harassment.³ Prior to trial, Appellant moved in limine to permit introduction of Victim's past sexual conduct. At the conclusion of an in camera hearing, the trial court denied the motion. During trial, Appellant moved for reconsideration of this decision and the trial court denied that motion. On October 11, 2016, a jury found Appellant guilty of all three offenses. On May 25, 2017, at the conclusion of an evidentiary hearing, the trial court designated Appellant a sexually violent predator ("SVP"). On June 7, 2017, the trial court sentenced Appellant to an aggregate term of 228 to 729 days' imprisonment. This timely appeal followed.⁴

Appellant presents four issues for our review:

1. Did the trial court err in denying Appellant's request to question [V]ictim regarding her knowledge of a conversation between Appellant and her then boyfriend concerning a prior sexual encounter?

2. Did the trial court err in disallowing Appellant to adequately question [V]ictim regarding statements that she made at the time of trial, thereby violating Appellant's [C]onfrontation [C]lause rights?

3. Did the trial court err in not issuing a subpoena duces tecum to Clarion University, thereby substantially hindering Appellant's ability to assemble evidence in his defense and violating his due process rights?

4. Pursuant to [ Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017),] was there error in designating the Appellant as a[n SVP], where there was no jury finding beyond a reasonable doubt to support that allegation?

Appellant's Brief at 4.

In his first two questions presented, Appellant argues that the trial court erred in excluding testimony related to Victim's prior sexual conduct. To the extent that these questions raise Confrontation Clause issues, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Tejada , 161 A.3d 313, 317 (Pa. Super. 2017) (citation omitted). To the extent that these questions raise subsidiary evidentiary issues, we review the trial court's determination for an abuse of discretion. See Commonwealth v. Mangel , 181 A.3d 1154, 1158 (Pa. Super. 2018) (citation omitted).

Appellant argues that the trial court improperly excluded evidence of Victim's past sexual conduct pursuant to Pennsylvania's Rape Shield Law, which provides that:

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 ... 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.

18 Pa.C.S.A. § 3104(a).

In this case, Appellant sought to admit evidence that he witnessed Victim perform oral sex on his roommate. Appellant argued that he confronted Victim about cheating on her boyfriend with his roommate and that he later informed Victim's boyfriend about the encounter. He testified that he verbally informed Victim's boyfriend of the encounter and then communicated about the encounter in a Facebook Messenger conversation with Victim's boyfriend. Appellant theorized that Victim accused him of sexual assault so that her boyfriend would not believe his story that he witnessed Victim engaging in sexual conduct with Appellant's roommate.

Appellant concedes that the evidence he sought to admit did not fall within the Rape Shield Law's lone statutory exception because the sexual conduct in question was not with him. Nonetheless, he contends that the trial court erred in excluding the evidence because "the Rape Shield Law may not be used to exclude relevant evidence showing witness[ ] bias or attacking [a witness'] credibility." Commonwealth v. Holder , 815 A.2d 1115, 1119 n.1 (Pa. Super. 2003) (citation omitted). Phrased differently, the Rape Shield Law violates the Confrontation Clause when it seeks to prohibit admission of evidence related to witness bias and/or credibility. See id.

The trial court must engage in a four-part inquiry if a defendant seeks admission of a victim's past sexual conduct under either the statutory exception or a constitutional exception to the Rape Shield Law. After a defendant provides notice that he or she wishes to introduce such evidence, see 18 Pa.C.S.A. § 3104(b), the trial court must determine if the proffered reason for introduction of past sexual conduct evidence is mere speculation or conjecture. Commonwealth v. Wall , 413 Pa.Super. 599, 606 A.2d 449, 457 (1992) (citation omitted). If the proffered evidence is not speculation or conjecture, the trial court must conduct an in camera hearing. See 18 Pa.C.S.A. § 3104(b). At the conclusion of that hearing

[t]he trial court must determine (1) if the evidence sought to be admitted is relevant to the accused's defense, (2) whether the evidence sought to be admitted is merely cumulative of evidence otherwise admissible at trial, and (3) whether the evidence which the accused wishes to introduce at trial is more probative than prejudicial.

Commonwealth v. Fernsler , 715 A.2d 435, 440 (Pa. Super. 1998) (citation omitted).

Because the trial court conducted the in camera hearing required under section 3104(b) we infer that the trial court determined that the evidence proffered by Appellant did not constitute speculation or conjecture. We agree with this determination as the evidence could be construed to show that Appellant notified Victim's boyfriend of the alleged sexual encounter between Victim and Appellant's roommate and that, thereafter, Victim contacted the police to discredit Appellant's allegation in the eyes of her boyfriend. So construed, the evidence Appellant sought to admit was relevant because it went to Victim's credibility. See Commonwealth v. Woeber , 174 A.3d 1096, 1104 (Pa. Super. 2017). Furthermore, the evidence was not cumulative of other evidence. To the contrary, the only way Appellant could establish that Victim fabricated the alleged attack was to explore Victim's prior sexual conduct, including Appellant's communications with Victim's boyfriend. The trial court, however, found that the evidence was more prejudicial than probative. As such, the trial court found that excluding the evidence under the Rape Shield Law did not violate Appellant's Confrontation Clause rights. After careful consideration, we conclude that the trial court erred in finding that the unfair prejudice associated with the proffered evidence outweighed its probative value.

Our prior case law illustrates the source of the trial court's order. In Commonwealth v. Eck , 413 Pa.Super. 538, 605 A.2d 1248 (1992), this Court explained the balance between the probative value of evidence of past sexual conduct and the prejudicial effect of such proof. In Eck , the defendant was accused of sexually assaulting his foster brother. Like in the case at bar, the defendant argued that the victim fabricated the incident and attempted to introduce evidence of the victim's prior sexual conduct to attack his credibility. The trial court held that the evidence was inadmissible under the Rape Shield Law. This Court vacated that decision and remanded for a determination of whether the probative value of the evidence outweighed its risk of unfair prejudice. This Court emphasized that the probative value need only outweigh the risk of unfair prejudice. Id. at 1254. That is, to constitute unfair prejudice, the evidence must "inflame the minds of the jurors." Id. This distinction is crucial because evidence of the victim's past sexual conduct is always prejudicial. See Commonwealth v. Johnson , 389 Pa.Super. 184, 566 A.2d 1197, 1199 (1989) (en banc ), aff'd , 536 Pa. 153, 638 A.2d 940 (1994).

This Court has found violations of the Confrontation Clause in cases that involve the exclusion of evidence offered to establish a sex assault victim's motive to fabricate an attack. In Fernsler , the defendant sought to "introduce evidence that the child victim, his son, possessed a motive to fabricate the charges ... to escape the possibility of future sex assault charges based on the son's conduct towards his half[-]sister." Fernsler , 715 A.2d at 440 (cleaned up). The trial court held that excluding the evidence would violate the defendant's Confrontation Clause rights. The Commonwealth appealed, arguing that admission of the evidence was barred by the Rape...