Commonwealth v. Rogers, E., Aplt.

C
                                    [J-90-2020]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT

   BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,                    :   No. 8 EAP 2020
                                                 :
                      Appellee                   :   Appeal from the Judgment of Superior
                                                 :   Court entered on 9/25/19 at No. 342
                                                 :   EDA 2017 affirming the judgment of
                 v.                              :   sentence entered on 7/2/15 in the Court
                                                 :   of Common Pleas, Philadelphia County,
                                                 :   Criminal Division at Nos. CP-51-CR-
ERIC ROGERS,                                     :   0000721-2013, CP-51-CR-0001717-
                                                 :   2013, CP-51-CR-0005681-2012, CP-
                      Appellant                  :   51-CR-0007377-2012, and CP-51-CR-
                                                 :   0007563-2012
                                                 :
                                                 :
                                                 :   ARGUED: October 21, 2020



                                        OPINION


JUSTICE SAYLOR                                                   DECIDED: May 18, 2021


      The primary issue raised in this discretionary appeal is whether the trial court

properly excluded evidence that two of Appellant’s rape victims had a history of

prostitution convictions, where Appellant’s defense included a contention that the

encounters were consensual instances of prostitution.


                                            I.

      Section 3104 of Pennsylvania’s Crimes Code, referred to as the Rape Shield

Law (the “shield law”), is designed to protect alleged rape victims in the context of a

criminal trial. Subject to limited exceptions, it excludes evidence of an alleged victim’s

past sexual history. Its purpose is to prevent the trial from shifting its focus from the
defendant’s guilt or innocence to the victim’s reputation or moral virtue.            See

Commonwealth v. Johnson, 

536 Pa. 153

, 158, 

638 A.2d 940

, 942 (1994) (citing

Commonwealth v. Majorana, 

503 Pa. 602

, 

470 A.2d 80

(1983)). The law provides:

      (a) General rule.--Evidence of specific instances of the alleged victim’s
      past sexual conduct, past sexual victimization, allegations of past sexual
      victimization, 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 of any offense listed in subsection (c)
      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. §3104(a). Under subsection (c), the above provision applies, inter alia, in

cases where the defendant is charged under Chapter 31 of the Crimes Code, relating to

sexual offenses. See

id. §3104(c).1

In Philadelphia,

over the course of approximately ten months beginning in May

2011, Appellant physically and sexually assaulted five women – two of whom were

minors – and stole various items of personal property from them.           Appellant was

charged with dozens of crimes, including multiple counts of rape, robbery, and

involuntary deviate sexual intercourse. The charges were consolidated for trial.

      In a pretrial motion in limine, Appellant sought permission to introduce evidence

that two of the three adult victims, A.P. and M.H., had a history of convictions for

1 Subsection (a) also applies in the context of prosecutions under the following aspects
of the Crimes Code: Chapter 27 (relating to assault), Chapter 29 (relating to
kidnapping), Chapter 30 (relating to human trafficking), Section 4302 (relating to incest),
Section 4304 (relating to endangering welfare of children, but only if the offense
involved sexual contact with the victim), Section 6301(a)(1)(ii) (relating to corruption of
minors), Section 6312(b) (relating to sexual abuse of children), Section 6318 (relating to
unlawful contact with a minor), and Section 6320 (relating to sexual exploitation of
children). See

id. §3104(c).

Subsection (b)

relates to the procedures for a defense proffer, an in-camera review
where warranted, and the court’s issuance of findings as of record. See

id. §3104(b).

[J-90-2020] –

2
prostitution in the general area where the incidents occurred. He wanted to use such

proofs to support the defense theory, as to those victims, that his encounters with them

were consensual acts of prostitution. In his filing, labeled as a combined motion and

memorandum of law, Appellant acknowledged the shield law, but maintained it did not

exclude the evidence in question. He also claimed that exclusion would violate his

rights under the United States and Pennsylvania Constitutions. The common pleas

court, per Judge Anders, denied the motion in relevant part, noting that none of the

convictions related to encounters with Appellant. See N.T., Feb. 9, 2015, at 5-6.2

       The matter proceeded to a consolidated, four-day waiver trial before Judge

Woelpper in February 2015. At trial, the victims testified and described the attacks,

including the threats of violence and actual violence Appellant used to subdue his

victims – including tackling, punching, and choking. Several of the victims indicated

that, after Appellant assaulted them, he stole personal property from them, such as

credit cards, identification cards, cell phones, and cash. With regard to the three adult

victims, the Commonwealth presented evidence that DNA matching Appellant’s was

recovered from the victims’ clothing or bodies shortly after each attack.

       Appellant testified in his defense. He admitted to having sexual relations with all

of the victims, but portrayed it as consensual in each instance. He denied that he

physically harmed, or stole property from, any of them.        Further, he described the


2 In the same motion, Appellant also requested permission to introduce certain evidence
concerning the third adult victim, C.B. That aspect of the motion is not presently at
issue. As well, no sexual-history evidence concerning the two minor victims is in issue.

Separately, the record indicates that some of the evidence pertained to alleged
instances of prostitution that occurred after the offenses committed by Appellant. See
N.T., Feb. 10, 2015 (Motion), at 6, 10; Commonwealth v. Rogers, Nos. CP-51-CR-5861-
2012, et al., Post-Sentence Motion dated July 13, 2015 (C.P. Phila.) (“Appellant’s Post-
Sentence Motion”), at ¶6(c). This facet of the dispute is discussed below.


                                     [J-90-2020] - 3
encounters with the adult victims as sex-for-money transactions. He claimed to have

propositioned A.P. and that she agreed she wanted to “make some money.” N.T., Feb.

11, 2015, at 103. As for M.H., Appellant testified that she was walking back and forth in

a manner suggestive of solicitation. See

id. at 104.

       The court, sitting as fact-finder, convicted Appellant of rape, aggravated assault,

robbery, and related offenses as to all three of the adult victims. The court also found

him guilty of rape and other offenses as to one of the minor victims, and corruption of

minors with regard to the other minor victim. See N.T., Feb. 19, 2015, at 3-4. Appellant

was classified as a sexually-violent predator and sentenced to an aggregate prison term

of 55-170 years. See N.T., July 2, 2015, at 50. Appellant’s post-sentence motion was

denied.3

       In early 2017, after his direct appeal rights were reinstated nunc pro tunc,

Appellant lodged his appeal and filed a Rule 1925(b) concise statement. See Pa.R.A.P.

1925(b).   The common pleas court issued two opinions, one by Judge Woelpper

summarizing the trial evidence and addressing claims relating to evidentiary weight and

sentencing discretion, see Commonwealth v. Rogers, Nos. CP-51-CR-5861-2012, et al.,

slip op. (C.P. Phila. May 1, 2018), and the other by Judge Anders concerning the denial

of Appellant’s pretrial motion in limine. See Commonwealth v. Rogers, Nos. CP-51-CR-

5861-2012, et al., slip op. (C.P. Phila. May 7, 2018).

       In the latter opinion, the court relied on the Rape Shield Law as the basis for its

determination that the proffered evidence was properly excluded. The court explained

that, while exculpatory proofs are not barred by the statute, that precept was

inapplicable in the present case:

3 In his post-sentence motion, Appellant raised weight-of-the-evidence claims as to
some of his convictions, and asserted that his sentence was excessive. He also
challenged Judge Anders’ ruling on his motion in limine.


                                      [J-90-2020] - 4
       Defendant sought to introduce evidence that [two] of the rape victims had
       prior convictions for prostitution. All of these convictions were for sexual
       conduct with persons other than Defendant. As in [Commonwealth v.
       Jones, 

826 A.2d 900

(Pa. Super. 2003) (en banc)], these convictions did
       not exculpate Defendant and were inadmissible to prove that any of the
       victims consented to sexual intercourse with Defendant. For similar
       reasons, the convictions were also inadmissible to test the credibility of the
       [two] rape victims because the convictions were irrelevant to the defense
       of consent and were more prejudicial than probative.


Id. at 3-4.

       On appeal, Appellant renewed, inter alia, his challenge to the exclusion of the

prostitution evidence, as well as his contention that the verdicts were against the weight

of the evidence.

       A three-judge panel of the Superior Court affirmed the judgment of sentence in a

non-precedential opinion. See Commonwealth v. Rogers, No. 342 EDA 2017, 

2019 WL

4686960

, at *8 (Pa. Super. Sept. 25, 2019). As to the issue involving the shield law, the

panel noted that Appellant urged it to reexamine its precedent in Jones and

Commonwealth v. Dear, 

342 Pa. Super. 191

, 

492 A.2d 714

(1985), both of which had

held that a complainant’s history of prostitution convictions involving third persons, when

offered to prove consent with regard to the defendant, is inadmissible under the Rape

Shield Law. See

id. at 202, 492

A.2d at 720; 

Jones, 826 A.2d at 909

(indicating that

such evidence “is not probative of the complainant’s willingness to commit sexual acts

with [the defendant], for hire or for any other reason”).4 The panel stated that it lacked


4 The Superior Court referred to all three adult victims when discussing this claim. See
Rogers, 

2019 WL 4686960

, at *4. As noted, however, Appellant only sought to
introduce prostitution-history evidence with respect to A.P. and M.H., not C.B. In his
brief, Appellant occasionally makes reference to C.B.’s non-prostitution sexual history.
See, e.g., Brief for Appellant at 21 (referring to evidence of C.B.’s “relatively
contemporaneous sexual encounter with another unknown man”). However, there is no
issue before this Court with regard to evidence concerning C.B. See generally Brief for
Commonwealth at 20 n.4.


                                      [J-90-2020] - 5
the power to overrule a prior decision of the Superior Court except where there is

intervening authority by this Court calling that decision into question – and that

Appellant did not assert any such intervening authority existed. See

id. at *4

(quoting

Commonwealth v. Pepe, 

897 A.2d 463

, 465 (Pa. Super. 2006)).

       The panel also dismissed Appellant’s evidentiary-weight claim as waived on the

basis that he had failed, in his Rule 1925(b) statement, to specify which verdicts were

contrary to the weight of the evidence, or what proofs at trial so contradicted the

complainants’ testimony that the verdicts shocked one’s sense of justice. See

id. at *5

(quoting Commonwealth v. Freeman, 

128 A.3d 1231

, 1248-49 (Pa. Super. 2015)

(indicating a concise statement “which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement”)). See

generally Commonwealth v. Brown, 

538 Pa. 410

, 438-39, 648, A.2d 1177, 1189 (1994)

(noting a new trial may only be granted on a weight-of-the-evidence claim where the

“verdict is so contrary to the evidence as to shock one’s sense of justice, and the award

of a new trial is imperative so that right may be given another opportunity to prevail”

(internal quotation marks and citation omitted)).

       This Court allowed further review to determine whether the exclusion of evidence

concerning A.P.’s and M.H.’s prostitution convictions denied Appellant his right to cross-

examine witnesses and present a defense where Appellant claimed at trial that the

encounters were “prostitution transactions.” Commonwealth v. Rogers, ___ Pa. ___,

___, 

224 A.3d 1263

, 1264 (2020) (per curiam). We also granted review as to the

question of whether the Superior Court erred in holding that Appellant’s evidentiary-

weight claim was waived. See

id.

[J-90-2020] – 6

                                            II.

      The admissibility of proffered evidence generally depends on its relevance and

probative value. See Commonwealth v. Drumheller, 

570 Pa. 117

, 135, 

808 A.2d 893

,

904 (2002). Even where evidence is probative, it may be excludable for policy reasons.

For example, evidence may be barred under the Pennsylvania Rules of Evidence where

there is a danger of “unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. As

illustrated by the present case, it may also be excluded based on policy as embodied in

a legislative enactment.

      Rulings on admissibility are committed to the common pleas court’s discretion

and will only be reversed on appeal where there is an abuse of discretion.             See

Commonwealth v. Maconeghy, 

642 Pa. 770

, 778, 

171 A.3d 707

, 712 (2017). An abuse

of discretion occurs when the law is overridden or misapplied, or the judgment

exercised was either manifestly unreasonable or the product of partiality, prejudice,

bias, or ill will. See Commonwealth v. Spiewak, 

533 Pa. 1

, 7 n.4, 

617 A.2d 696

, 699 n.4

(1992). Here, the contention is that the Rape Shield statute should not have been

applied under the circumstances. This raises an issue of law as to which our review is

de novo and plenary. See Commonwealth v. Renchenski, 

616 Pa. 608

, 614-15, 

52

A.3d 251

, 255 (2012).

      Initially, it is not entirely clear from Appellant’s pretrial motion whether he sought

permission to introduce documentary evidence concerning the victims’ alleged

prostitution convictions, or merely permission to cross-examine them about those

matters. See Commonwealth v. Rogers, Nos. CP-51-CR-5861-2012, et al., Defendant’s

Motion & Memorandum of Law in Support Thereof to Admit Evidence Pursuant to the

Pennsylvania Rape Shield Statute dated Oct. 21, 2015, at ¶6 (C.P. Phila.) (stating in


                                     [J-90-2020] - 7
general terms that “the defense seeks admission of evidence of the complainants’

sexual conduct to corroborate [the defense’s] contention that in the case[s] of [A.P.] and

[M.H.] the sexual contact[s] were consensual acts of prostitution”).5 The motions court

understood the request as directed to cross-examination of the complainants during the

prosecution’s case in chief, and Appellant did not suggest it was more expansive in

response to the court’s invitation to make any corrections on the record. See N.T., Feb.

9, 2015 (Motion), at 5-6. Further, there is nothing in the parties’ present advocacy

suggesting, based on any identified aspect of the record, that the request should be

viewed as having extended beyond cross-examination. Accordingly, we will proceed

from the premise that Appellant challenges the motions court’s denial of his request as

framed in terms of cross-examination of A.P. and M.H., as well as the Superior Court’s

affirmance of the denial.6

       The purpose of the Rape Shield Law has been explained in prior decisions and

need not be repeated at length. To summarize, it is intended to “prevent a trial from

shifting its focus from the culpability of the accused towards the virtue and chastity of

the victim.”   Commonwealth v. Allburn, 

721 A.2d 363

, 366-67 (Pa. Super. 1998)

(internal quotation marks and citations omitted).      This protective measure is salient

where defendants attempt to utilize evidence of the complainant’s alleged promiscuity to

bolster their claim of consent. See, e.g., Commonwealth v. Widmer, 

446 Pa. Super.

5The

motion, which is undated, was not docketed until October 2015. However, it is
apparent that Judge Anders reviewed it before the pretrial hearing on February 9, 2015.

6 The parties briefly discussed the possibility that the evidence could also be used to
rehabilitate Appellant as a witness should he be cross-examined about his prostitution
defense. See N.T., Feb. 10, 2015 (Motion), at 6-8. In light of our analysis below, the
resolution of this appeal would not be different regardless of whether Appellant sought
to use the victims’ alleged prostitution history in connection with rehabilitation and/or
sought to introduce documentary proofs.


                                     [J-90-2020] - 8
408, 422, 

667 A.2d 215

, 222 (1995), rev’d on other grounds, 

547 Pa. 137

, 

689 A.2d 211

(1997). Thus, the shield law “prevent[s] a sexual assault trial from degenerating into an

attack upon the victim’s reputation for chastity.” Commonwealth v. Berkowitz, 

537 Pa.

143

, 151, 

641 A.2d 1161

, 1165 (1994) (citing cases).7 It additionally removes obstacles

to the reporting of sex crimes. Accord Williams v. State, 

681 N.E.2d 195

, 200 (Ind.

1997).

         With that said, the shield law may not be applied in a manner that violates a

defendant’s constitutional right to a fair trial, including his right to present evidence and

cross-examine witnesses.        See 

Spiewak, 533 Pa. at 11

, 617 A.2d at 701

(“Notwithstanding these worthy legislative aims, rules excluding evidence cannot be

mechanistically applied to abridge a defendant’s right of confrontation by denying

admission of highly reliable and relevant evidence critical to his defense.”). In this

regard, the Sixth Amendment and Article I, Section 9 of the state Charter both protect a

defendant’s right to be confronted with adverse witnesses. See U.S. CONST. amend. VI

(“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him[.]); PA. CONST. art. I, §9 (same). The federal right to “be

confronted with” such witnesses has been incorporated to the States and includes the

right to conduct reasonable cross-examination. See Olden v. Kentucky, 

488 U.S. 227

,

231, 

109 S. Ct. 480

, 483 (1988) (per curiam); Davis v. Alaska, 

415 U.S. 308

, 315-16, 

94

S. Ct. 1105

, 1110 (1974); Commonwealth v. Williams, 

624 Pa. 183

, 189, 

84 A.3d 680

,


7 See also Priest v. Rotary, 

98 F.R.D. 755

, 761 (N.D. Cal. 1983) (recognizing that at one
time rape victims “ran the risk of finding their own moral characters on trial during the
prosecution of their assailants”). See generally 75 C.J.S. Rape §96 (2020) (indicating
that rape shield laws reflect the view that evidence of a complainant’s prior sexual
conduct is irrelevant or, if relevant, substantially outweighed by its prejudicial effect);
Rachel M. Kane, 5 SUMM. PA. JUR. 2D Criminal Law §15:22 (2d ed. & 2020 update)
(relating to the general purpose of the rape shield statute).


                                      [J-90-2020] - 9
684 (2014). This is true of the state provision as well. See Commonwealth v. Gribble,

550 Pa. 62

, 83-84, 

703 A.2d 426

, 437 (1997), abrogated on other grounds,

Commonwealth v. Burke, 

566 Pa. 402

, 413, 

781 A.2d 1136

, 1142 (2001).8

      At the same time, the confrontation right is not absolute.      It guarantees “an

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.”         United States v.

Owens, 

484 U.S. 554

, 559, 

108 S. Ct. 838

, 842 (1988) (internal quotation marks and

emphasis omitted). Thus, trial courts “retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive or only marginally relevant.”

Delaware v. Van Arsdall, 

475 U.S. 673

, 679, 

106 S. Ct. 1431

, 1435 (1986).

      In terms of the present controversy, our intermediate court has noted that “Rape

Shield laws, if rigidly construed, could impermissibly encroach upon a defendant’s right

to confront and cross-examine witnesses which is secured under the United States and

Pennsylvania Constitutions.” Commonwealth v. Nieves, 

399 Pa. Super. 277

, 287, 

582

A.2d 341

, 346 (1990). As a consequence, Pennsylvania courts have sought to balance

the defendant’s fundamental right to a fair trial, including his right to confront his

accuser, against the state’s interests embodied in the statute (as outlined above) and in

the rules of evidence. Accord Commonwealth v. Quartman, 

312 Pa. Super. 349

, 353,

458 A.2d 994

, 996 (1983). Thus, courts have found the law unconstitutional as applied

in circumstances where the defendant seeks to introduce evidence for reasons



8  As there is no developed advocacy in the parties’ briefs suggesting the state
guarantee is more expansive than its federal counterpart with regard to the asserted
right in this case, for present purposes they will be considered coterminous.


                                    [J-90-2020] - 10
unrelated to impugning the complainant’s character, and the probative value of that

evidence outweighs the danger of unfair prejudice.

      In Commonwealth v. Majorana, 

503 Pa. 602

, 

470 A.2d 80

(1983), this Court held

that evidence of the complainant’s act of consensual intercourse, which was said to

have occurred two hours before the time she claimed she was raped, could not be

barred by the shield law. The defense evidence was designed to provide an alternate

explanation for the presence of live sperm cells in the complainant’s vagina as

determined by medical testing shortly after the alleged incident. This Court noted that

“[a]dmitting such evidence for the limited purpose of denying the act charged properly

balances the laudable goals of the statute and an accused’s fundamental right to

present in defense his own version of the facts under both the Sixth Amendment to the

Federal Constitution and Article I, Section 9 of our Pennsylvania Constitution.”

Id. at

605, 470

A.2d at 81.

      In Spiewak, the defendant was accused of committing a sexual offense with his

step-daughter when she was fifteen years old, and the complainant’s credibility was a

critical issue in the case. Spiewak admitted the encounter occurred but claimed the

victim was over sixteen at the time. The prosecution adduced evidence that she had

had a sexual encounter with an unnamed older man approximately one month before

her sixteenth birthday. In response, the defendant suggested an inference that that

older man was not him but a friend of his. To support the inference, he sought to cross-

examine the complainant concerning her testimony at an earlier proceeding in which

she stated that she had engaged in sexual conduct with Spiewak’s friend in an incident

similar to the one at issue. The trial court disallowed the cross-examination under the

shield law, and this Court reversed. Noting Majorana had established that the shield

law cannot be utilized to prohibit relevant, potentially-exculpatory evidence, the Spiewak


                                    [J-90-2020] - 11
Court held that the trial court’s ruling abridged the defendant’s right to present his own

version of the facts in his defense. See 

Spiewak, 533 Pa. at 8-9

, 617 A.2d at 699-700.9

See generally Commonwealth v. McGowan, 

535 Pa. 292

, 295, 

635 A.2d 113

, 115

(1993) (explaining that proofs tending to show someone else committed the charged

offense are relevant and admissible).

      Sexual-history evidence has also been permitted when proffered to reveal the

complainant’s bias or hostility toward the defendant, or that the complainant otherwise

had a motive to fabricate or color the accusation.        See, e.g., Commonwealth v.

Ruggiano, 

14 A.3d 844

, 847 (Pa. Super. 2010) (holding that the Rape Shield Law did

not preclude sexual-history evidence offered to show that the witness sought to falsely

accuse the defendant as a way of deflecting blame for the witness’s own conduct),

vacated on other grounds, 

611 Pa. 368

, 

26 A.3d 473

(2011) (per curiam).10

      In Commonwealth v. Black, 

337 Pa. Super. 548

, 

487 A.2d 396

(1985), for

example, the defendant was accused of having sexually victimized his 13-year-old

daughter. Black testified that the alleged incident never occurred. He also sought to

show his daughter had a motive to fabricate the story. In particular, he sought to cross-

examine her concerning her alleged ongoing consensual sexual relationship with her

15-year-old brother, which ended when the brother left the family home. This line of

inquiry supported the defense theory because: the daughter made her first complaint


9 The Spiewak Court did not expressly state that application of the statute to bar the
proffered evidence was unconstitutional. The implication is clear from context, however,
because Spiewak relied on Majorana – which reached its holding based on the Sixth
Amendment and Article I, Section 9 – and there is no evident non-constitutional basis
for the Spiewak Court not to have applied the shield law.

10In its per curiam order, this Court acknowledged that an exception to the Rape Shield
Law exists in relation to evidence showing the bias or motive of the witness in question.
See

id. at 368, 26

A.3d at 473.


                                    [J-90-2020] - 12
against Black shortly after the brother left home due to violent arguments the brother

was having with Black; the complainant admitted she wanted her brother to return

home; and the brother inquired concerning moving back home once Black was arrested

and removed. As the extent of the complainant’s potential bias against Black – and

thus her motive to fabricate – could only be explored through such cross-examination,

the intermediate court held that the cross-examination was permissible notwithstanding

the shield law in view of the defendant’s Sixth-Amendment right to confront adverse

witnesses. See

id. at 558, 548

A.2d at 401-02 (observing, as well, that the cross-

examination was not offered to show general moral turpitude or defect of character);

see also Commonwealth v. Eck, 

413 Pa. Super. 538

, 550-51, 

605 A.2d 1248

, 1255

(1992) (where the jury had to weigh the credibility of the victim and the defendant,

finding error in the trial court’s exclusion of evidence of the victim’s sexual history which

could have revealed a motive to invent the charges (quoting Commonwealth v. Erie,

361 Pa. Super. 44

, 52-53, 

521 A.2d 464

, 468 (1987))); Commonwealth v. Fernsler, 

715

A.2d 435

, 442 (Pa. Super. 1998) (permitting sexual-history evidence which could

demonstrate the accused had a motive to fabricate the allegations to gain favorable

treatment while in a juvenile sex-offender program).11

       On the threshold question of whether the prostitution evidence promoted by

Appellant is statutorily precluded, we note initially that some of the evidence pertained

to alleged instances of prostitution in the post-offense timeframe. See supra note 2. An

issue thus arises whether the evidence concerns “past sexual conduct” for purposes of

the shield law. The statute is ambiguous on this point because, as a textual matter,

“past” could reasonably mean either prior to trial or prior to the offense. See Trizechahn


11 The Black and Eck opinions were cited with approval in this Court’s per curiam order
in Ruggiano. See supra note 10.


                                      [J-90-2020] - 13
Gateway LLC v. Titus, 

601 Pa. 637

, 653, 

976 A.2d 474

, 483 (2009) (explaining that an

ambiguity exists when there are at least two reasonable interpretations of the text). We

will therefore ascertain the meaning that best aligns with legislative intent.      See 1

Pa.C.S. §1921(a) (indicating that the object of all interpretation and construction of

statutes is to ascertain and effectuate legislative intent); Commonwealth v. Cullen-

Doyle, 

640 Pa. 783

, 787, 

164 A.3d 1239

, 1242 (2017) (same).12

      It makes little difference in terms of the shield law’s purposes whether the

evidence in question relates to conduct which occurred before or after the alleged

offense. The shield law reflects the General Assembly’s judgment that, in relation to the

issue of consent with the defendant, a complainant’s sexual history with third parties

should not be aired. This objective would be ill served if the victim’s excludable sexual

history were limited to that which occurred prior to the alleged offense. This is true

because evidence of post-offense sexual conduct could lead to the same types of

distractions as proofs concerning pre-incident conduct – most notably, the improper

shifting of the trial’s focus away from the defendant’s guilt or innocence and toward the

complainant’s character. See generally Del. Cty. v. First Union Corp., 

605 Pa. 547

, 561,

992 A.2d 112

, 121 (2010) (noting that the practical results of a particular interpretation

may be considered when construing statutory text (quoting Lehigh Valley Coop.

Farmers v. Bureau of Emp’t Sec., 

498 Pa. 521

, 526, 

447 A.2d 948

, 950 (1982))).

Additionally, although the statute appears in the Crimes Code, it is remedial rather than

penal. Consequently, the textual reference to the alleged victim’s “past” conduct should

be read broadly. See 1 Pa.C.S. §1928(c) (directing that, subject to certain enumerated


12 Appellant does not advance that the General Assembly intended for acts of illegal
prostitution to be excluded from the statute’s protective scope, see Brief for Appellant at
32 n.4 (indicating that Appellant “takes no position” on that question), and there is no
reason based in its text to reach that conclusion.


                                     [J-90-2020] - 14
exceptions not implicated here, statutory provisions should be “liberally construed to

effect their objects and to promote justice”). Understood broadly, “past sexual conduct”

signifies sexual conduct which occurred at any time in the past, meaning, prior to trial

rather than solely prior to the alleged sexual assault.

       Under our broad construction, there is little doubt that the proofs offered by

Appellant were statutorily precluded.           Assuming the complainants engaged in

prostitution with third parties at any time before trial, those encounters qualify as their

“past sexual conduct,” and there is no suggestion that Appellant himself was involved in

any of the prior acts of prostitution.

       Given this state of affairs, Appellant seeks admission of the evidence on

constitutional grounds by analogizing the present case to those in which courts have

determined that otherwise-barred proofs may be admitted as bearing on the question of

the complainant’s credibility. He argues that here, the defense theory – consistent with

what Appellant told the police – was that A.P. and M.H. gave their financially-induced

consent to the encounter, and that he should have been allowed to put evidence before

the fact-finder that they had engaged in prostitution with others. Summarizing a litany of

extra-jurisdictional cases which have announced a variety of rules and applied them

with varying results, see Brief for Appellant at 27-48, Appellant contends we should

follow the lead of states that have adopted a liberal approach to admissibility in order to

avoid injury to his constitutional rights. See

id. at 48-49.

       Appellant additionally maintains that the evidence’s probative value outweighed

its prejudicial effect in the circumstances. He emphasizes that the balancing test in

reality deals, not with prejudice as such – as most relevant trial evidence is, by design,

prejudicial to the opposition – but with the risk of unfair prejudice. See Pa.R.E. 403

(permitting the exclusion of relevant evidence if its probative value is outweighed by a


                                         [J-90-2020] - 15
danger of, among other things, unfair prejudice). Appellant indicates that, to embody

that risk, the evidence must “inflame the mind” of the fact-finder. Brief for Appellant at

50 (quoting 

Eck, 413 Pa. Super. at 549

, 605 A.2d at 1254 (stating that otherwise-

admissible evidence may be excluded if “it would so inflame the minds of the jurors that

its probative value is outweighed by unfair prejudice”)). He argues that that standard

was not met here as the complainants’ alleged involvement in the sex-for-hire trade was

“just business” and unrelated to an accusation of promiscuity.

Id. at 52.

       Appellant indicates that the reported Pennsylvania decision which is most

relevant to the present matter is the intermediate court’s ruling in Dear, and he urges

this Court to disapprove or limit that decision. See

id. at 54.

We will therefore briefly

review that decision.13

       In Dear, the defendant was charged with rape. He testified that he was solicited

by the victim and knew her to be a prostitute. He sought to introduce proofs that the

victim had three prior convictions for solicitation of prostitution in the same area where

the alleged rape occurred. The common pleas court excluded the evidence under the

shield law, and Dear was found guilty. On appeal, the Superior Court observed that the

legislative objective of protecting a complainant from undue harassment must be

balanced against the defendant’s fundamental right to a fair trial. In such balancing, the

court indicated, a victim’s sexual conduct with third parties is generally of only slight

relevance to the issue of consent with the defendant. Thus, the court continued, absent

extraordinary circumstances it should be excluded per the statute. See Dear, 

342 Pa.

13

Appellant also asks this Court to disapprove or limit the Superior Court’s decision in
Jones. See

id. That dispute primarily

dealt with the statutory-construction issue which
we have resolved above – i.e., whether “past” means prior to trial or only prior to the
alleged offense. See 

Jones, 826 A.2d at 903

. Consistent with our determination, the
court held that “past sexual conduct” subsumes all such conduct prior to trial. See

id. at
908.

                                    [J-90-2020] - 16
Super. at 

198, 492 A.2d at 718

(quoting Commonwealth v. Boone, 

319 Pa. Super. 358

,

360-62, 

466 A.2d 198

, 199-200 (1983)). As no such circumstances existed, the court

affirmed the exclusion of the evidence. See

id. at 199, 492

A.2d at 718. The court also

distinguished Black, expressing that that case concerned proofs tending to demonstrate

the complainant’s bias and hostility toward the defendant, rather than consent. See

id.

at 201-02, 492

A.2d at 719-20.

       The question becomes, then, whether the shield law’s prohibition must yield,

under the Sixth Amendment and Article I, Section 9, to Appellant’s ability to question

A.P. and M.H. concerning their acts of prostitution with third parties. As reflected in the

cases reviewed above, the circumstances in which Pennsylvania courts have admitted

evidence notwithstanding the shield law involve proofs offered to demonstrate factual

premises other than consent – such as that the conduct was committed by someone

other than the defendant, the complainant harbored bias and hostility toward the

defendant which would induce him or her to fabricate or color testimony, or that the

complainant otherwise had an ulterior motive to manufacture charges.

       In some limited situations, prostitution evidence may be germane to these other

issues. In Commonwealth v. Joyce, 

415 N.E.2d 181

(Mass. 1981), for instance, the

police approached a car in which the defendant and the complainant were both

undressed, and the latter accused the former of raping her. The defense theory was

that the complainant’s previous prostitution arrests – which involved factual

circumstances similar to the incident in question – had occurred shortly before the

incident, and the complainant was motivated to claim (falsely) that she was raped in

order to avoid yet another prostitution arrest. See

id. at 187.

       This matter is not at all like Joyce. Here, both A.P. and M.H. initiated contact

with the police, and the trial evidence indicated they had been physically beaten shortly


                                     [J-90-2020] - 17
before reporting the crimes. See N.T., Feb. 9, 2015 (Trial), at 68-70 (M.H.); N.T., Feb.

10, 2015 (Trial), at 133-36 (A.P.).14     Thus, Appellant’s objective in promoting the

evidence is limited to suggesting that, because the victims had been engaged in

prostitution in the same geographic area on other occasions, the fact-finder should give

more weight to his testimony that his own encounters with them entailed prostitution.

The prostitution evidence, therefore, amounted to propensity evidence – that is,

evidence of the complainants’ prior bad acts promoted in an effort to show that, on the

occasion in question, they acted in accordance with their character. While propensity

evidence may have some limited probative value, it is inadmissible to demonstrate a

person’s character in order to show conduct conforming therewith. See Pa.R.E. 404(b);

Commonwealth v. Busanet, 

618 Pa. 1

, 43, 

54 A.3d 35

, 61 (2012) (citing Commonwealth

v. Sherwood, 

603 Pa. 92

, 114, 

982 A.2d 483

, 497 (2009)).

       Appellant denies that he sought introduction of the evidence solely to establish

that the complainants acted in conformity with their conduct on other occasions. He

couches his reason for promoting the prostitution evidence as supporting his “defense

of financially-induced consent.” Brief for Appellant at 17. The argument fails, however,

as it is internally inconsistent:    the evidence was relevant only insofar as the

complainants gave their “financially-induced consent” to third parties on other

occasions. Indeed, “absent [Appellant’s] disavowed propensity theory, he is left with no

theory of relevance at all.” Amicus Brief of the Office of Attorney General, at 4.

       In light of the above, we conclude, consistent with Dear, that the proofs offered

by Appellant are the very types of items that the Rape Shield Law is designed to

preclude. They would cast aspersions upon the moral character of the complainants


14The evidence of the complainants’ injuries is in obvious tension with the premise that
the encounters were consensual.


                                     [J-90-2020] - 18
and do little to prove consent at the relevant time – even if the victims had engaged in

prostitution on other occasions. Accord State v. Higgins, 

821 A.2d 964

, 972 (N.H. 2003)

(indicating that a person’s “status as a prostitute” does not imply that “she will accept

every opportunity that comes along to engage in sexual relations or relent to the desires

of any paying customer, regardless of her motivation for engaging in prostitution in the

first instance”). See generally State v. Green, 

260 S.E.2d 257

, 261 (W. Va. 1979)

(observing that a victim’s “previous sexual conduct with other persons has very little

probative value about her consent to intercourse with a particular person at a particular

time”). Further, the evidence was not offered to prove that another person committed

the crimes or that the complainants harbored hostility toward Appellant or otherwise had

a motive to fabricate or exaggerate the charges.

       Finally, Appellant was not prohibited from establishing a consent defense. He

testified concerning the events and, as noted, portrayed them all as consensual. On

this record there is no reason to believe that the fact-finder was impeded in reconciling

the conflict between Appellant’s testimony and the other trial evidence based on

judgments concerning the credibility or veracity of that evidence. In brief, the shield law

barred the evidence and the statutory prohibition was not overridden in this case by

Appellant’s constitutional rights.


                                            III.

       The last issue is whether the Superior Court erred when it found that Appellant’s

weight-of-the-evidence claim was waived for lack of development in his Rule 1925(b)

concise statement. See Pa.R.A.P. 1925(b). As discussed, Appellant included such

contention in his post-sentence motion. See supra note 3. In that motion, he stated:

       7. [Appellant] contends that the testimony of [A.P.] was so contradictory
       and inconsistent that the verdict was against the weight of the evidence.
       [A.P.] gave two different accounts of how she arrived at the location where

                                     [J-90-2020] - 19
       she claimed to be assaulted, two different locations where the assault
       occurred, two different explanations for how she sustained her injuries,
       and inconsistent testimony of how or when her property was lost or taken.

       8. [Appellant] likewise contends that the testimony of [M.H.] was against
       the weight of the evidence. The testimony of [M.H.] was incredible based
       on inconsistencies, her drug usage, and that [sic] it generally made no
       sense. [Appellant] contends that the circumstances of how and when
       [M.H.] reported the incident further call her credibility into question. . . .

       9. [Appellant] contends that the evidence presented as to [C.B.] was . . .
       against the weight of the evidence. [Appellant] concede[d] that he had
       consensual sexual relations with [C.B.], which he claimed was as a result
       of an agreement to commit prostitution, but denied beating her. During
       her testimony, [C.B.] maintained that she did not know her assailant and
       that their conversation was limited prior to the assault. It is undisputed
       that [C.B.] was “a little tipsy” celebrating her birthday, and lived a few
       blocks away from the area of the physical assault. [Appellant] spoke to
       the police and testified that he told them her name, that it was her
       birthday, that she had been drinking, and that the sexual interaction
       happened not in an alley, but on a porch, in a location that [Appellant]
       contends was very close to [C.B.’s] home. [Appellant] also gave the
       amount of money paid to [C.B.] as $40.00, taken from the MAC machine
       as described by [C.B.]; this was coincidentally the amount of money [C.B.]
       claimed was taken. When questioned by police, [Appellant] gave a
       statement containing all of the information about [C.B.], which he testified
       to at trial. [Appellant] contends that the only way he could possibly have
       had all of that information was that he had indeed had some protracted
       conversation with her on the date in question.

       10. [Appellant] contends that the agreed upon evidence, that DNA
       comparisons showed the presence of DNA in a sperm fragment from an
       unidentified male, lends credibility to the proposition that although
       [Appellant] engaged in sexual intercourse with [C.B.], so did another
       unidentified male. [Appellant] contends that it was the other male who
       also beat [C.B.] again consistent with [Appellant’s] statement to the police
       and testimony at trial. The question of whether [C.B.] was sexually active
       at the time prior to the assault was initially answered differently from the
       trial, when the prosecution attempted to discount the unknown sperm
       fraction. . . .
Appellant’s Post-Sentence Motion at ¶¶7-10.

       In his Rule 1925(b) statement, he did not repeat the above details, opting instead

to articulate the issue in a substantially-shortened form:


                                     [J-90-2020] - 20
       The verdicts were so contrary to the weight of the evidence as to shock
       one’s sense of justice, where [A.P.’s], [M.H.]’s and [C.B.]’s testimony was
       vague, inconsistent and incredible. New trials should have been granted
       in the interests of justice so that right may prevail, as the fact finder’s
       verdict based upon such testimony was speculative and conjectural.
Commonwealth v. Rogers, Nos. CP-51-CR-5861-2012, et al., Final Statement of Errors

Complained of on Appeal (C.P. Phila. Apr. 10, 2018), at ¶2. The Superior Court faulted

Appellant for failing to specify which verdicts were against the weight of the evidence, or

to offer specific reasons why those verdicts were contrary to the weight of the evidence.

See Rogers, 

2019 WL 4686960

, at *5.15

       Appellant complains that the Superior Court’s waiver ruling was based solely on

the face of his Rule 1925(b) statement. As his post-sentence motion was included in

the record, he argues, it should have been considered in tandem with his concise

statement so as to avoid waiver, particularly as the trial court had authored an opinion

addressing the claim on its merits. In this respect, Appellant notes the purpose of Rule

1925(b) is to facilitate appellate review when the common pleas court intends to issue

an opinion addressing the substance of any issue raised in the appeal. He quotes from

Commonwealth v. Silver, 

499 Pa. 228

, 

452 A.2d 1328

(1982), which stated:

       The statement provided for [in Rule 1925(b)] is intended to aid the trial
       court in the preparation of an opinion where the basis of an appeal is
       unclear after post-verdict motions have been disposed of. The waiver
       provision of the Rule is properly invoked only where failure to file a
       statement or omission from a statement of issues raised on appeal
       defeats effective appellate review. Mere omission from the statement of
       matter complained of on appeal of an issue preserved by post-verdict
       motion, argued before and disposed of by the trial court, and briefed on
       appeal, does not, in itself, defeat effective review of that issue.


Id. at 238, 452

A.2d 1333.


15 Appellant was convicted of more than three dozen different offenses in relation to the
three victims mentioned in his concise statement. See Rogers, Nos. CP-51-CR-5861-
2012, et al., slip op. at 1 n.1 (Woelpper, J.).


                                     [J-90-2020] - 21
       For its part, the Commonwealth argues – and references several reported

Superior Court decisions in support – that under the intermediate court’s precedent,

vague and undeveloped evidentiary-weight claims are considered waived. It adds that

even if Appellant prevails on this issue, he will only be entitled to a remand to the

intermediate court to address the merits of his claim.

       The Commonwealth’s substantive argument is not entirely responsive, as it does

not contend – nor does our own review suggest – that in any of the cases it cites the

trial court issued an opinion resolving the merits of the claim the Superior Court deemed

waived.16 Moreover, the Commonwealth does not reference any decision of this Court

addressing waiver in circumstances similar to those of the present case.

       At the same time, Appellant overstates his position; he fails to recognize that,

after Silver was decided, this Court set forth a rule contradicting any suggestion that

failure to include an issue in a Rule 1925(b) statement does not always result in waiver.

In fact, sixteen years after Silver, the Court held that, going forward, if a trial court

orders a party to file a concise statement, any issue not raised in the statement is

waived, see Commonwealth v. Lord, 

553 Pa. 415

, 420, 

719 A.2d 306

, 309 (1998), and

the precept was eventually incorporated into the rule itself.              See Pa.R.A.P.

1925(b)(4)(vii). That development is potentially relevant because a claim or argument

that is substantially underdeveloped can amount to “the functional equivalent of no

argument at all,” and on that basis be deemed waived. Commonwealth v. D’Amato, 

579

Pa. 490

, 504, 

856 A.2d 806

, 814 (2004); accord Commonwealth v. Dowling, 

778 A.2d

683

, 686-87 (Pa. Super. 2001) (suggesting that an overly-vague concise statement is

the equivalent of no statement at all).

16 In one of the cases, the Superior Court explained that the trial court summarily
dismissed the claim without discussing the evidence. See Commonwealth v. Seibert,

799 A.2d 54

, 62 (Pa. Super. 2002), cited in Brief for Appellee at 52.


                                     [J-90-2020] - 22
       In all events, it bears noting that the purpose of Rule 1925 is to facilitate

appellate review and to provide the parties and the public with the legal basis for a

judicial decision. See Commonwealth v. Parrish, ___ Pa. ___, ___, 

224 A.3d 682

, 692

(2020) (quoting Commonwealth v. DeJesus, 

581 Pa. 632

, 638, 

868 A.2d 379

, 382

(2005)). If that basis is evident from the record, the trial court need not issue an opinion

explaining it. See Pa.R.A.P. 1925(a) (requiring an opinion only where “the reasons for

the order [appealed from] do not already appear of record”). The function of the concise

statement is to clarify for the judge who issued the order the grounds on which the

aggrieved party seeks appellate review – so as to facilitate the writing of the opinion.

See Pa.R.A.P. 1925(b) (“If the judge entering the order giving rise to the notice of

appeal . . . desires clarification of the errors complained of on appeal, the judge may

enter an order directing the appellant to file of record . . . a concise statement of the

errors complained of on appeal[.]”).

       In Commonwealth v. Laboy, 

594 Pa. 411

, 

936 A.2d 1058

(2007) (per curiam),

this Court faced a situation comparable to the present controversy. The defendant’s

Rule 1925(b) statement was exceedingly brief in setting forth an evidentiary-sufficiency

claim. Nevertheless, the common pleas court issued a Rule 1925(a) opinion resolving

the claim on its merits. The Superior Court found the claim waived due to its brevity and

did not address its merits. This Court held that the Superior Court should have afforded

the requested sufficiency review, as the trial transcript was short, it was fairly evident

from context that the sole legal issue was whether the defendant was vicariously liable

for his co-defendant’s actions, and “the common pleas court readily apprehended

Appellant’s claim and addressed it in substantial detail.”

Id. at 415, 936

A.2d at 1060.17

17This Court has referenced Laboy in summarily granting allocatur, vacating the
Superior Court’s decision, and remanding for a merits disposition of certain issues.
See, e.g., Commonwealth v. Malave, 

98 Pa. 494

, 

957 A.2d 1175

(2008) (per curiam).


                                       [J-90-2020] - 23
      Here, the trial transcript is admittedly much longer than in Laboy. Nevertheless,

the weight-of-the-evidence claim was readily understandable from context. Appellant’s

theory, for which he provided his own supporting testimony, was that he was innocent of

all charges in relation to the three adult victims because he did not physically attack or

steal from any of them, and his intercourse with all of them was consensual. Further,

and as noted, in his post-sentence motion Appellant articulated the evidentiary-weight

claim at some length as to the three adult victims, and those were the same individuals

he mentioned in his Rule 1925(b) statement. The common pleas court summarized the

victims’ credited testimony contradicting Appellant’s theory and determined that the

verdicts were not contrary to the weight of the evidence. Thus, as in Laboy, the trial

court had no difficulty apprehending the claim as set forth in the concise statement and

addressing its substance.

      This latter circumstance is particularly salient because, as explained, the concise

statement’s purpose is to assist the trial judge in apprehending the issues and authoring

an opinion accordingly for the benefit of the parties, the appellate court, and the public.

If a concise statement’s explanation of a particular issue is overly long, moreover, the

appellant runs the risk of invoking the waiver rule on that basis.         See Pa.R.A.P

1925(b)(4)(iv) (prohibiting “lengthy explanations as to any error”); 1925(b)(4)(vii)

(providing, among other things, that failure to raise issues in accordance with paragraph

(b)(4) results in waiver); 1925(b)(4)(ii) (mandating issues be stated concisely); cf. Eiser

v. Brown & Williamson Tobacco Corp., 

595 Pa. 366

, 384 n.19, 

938 A.2d 417

, 428 n.19

(2007) (plurality) (observing that Rule 1925 as revised “now explains that frivolous or

redundant issues continue to provide grounds for waiver, and clarifies that a lengthy

explanation of the claimed error(s) should not be provided in the statement”).




                                     [J-90-2020] - 24
       In light of these principles, we find that the brevity of Appellant’s weight-of-the-

evidence claim as set forth in his concise statement represents a good-faith attempt to

comply with Rule 1925’s concision requirement, and that it did not prevent meaningful

appellate review. That being the case, the intermediate court should have considered

the claim on its merits. Accord Commonwealth v. Smyser, 

195 A.3d 912

, 916 (Pa.

Super. 2015) (applying Laboy to reach an issue set forth in a “boilerplate” concise

statement where the trial court readily apprehended the issue).18


                                            IV.

       For the reasons given above, the Superior Court’s ruling is affirmed insofar as it

upheld the common pleas court’s denial of Appellant’s motion in limine, thereby

excluding from trial any evidence concerning the alleged prostitution convictions of A.P.

and M.H. The intermediate court’s order is vacated, however, to the extent it found

Appellant’s weight-of-the-evidence claim waived, and the matter is remanded for a

merits disposition of that claim.



       Chief Justice Baer and Justices Todd, Donohue, Dougherty and Wecht join the

opinion.

       Justice Mundy files a concurring opinion.




18 Our holding does not purport to alter this Court’s precedent indicating that, if the
appellant fails to file a timely concise statement in compliance with the trial court’s
directive – or entirely omits certain issues from an otherwise compliant statement – the
issues are waived regardless of whether the trial court issued a Rule 1925(a) opinion
addressing them. See Commonwealth v. Hill, 

609 Pa. 410

, 426-27, 

16 A.3d 484

, 493-
94 (2011). Hill noted that the only exception is for issues subject to automatic statutory
review in a direct capital appeal. See

id. at 425, 16

A.3d at 492.


                                     [J-90-2020] - 25

Add comment

By

Recent Posts

Recent Comments