Com. v. Wise, D.

J-S45028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SCOTT GUTH : : Appellant : No. 1878 EDA 2022

Appeal from the Judgment of Sentence Entered April 19, 2022 In the Court of Common Pleas of Northampton County Criminal Division at No.: CP-48-CR-0002784-2021

BEFORE: OLSON, J., STABILE, J., and MURRAY, J. MEMORANDUM BY STABILE, J.: FILED APRIL 5, 2023

Appellant Scott Guth appeals from the April 19, 2022 judgment of sentence entered in the Court of Common Pleas of Northampton County (“trial court”), following his open guilty plea to drug delivery resulting in death.1 Upon review, we affirm.

The facts and procedural history of this case are undisputed. Briefly, following a fatal fentanyl overdose, Appellant was charged with, and subsequently pled guilty to, the foregoing crime. On April 19, 2022, the trial court sentenced Appellant to 7 to 14 years’ imprisonment. On April 26, 2022, Appellant pro se moved for post-sentence relief, indicating that he was without counsel. On April 29, 2022, the trial court issued an order accepting as timely filed Appellant’s April 26 post-sentence motion and directing Appellant to seek ____________________________________________ 1 18 Pa.C.S.A. § 2506(a).

J-S45028-22

appointment of a public defender. On May 18, 2022, Attorney Molly Heidorn, Office of the Public Defender, Northampton County, filed a praecipe for entry of appearance on Appellant’s behalf. On June 3, 2022, Attorney Heidorn filed an amended post-sentence motion, challenging the discretionary aspects of Appellant’s sentence. On June 30, 2022, the trial court denied post-sentence relief. Appellant timely appealed. The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant complied, reasserting his challenge to the discretionary aspects of his sentence. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.

On appeal,2 Appellant presents a single issue for our review.

[I.] Did the trial court err and abuse its discretion when it imposed a sentence inconsistent with the Sentencing Code and/or contrary to the fundamental norms which underlie the sentencing process, in that said sentence constituted an abuse of discretion because the sentence imposed represented an unreasonable and excessive sentence which failed to consider mitigating factors.

____________________________________________

2 When reviewing a challenge to the trial court’s discretion, our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)), appeal denied, 64 A.3d 630 (Pa. 2013).

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Appellant’s Brief at 6 (unnecessary capitalizations omitted). At the core, he claims only that his sentence is excessive because the trial court failed to consider mitigating circumstances.

It is well-settled that “[t]he right to appeal a discretionary aspect of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the discretionary aspects of a sentence, an appellant’s appeal should be considered as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

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Here, Appellant has satisfied the first three requirements of the four-part Moury test. Appellant filed a timely appeal to this Court, preserved the issue on appeal through his post-sentence motions, and included a Pa.R.A.P. 2119(f) statement in his brief.3 We, therefore, must determine only if Appellant’s sentencing issues raise a substantial question.

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). We have found that a substantial question exists “when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). “[W]e cannot look beyond the statement of questions presented and the prefatory [Rule] 2119(f) statement to determine whether a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015).

It is settled that this Court does not accept bald assertions of sentencing errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.

2006). When we examine an appellant’s Rule 2119(f) statement to determine ____________________________________________

3 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

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J-S45028-22

whether a substantial question exists, “[o]ur inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.” Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008) (quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)). A Rule 2119(f) statement is inadequate when it “contains incantations of statutory provisions and pronouncements of conclusions of law[.]” Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation omitted).

Here, as indicated, Appellant essentially asserts in his Rule 2119(f) statement that his sentence is excessive because the court did not consider mitigating factors, such as “his remorse, acceptance of responsibility, and his history of addiction and mental illness.” Appellant’s Brief at 15. Based on his 2119(f) statement, we conclude that Appellant has failed to raise a substantial question.

As noted, Appellant’s excessiveness claim principally is premised on his argument that the trial court failed to consider his mitigating circumstances. In this regard, we have “held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)); see also Commonwealth v. Berry, 785 A.2d 994 (Pa. Super. 2001) (explaining allegation that sentencing court failed to consider certain

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mitigating factor generally does not raise a substantial question); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) (“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate,”), appeal denied, 676 A.2d 1195 (Pa. 1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) (finding absence of substantial question where appellant argued the trial court failed to adequately consider mitigating factors and to impose an individualized sentence). Consistent with the foregoing cases, we conclude that Appellant failed to raise a substantial question with respect to his excessiveness claim premised on inadequate consideration of mitigating factors.4

Even if we were to find a substantial question, Appellant still would not be entitled to relief. First, as Appellant himself acknowledges, his sentence of 7 to 14 years’ imprisonment is in the bottom end of the standard range. Appellant’s Brief 14-15. The imposed sentence also is what his plea counsel ____________________________________________

4 Similarly, insofar as Appellant suggests that the trial court abused its discretion in imposing a sentence consecutive to an unrelated sentence he received in Lehigh County, Appellant’s Brief at 15, he does not raise a substantial question. We consistently have recognized that excessiveness claims premised on imposition of consecutive sentences do not raise a substantial question for our review. See Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc) (stating, “[a] court’s exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question[.]”), appeal denied, 126 A.3d 1282 (Pa. 2015); see also Ahmad, 961 A.2d at 887 n.7; Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006).

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accepted at sentencing. See N.T. 4/19/22, at 38 (“The bottom end of the standard range is appropriate.”). Second, it is well-settled that “[w]here[, as here,] the sentencing court had the benefit of a presentence investigation (‘PSI’),[5] we can assume the sentencing court ‘was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.’” Moury, 992 A.2d at 171. Indeed, our review of the sentencing transcript reveals that the trial court heard testimony and argument concerning Appellant’s mitigating circumstances and considered the same in crafting his sentence. See N.T., Sentencing, 4/19/22, at 5-14, 22-34, 36-38, 40-41. Accordingly, Appellant’s sentencing claim based on insufficient consideration of mitigating factors lacks merit. The trial court, therefore, did not abuse its discretion in sentencing Appellant to 7 to 14 years in prison.

Judgment of sentence affirmed. ____________________________________________

5 We note Appellant’s PSI report is part of the original record. It should be noted that pursuant to Pa.R.Crim.P. 703 a PSI report is “confidential, and not of public record,” which is available only to the authorities or the individuals listed therein. See Pa.R.Crim.P. 703. Accordingly, the Northampton County Clerk of Courts should take all necessary steps to preserve the confidential nature of the PSI report by sealing it.

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J-S45028-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/05/2023

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Circulated 03/16/2023 11:02 AM

IN THE COURT COMMON PLEAS OF BEAVER COUNTY, PENNSYLVANIA

COMMONMIEAI-XH OF CRIMINAL DIVISION PENNSYLVANIA No. 133 of 2021 N1.

D'K\VAN MARQUIS \, VISE,

Defendant.

D. FOUSE, J. March 29, 2022

OPINION

On September 9, 2021, follo«7ng ajury trial, Delendwit was found guilty on diirteen

counts ol' a fourteen-count information: t•vo counts each of Rape by Forcible- Compulsion, Rape b}r

Threat. of Forcible Compulsion, Sexual Assault., Indecent Assault by Force or Compulsion, and

Indecent Assault NVithout. Consent, and one count. each of Aggravated Indecent Assault- Without.

Consent, Unlawful Restraint: (Involuntary Senritude), and Simple Assault. He was IOund not. guilty

on one count of' Unlawful Restraint ( Risk of Serious Bodily Injury). On December 14, 2021, the'

Court imposed m aggregate sentence of 30 to 60 years imprisonment. On December 23, 2021,

Defendant filed aPost-Sentence Motion. For the reasons set forth below, (lie Motion is denied.

ISSUES RAISED

Defendant makes diree arguinents: ( 1) that (lie verdict was against the weight of tlic

evidence; ( 2) that die Court. erred in permitting the jury to I iear that. [lie Commonwealth had

instructed the victim not to mention her drug use during the preliminary hearing clue to ail 4.) an

• • 1ad III i s bill •vollcern 'while not. permitting defense counsel to state that the victim lied under oadi

at. tht3 h 's - direction; and (3) that the Court erred in not admitting into evidence a ,2.= G rev v? ,victim reposicd on Facebook two days alter the alleged rapes occurred.

"'J Cy CQ

STATEMENT OF FACTS AT TRIAL

The Commonwealth presented evidence that Defendant taped the victini, J.M., two times in die Larly morning hours of December 2.5, 2020. Defendant. argilcd that die sex was consensual.

1. Kayla Troy

Kayla "Troy, aBeaver Count5r 91 1dispatcher, testilied that. she received a911 call li-olri J.M. at. 3:13 a.m. on December 2.5, 2020. Trial "Transcript Vol. lI at 77-79; Conunonwealth's Exhibit 1. The recorded call was played for die July. Vol. II at 80; Comm onwcafdi's Exhibit 2. In die: call,.T.M. stated that site was at. her Miciland apai•hnent., where she had been raped twice by D'Kw,ui Wise, who had just left. the apai-tinent on loot alter trying unsuccessfully to get it ride. Exhibit 2. She said he had come over wound 10:00 pan. acid had woken her up au•ound 2:00 a.m. and raped her. Irl. She said she had asked him to come over to watch amovie. Irl. N1'hen he first tried to get. ln6niate N6th her, she said no, quid lie stopped. IrL But when he woke her up around 2:00 a.m., she asked him repeatedly to stop quid he told her to shut up auul force(] hinisell'on her. Irl. She also said he had agun. Id. Ms. "Troy testilied that this was only the second ume In leer live yews as a911 dispatcher that she received acall from it victim reporting arape that had ,just. happened. Vol. II at. 80.

2. Officer Ross Youree

011icer Ross Youree of the Midliuid Borough Police Depa-t -linent testilied that he responded toJ.M.'s 911 call on December 25, 2020. Vol. 11 at &1-8.5. \%Mien he arived at her apartment, she %Nils dying aild distraught. Irl. at 86. He testilied that, as apatrol ollicer, lie is trained to take only it brief statement from asexual assault victiiil, awhile amore specialized ollicel' would follow up with it detailed interview. Al. at 8G-87. J.M. stated to 011icer Yourec that she had invited Defendant over that night to watch amovie .utd that they had Millen asleep. IrI. at 87-88. Around 2:00 a.m., Defendaiil bcg;ui to touch her sexually and she told him no and pushed him *3 oil, but. he then held her down, pulled her shorts clown, and had sexual intercourse "ridi ] lei-. Irl. She said Defendant. then tried to unsuccesslully to find aride and, when she refilsed to p*vc him a ride, he became upset and again held her down, placed his hand over her mouth, told her to shut, up, and had scx %vith her asecond lime. Id. al 88-89. She %dd that, between the two incidents, she had texled afriend auul let them know what happened. Irl. at 89. Officer Youree recommended ehat.J.M. proceed to die hospital for arape exaun and preserve whatever clothing she had been wearing. Ir1. at 90-91. He called aui aunbulance which look.T.M to the hospital. Id at 91.

3. Gage Lame

Gage Latone, an inmate at the Beaver County.jail, testified plat lie had been friends %with Defendant. for about ten years aild ;irith J.M, for six or seven )Tears. Vol. II at. 11.5-17. He introduced Defendant. and J.M. to each other in person for the first. tinic on December 23, 2020, when the three of them tried t.o go to abal' together but called it. alight Ater one of them couldn't get into the bar. I(L at 118-19. Mr. Utone authenticated texts lie exchauiged with J.M. via Facebook Messenger beginning at. 2:11 a.m. oil December 2.5. Ir1. at 119-33; Comnlomvead(i's Exhibit. 3. In the texts, J.M. told Mr. Latone Chat Defendant. had just: raped leer aulc] was trying to find aride. Exhibit. 3. She tested that she let Defendant. come over to watch amovie, lie tried to touch her and she told him no, they lell asleep, and lie woke lrer up touching her and getting on top of lrer. IrL She said " stop I'm not playing" but: he ripped lrer pangs oil, told her to shut up, auul " literally shoved himself' inside of" her. Irl. He put. his hand over licr mouth auld kept telling lrer to shut up all(] she couldn't push him oil. Irl.,I.M. tcxted that she lelt "so weird" and Ieh like she Ovals going to throw up. Id She told Mr. LAone that she waulfed to call the cops alter Defendant leli. Id.

Mr. Iatonc responded: " Why would you chill 1withl him alter Itold you Ididn't even lecl comfortable al-01.111d him... I'nl agrown ass man and Idon't feel sale around him." k1.,i.M. tested that Delerlda nt was now saying he couldn't find aride and she sumested he walk and said " you *4 gotta leave." Id. Mr. Latonc advised her not to start freaking out. or D&n(lanl might ( lo something, wid described Deiendiuit as " redly cntzy." Id. Mr. Latone asked if Delendatit had " his gun" and.J.M. said she didn't. think so. Id. Mr. Latone said " Guess he can't kill you at least" quid J.M. said " he has 2hauids" mid " Igot it throat." Id. Mr. Ixltone said " Yo chill this ain't atime for jokes" and.I.M. said she was scared Defendant would " beat ] her] ass" il" slie tried to get dressed to go outside. Id. Eventually.I.M. texted " Bro he [just] ( lid it again" aid said she jusl saw that Defendant ( It(] have his gun. Id. Mr. Latone advised leer to make arun for it. and asked her if she wiUlted him to call the police. Id. She salad Delendallt looked like he was getting ready to leave, aild soon said Defenclauit had just. left Auld she was now calling the cops. Id. She texted " lie [) List] raped ine twice no mistake about it at. all." Id. Mr. Latone said Delendmit. " might kill you wlicn lie hndlsl out" J.M. called the police, and she responded "They better put me in protectlon sen,ices in it iniulsion." Id.

On cross exaInination, Mr. Latone agreed that he was better friends with Defendant thail wid J.M. Vol. II at 136. He testilicd that. he hung out witli.I.M. after the December 2.5 incident. quid described her as being in ajoking snood about what. happened. Id. at 146-47. Based on his lalniliarity witli.I.M.'s personality through years of knomng her, he did not believe dial site twits acting traumatized. Id at 147-48. He admitted that he had offered to help Delendiuit by providing this information to delense counsel. Id. at 148. On redirect, he denied being on either Defendant's Side or J.M.'s si(le, but admitted he had sent Defendant amessage saying " Iain't on her side" aild Itick her for real." Id. at 150. He also admitted that, while.i.M. had " seemed line" quid " acted like her normal sell" acouple of days alter the incident, she never said she made the whole thing up or chmiged tier story about ivhat happened. Id. at 150-51.

4. Nurse Estelle Keifer

Estelle Keiler is it registered nurse and certified Sexual Assault NUrse Ex.uniner who testified that site colllpleted.l.M.'s sexual assault examination at Heritage Valley Deaver Hospital on December 25, 2020. Id at. 157, 160-61; Commonwealth's Exhibit d•. She recorded.I.M.'s account of what happened:

Iinvited him over the night before to watch it movie. He got. there at 9:30. NVc I.ud dicre watching it movie. He tried to touch me it couple of limes. He kissed me. Every lime lie tried to touch me Isaid no. He asked nie to touch him. Isaid no. I passed out watching the movie. About. 2a.m. Iwoke up to hint touching use. Ihad ill),leg over hills while Iwas sleeping and he was touching my vagina. Igrabbed his hand lalldl gold him to stop touching me and Iturned around. He kept trying to touch ills. Itoll hull Iwasn'll playing aiid Iwas pissed he woke me up. He then rolled over got Oil top of ' isle between ill),legs jandl he said he wasn't playing-either. He forced my legs up by ill) ,head and was laying on top ol' nle. Ikept saying his mine and to stop. He kept repeating to Inc to shut tip. He kept. one haild over lily mouth and used the other haled to pull ill),shorts up. Then Ile forced hlnisell inside nic alter lie pulled my shorts up. Iscratched his ]leek and his chest. trying to push him oll. This lasted 2-3 minutes. He tried to put Isis ar1n al-OLInd Ine after and asked ii 'l wanted hun to leave and Is.ud yes. He sat there 15-20 minutes trying to find it Iridel... Isat there on my phone. Then he asked nee for it ride. Itold him no mid to walk wherever lie needed to go auld he said Ihad him fucked up. Then he said he had it ride coming in 10 minutes. Then he came around dic bed. He got on top of Isle between illy legs agilin tried to dull my shorts down. Iscreamed. He put. his ( land over Illy throat Auld mouth told nee to shu( up. He pushed me into the bed. He told me he was going to punch me. Then he was choking nic. He was Inside isle and it. Listed about. the same amount- of time its the first. Then he left and told nic to lock the door behind Inc. He did have it gain. Isaw it sitting on die bed with shill. Isaw it when he got. up... IHIe left and Icalled [lie cops.

Vol. 11 166-67; Exhibit 4. In response to liu•lhcr queslions, J.M. denied that she had used any drugs or alcohol in (he past twenty-lour hours. Vol. 11 at. 169. She reported that Defendant penetrated her vagina with his penis and finger and that lie ejaculated in her vagina. Ire. at 172. \curse Keifer examined_) .M. and did not. notice any I)ruising or visible inJIIIies. M. at 173-7-5.

5. Officer Mitchell Himes

011icer Mitchell Hinges of tl►e Midlauld Borough Police Depau•tnlent, who is assigned to investigate sexual assault. all(] child abuse cases, testified that lie nitcrricwed,J.M. on December 26, 2020. Vol. I1 at 203-20.5. She told him that site islet. Defelldailt. through Gage Latone, (extcd with Delendiuld on Facebook Messenger throughout December, iuld met him lit person for the first (inie on December 23 when she bung out with him aril Mr. I.xttonc. Id, at 207-208, 220. Via Facebook Messenger, she invited Delendarlt. over to watch amovie oil December 24. ICI. at 209, 221. N11hen Defendant. arrived at. Ier a1)iu•(illelit', she was getting ready to take abath and she iulSwered the door ill atowel. Id. at 209. She told 011icer Himes that De;lendatlt. awaited in Iter room while she took it bath, she ciune out of the bath ill it towel, chiulged in Front of him, and asked Ilinl to rub lotion oil her back, at. which tinic he kissed her back. Id. at. 209, 227-28. Slic did not report. that. (leis contact was unwanted. ICI. at. 228. Site further reported that shee later fell asleep and awoke l%rith Delendailt (OUClling lier vagina and she told hint to stop). Id. at 210. He continued

alld liked her legs iuld penetrated her. Id Aflerwau-d, Defendant became upset while ( 11 ing to lied

it ride mid again got on top of.J.M., pllt Ills hauld OVCr ller i110rth, auld penetrated her asecond time. Id

Officer Hinics testified that lie submitted the e:vidence collected in,J.M.'s sexual assault

exa.in to the Greensburg Pennsylva.iiia State Police Crime Lab. Id. at 214- 1 5. The parties stipulated

that swabs fi•om.J.M.'s vagina tested positive for Delendwit's DNA. Id. at. 217-19.

On cross examination, 011icer Hinlcs testified thad.M. reported that she asked Defendant to bring marijuana wI1Cl1 he cattle over, and lie did So and asked her to roll it blunt. Id. at 226. This testilnolly ;was elicited dilly idler asidebar dir-ilig which Defendant conhrmcd oil (he record dial he understood that this line of gtlestic)ning would ilnplicale him in an exchange of illegal rau•colics that the Commonwealth would not Otherwise be able to introduce info evidence. Id. at 222-25.

6. J.M.

.J.M. testified that she had been friends with Gage I..atone since around 2014 and niet Defendant through Mr. L.atone. Vol. III at 7. Before meeting Defendant in person, s4lc texted with him on Facebook Messenger, beginning on December 8, 2020, when he replied to aphoto on her Facelrook story, describing her as " Exotic" and complimenting her facial features. Id at. 8-11, 103; Commonweal(] i's Exhibit 12; Defense Exhibit. A. J.M. described their conversations as "alittle flirtatious" but nothing sexual. Vol. III at 8-9, 96. On December 23, J.M. planned to go to Kendre►v's bar in Aliquippa with Mr. Latone, who suggested that they invite Defendana aNer,J.M. told him she arid Defendant. had been messaging each other. Id at 1.5. J.M. picked up Delendallt in leer car and had casual, non-ILPta6ous conversation with him before picking up Mr. ].atone as alvell. Ire at 16-17. VVllen they au-rived at Kendrew's, Delendarit said he didn't have,his ID and

would just wait. in the c;u•. Id. at 16. J.M. thought that was weird .0- id didn't. ]want Delendiuit sitting

in her car because she b.u-ely knew him, so she suggested dievittst call it oil', and she dropped Mr. Latone then Delendault. back oll. Id Later that night,J.M. and Defendant. texted, each saving they fek comfortable quid got good vibes from the other, quid J.M testified that she started to have alittle bit. of interest in Defendwit alter seeing him in person. Id. at 17-18.

.1.M. auul Delendwit continued to text the following day, December 21, acid she asked if he wanted to watch aClu-istmas movie that night, mid he sidd yes. Id. at 18-21. She asked ltim 11' he

had marijuana and they made plans for her to purchase as111all . 11101111( of mariivana from him. Id.

at 23-25, 121-22. NVl1en she got ! tonic around 9:00 p.m. that evening, they spoke via Facebook Messenger and Defendant s:dd he would 11e coluing o%,cr, but,J.M. didn't. blink 41c was actuallw coming, so she texted him " It's cool have it good night." Ire. at 27, 123. Site thought their plains were off, but around 9:30 p.m. Ire knocked on ] ter door. Id. at 28, 123.

She answered the door in arowel because site was about to take abath. Id. at 28-29. Site told Delendalit to wait in her room and roll up the Marijuana while site took abath. Id. at 28. He asked if he could join her in the bath alld site said no. Id. al. 29-30. When she got. out. 01'01L balk, site put on shorts but. no shirt or bra, mid asked Defendant. to rub lotion on her back. Id at 30-31, 126. He did so gild kissed leer back it little bit, but she tes6lied that. she was not looking to have sex

that. night. Id. at 31, 130. They smoked nla l ijuana avid then laid under (lie covers of her bed in a

spooning posllion, neither weanng a shift, curd watched it movie on.I.M.'s phone. Id. at 32-33. J.M. testified that Defendant tried to pitta his h.Ul(l down her pains multiple times and She CaS11a111)' Moved his hallld away. Id. of 33-34, 134•-36. Delcndailt was stoppilg when site told him to and site felt this activity was playful and not serious. M. at 34. Delenclault. also said he had ail erection iuul asked her to touch it, alld when she said no lie accepted it. Id. at. 34-35. She told hum " you're nol going to come over here for file first. 6ine and think you're going to have sex with me." Id. at 36-37.

.i.M. fall asleep and woke up at 2:00 a.m. with Delenda iii touching ] let- vagina. Id. at 3.5-36. She grabbed lies hand auld toll him to stop, saying she was mad he woke 1)er up because site already told him site didn't want to have sex. Id. at 36. He got. on top of her, she sand " stop" aild "F ill not playing" ,alld he sold " I'm not pl aying either. " Id. He ]MI. I1lS hauld over her mouth acid kept telling her to shut up. M. al 37-38. Site flied to push hinl Off but Couldn't, and told 111111 to stop more thall ten ( lilies in an unmistakably serious Bone. Id. at 39. Her knees were pinned agtiust licr cliest aild he pulled her shorts ill) to her knees. Id. at. 40. He inserted himself info her vatrina and, alter being unable to pusli him oll', she give up and let ic happcn, gild the sex lasted l.wo or three minutes. Id. at 41. Afterward he asked if she wanted him to leave—which she took as ail indication that he knew what he had done was wrong—and she said yes. Id. at 42-43, 47. Defendant begin calling people fi raride and.T.M. beb-mi tcxtiilg N•h'. I.atone. Id. at 43. She testified thal site was scau'ed to call 911 with Defendant Still 111 her apal'tlllClll bllt needed to tell someone w hat *9 happened. kL at 43, 46. Delendant said Ile «gas unable to find it ride and J.M. suggested he walk. Id. at 47-48. Defendant went to the bathroom and.I.M. grabbed R kitchen knife that she kept under her bed. Id. at. 51 -52.

\1 7hen Delendant. tune out. of! the bathroom, lie pushed.1.M. back down on the bed and got on top ol' her. Id. al 52. Site was screaming really loud for 111111 to stop blithe waS more aggressive this little, slamming his hand OVei' Itel' 11101/111 and ripping her shorts all the wa),011'. Id. at 52-53. Her knile was under her pillow but. she didn't use kbecause she was all -aid he would turn it on her. Id. at.58. He stuck t.wo lingers into her vagina before inserting his penis. Id. at 54-55. She was oil her back and lie wanted lien to switch positions, telling her to turn .wound or he would punch ] let-. Id. at 55-56. Site turned al-otuld, he put his penis back inside her, and he said 11' site "didn't fuck him back he was going to choke the life out. of" her. Irl. a156. She didn't. move and %%'its scared she was about to die. Id. at 56-57, He sitid "tell me whenever you Coble" iuld she Stud no alld the Sex ended shortly thereafter. Id. al. 57. J.M. thought. Delendmil ejaculated but wasn't sure. Id. at 57. Delendant got. up aild go( dressed and,).M. saw his limidgun on the bed. Irl. a,58. Delendault. resumed trying to find aride acid J.M. continued to test. Mr. Iittonc what was happening. Id at 59-61. Delendault said he had it ride tell iiunulcs away, told her to lock her door, and left the apartment. Id. at 62-63. Wizen he was gone, J.M. locked the door . lid called the police. Id, at 63.

On cross exavlination, J.M. testified that she couldn't. remember which movie they had been watching, but denied that smoking nia1'ijual7a that day had allectcd ) let- mcinoiy. Id. at 137-38. J.M. admitted to smoking marijuana not only with Delendant, but also with lice brothers earlier in the day. Id. at 138j. acknowledged that site had dettied using drugs that day when asked by defense counsel at theJanuali, 25, 2021 preliminary hewing. Id. at 138-39. The assistant district

attorney objected, and ill it sidebar tttdlcal- ed Thal she had insiructed.I.M. below the preliminary

hearing that.J.M. was not allowed to mention the drug use because ( lie Commonwealth cannot

present evidence of uncharged criirles committed by adelcn(lant, and dial the assist.uit district.

attorney " never assumed that del - ense would want. us to bring in that their client. was selling drugs."

M. at. 139-41. Defense counsel indicated that she had never been informed diat.I.M. hall been

instructed not to mention the drug use during [lie prelimimuy hearing, that.I.M. had clenied using

chugs in response to it point.-blank question, mid that.J.M. hadn't. been asked about D6endai - it's

drug use. M. at 111.2-43. The Court stated dial it would allow defense counsel's line of questioning,

but. the assistwit. district attorney could rehabilitate the witness on redirect. by asking her about. ( lie

direction she was given at the preliminary hearing. M. at 141-143. Mgien cross exaunination

resume(I, J.M. acknowledged that she denied drug use while under oad) al the preliminay hearing.

AL at. 1113-44. She also acknowledged shat she denied drug use to Nurse Keifer (1111-ing her sexual

assault exam, stating that. site was scare(1 site woulcl get in trouble, but. She honestly reported her

drug use to Officer Hines the next. day. I(L at 78, 187-88. When asked why she ( lensed drug use at

the preliminary bearing, J.M. said the assistant district attorney had advised her not to mention

drugs. Id. al. 194-9.5. She reiterated that on redirect. Al. at. 20.5-206. On recross, defense counsel

began to ask J.M. to acknowledge that she \%-,is telling the: just' tha the assisbuil district attorney had

directed her to " lie under oadi," and the Court sustained the Commonwealth's objectioll amt

described defense counsel's statement as " aruiscliaracterization ol'the circumstances that we are

very well aware of." M. at 214.

On cross examination, J.M. testified that. she was lraumatize(l by what happened and Jcll it

had been aviolation ol' her body, but that it didn't change how she feels about her bo(ly. R at 161,

186. Site acknowledged that, on December 26, 2020, she posted on racebook aphotograph of'

herself that. showed some cleavage «with [Ile caption " Goodmorning." M. at 190--93; Dcicnsc

Exhibit. C. She testified that she posted it to male lierself Ices conlidcnt and live her life like

10 I

nothing lead liappened. Vol. III at 192-93. The Court admitted the photo over the Co11 mo11wealdi's obtectloll, but 1'LIICd agullSt dC1elISC COLInSCI'S lntrodLICti011 Of*a meme J.M. reposled on racebook l.wo days filter the alleged rapes avhicli staled: " ruck sex. I'm tryn to be l]l( ,

reason ) roil smile everyday. Mle still gone hick tho." . See id. at 166-85.

7. Detective Robert Heberle

Detective Robert Heberle of die Beaver County Detective 13111 -CRU testified that: he worked

witli,J.M. 111 [ lie week lollOWlllg the alleged ral)eS and attempted to record phone Calls between

,J.M. find Delelldalit III all ellOrt to elicit illcl'Iminating admisslous ll'o111 Del'emialll'. Vol. III at 224-2.5. Det. Heberle slid record it phone call bet\wecn,J.M. find Delendiult. via racebook Messenger, but Delendallt hung up when J.M. brought. up the incident. Id. at 229-31; Comnonwealdi's

Exhibit I0. J.M. was Illstructed 1lOt to allswcr any calls from Defendanw- ,without officers present.

Vol. III at 232j .M. ignored some calls from Delendalit. but, engaged in some textiilg witli hint in im eflbrt to setup acall ghat officers could record. Id. at. 232-36; Commomwealth's Exliibit 11. Deleudant's texts iticluded: " I'm it grown mim find dlillk liow Yu was playing," " Aild Yu leave me oil seell and skuldering my Ilium," " Expose [ lwhateverl Yu (lllllk Yu exposing," itlld " I'm dolle tn'illg I'm really asavage..." Exhll)lt 11.

DISCUSSION

Delendiult's Post-Sentence Motion raises three issues.

1. Weight of evidence

A " challenge to the weightoftlie evidence is distinct from achallenge to the sulficiency of the evidence in that the former concedes that the Commonwealtll has produced sufficient evidence of* each Licilient of file crime, but questions which evidence is to be believed." Coo. v. Kinnet-; 157 A.3d 968, 971 ( Pa. Super. 2017). " A verdict is against the weight of the evidence only when d1C _ LIly'S VC1 -did is so colltriuy to the evidence its to shock one's sense of )LlSt1Ce." Com. V.

II

Bl rkcneyt 94.6 A.2d 645, 652-53 ( Pa. 2008). That stauuhu•d of review is ahigh one: " When ` the figure of.Jusdce Loners oil her pedestal,' or when ` tic.im),'s verdict, at the time of its rendition, causes the trial judge to lose his breath, tcniporarily, and causes hull to almost fall from the bench,

then it is truly shocking to dic judicial conscience."' Com. I: Ani(;on, 860 A.2c! 575, 581 ( Pa.

Super. 2004•) ( quo(ingbipi v. Kccnwi, 151 A.2d ,147, 452.53 (Pa. 19.59) (musilimilo,.l•,

dissenting)). The tri al.judge " only possesses ` narrolw authority' Co upset a Jlll)' VCrdlcl oil a weight o1 die evidence chilli ," wid " assessing die credibility of witnesses at trial is within the sole discretion of the fact-finder." Blakencyat 652-53.

Here, Del(:ildlant -m -gues fiat fhc jury's vercllct was " against the weight of the evidence presented as awhole such that ic shocks one's sense of justice. " Pose-Sentence Motion at. T 4•. No specific gl•ounds are stated For this al'gl lllleilL, but it caul be nothing other than arequest for the Court to overeurn the jury's assessment o1'JAM.'s credibility. Such a decision is not within the Court's proper role. " 1t is the exclusive province of fis jut)' to resolve contradictoil' testilnolly aildl assess credibility." Cnm. r : Bishop, 2GG A.3d15G, 68 ( Pa. Super. 2021). " A trial judge musti do more than reassess die credibility ofthe %%ritnesses and allege that lie would not have assented to the verclict if he were ajuror. Trial judges, in reviewing aclaim that die verdict is against the weight of' the evidence, do not sit as the thirteendi juror. Rattier, the role o1 the tri al judge is to determine

that notwithstuicling all the filets, certmull facts are so clem -ly of g greater 1l'elglit. that to I nore then] or

to b•ivc them equal weight. with all the facts is to deify justice." Com. v. I ,K(Imci; 744- A.2d 74.5, 752

(Pa. 2000) .

Hdrc, fhcre are no " eertiull filets " that the Court could re-weigh as to any relev.ult issue other thail.I.M.'s credibility. The evidence consisted primarily ol,j.\R. testiFying that. Delcndlmmt raped lier twice and live other witnesses lestilying that.j.m. told them that Defendant raped her twice. Tlhl delense attempted to attack j.M.'s credibility in avariely of ways, highlighting perccived lncollslstencles as to tilllgelltlill platters Mid clucstlolllllg Whether She acted sufficiently traulliall %ed alter the incident, bul..J.M. never wavered 111 ber core allegations. That the jury chose to believe her does not shock the COLIII'S sensC OI justice.

2. Explanations ofJ.M.'sprior inconsistent testimony

Defendant argues that' die Court. "erred by Allowing" (lit: asslstmi dlstlict atlonicy " to ex pliu n away JJ.M.'sj Il1co11SlStenl t:estlllloll)' about drug use on the night in question by letting the ]uly hear dial IJ.M.1 was instructed by " die asslstiult district itlorne)' " riol to iiienlloll drug Ilse ill the prchinimu -yhearing while testifying under oath." Post:-Sentence Motion at 15. Defendant states

That. defense counsel " was never tlladc aware at. ( lie prelinlliiay licill'Illg tllilt U.M.1 was Illstl'ticted

not to mention iul)' C11 -Llg Ilse," illld argues that " Delelldarit's ability to allack R.M. 'SI crediblllty b)' showing that she lied under oath was severel) , limited by allowing the Coininonwealth to esplilin away her lie by shouldering the blame themselves." Id

`N lhell the Court lilltlally overruled the Conuuoilwealth's ol)jeclion alid allowed defense

counsel to impeach J.M. with her inconsistent preliniiniuy hearing t'esthnoll}', ( lie Court sta(ed that

t e Coinilionwcidth would be able to " rehabilitate" J.M. by asking her about. the direction she was Ovcn at the prelinliniuy hearing. Vol. III at 140-43. Defense counsel did nol. oppose this rLlling iuld did Ilot argue tha the explanation for the hiconsistenc)' was inadmissible. Id. The Cour( iS unaware of ally atithorltl` that would render that explanation liladinisslble, or ally aut.horlly thal gel endly prevents awitness Irons o1kring all explailatlon IOC inconsistent testlIllolly. Rallicr, as our Suprellle

Court has observed, all " Iiupeachul 1 fitness slay always endeavor to explillii away the ellCct of the

stlpposed Inconsistency bl' relating wha(evc r CIrC11l1lStancCS would llillUrall)' rClllOW 0." C0m, 1:

Ak•5sio, 169 A. 764, % lie' ( Pit. 1934) ( quoting 1 ,1 1ig iorc on 1:'v- Hence, 2d ed., vol. 5, ' IOd<1 at i0 l).

Here,,J.M.'s 111col1Slstellt testllllony was ll ot" explained awa} by the Coininollwealth, but by,J.M. herself. Vol. III at 194-95, 20.5-206. Her exphuialion was first elicited by delense counsel

oil cross examinafion, ; dcr defense counsel was Billy awa'c ol" how.I.M. had been instructed a( the

prelinumiml hearing..I.M. was asked wily slit had denied using drugs in her preliminay hewing tesliniony, and she stated plat. she had been instl ud-ed by the assistant. district. attorney not to mention drugs. Id. at 1911.-95. She gave (lie sane explalation oil redirect. ex amination, testilying that. she had been advised that she was not. permitted to implicate Defendant in unchaged crimes. Irl. at 20.5-206. " NArhen astatement. is made from 1110 11'ltlless stwld which is at va-iaice with all ew -lier statement. ] Made by the same person ald all explalatioll is givell is to why the earlier statement was made, the acceptability ol' this expl,ulation is exclusively for t:lle July to detel-iuinc. I1' the eX])IalatJon lIll])i'eSSCS (he,]L11y ilS i'ei1s017ab1e, they iu'e at hoerO' t0 accept the lil(Cl' lCStlIIlOI1)'. AAssic) at 766-67. Delendai)t's ability to attack.I.M.'s credibility avas limited only by the reasonableness of het' explaiatlon, not. by my en-or of* the Court.

Defendalt also argues that. the Court " erred by prohibiting defense counsel 1*ron1 describing JI.Mj as having lied about. drug Ilse under the Con -inionwe'allli's ( Ilrectlon," again staling that ( lie COUrt undercut Defenda7t:'S ability to attack,I.M.'s credibility. Post-Sentence Motion at 9 6. Oil recross, alier.I.M. had explai ned her inconsistent testimony on cross and redirect, delense counsel be•ui to ask J.14, to acknowledge that she was telling the,jin),that the assistant district attorney had (lirected her to " lie under oath." Vol. III at 214. The Court sustidned the

Commonweal I Ii's Ob]ection and described defense counsel's statement as " a mischuacterizatioll of '

circumstances that. we al -e very well aware of." Id.

Prior to Closing argu ments, the assistant. dlstlicl attorlic)' asked " that there be no lin'ther 111Slllllat1011s IMAC dul'ing closings about nic doing something Improper here. Ithink that's inappropriate, because legally I have to tell people not to bring Icertail evldencel 111, and I mean those insinuations are inappropriate." Vol. I1% at 15. The Court rule(1: " I'm not going to limit Idelense coinlsell in terms ol'challengring the Credibility of the victim in the case in her closing

14. *15 :u•gtnnent, but Iaun going to say directing that challenge to the: Commonwealth attorney Ithink no. Iwouldn't. approve of that. Ithink fiat that kind of lwitness preparation occurs all the ( line, and it WOUld be improper to argue to the July that somehow the Conunonweallh's attorney in this par icular iilstallce was acting unethically and encouratring periuly. Idon't. think under all these circumstances that:'s abasis for w-gument in this case." Id. at 15-1{i. As this ruling snakes clear, the Court's prohibition against describing.I.M. as having lied under oath a1 the Conurlonwealeh's direction was slot. alimitation on Defendaull's ability to challcnge.j.M.'s credibility, but rattler limited Delendiult Irotll imputing improper conduct to the assistant. district attorney when no improper conduct occurred.

The assistant district attorney argued that. Rule 404(b) of the Pennsylvania Rules of Evidence- ba1TCd the Commonwealth 11'oln introducing evidence diat.I.M. arranged to purchase mariiilana from Defendant or that J.M. and Defendant smoked nlariju.ula together on the night in question, and that it only becaine admissible when the defense opened the door to it by eliciting dial evidence from Officer Hlnlcs. Vol. 11 at 222-`1.5; Vol. 1V at. 9-12. The assistant district attorney stated: " Itried to keep that out:. Iaun trying to follow vdiat fie law is to protect the Delell(kuit's

rights. The defense leas known that ( 1.14.1 disclosed the drug use 11 .0111 the vely beginning, because

it's in (lie police reports. But Ialso have 10 tell illy witnesses that I 11C1' cannot say cerlaln tulip

during the trial or it can cause it mistrial for file Commonwealth." Vol. IV at. 11-12. " Islid not do any of this to protect the victim or not tell the Stoll' of the case. Idid this to protect the rights of the Defendant, because there caul be an inference drawn drat if somebody is adrug dealer they are it person more likely to coninut. acrllllc o1' e:wCll the filed if somebody is using drugs." Id. at 10.

Defense counsel argued that the evidence would have been admissible under the 1esgestac

exception. Irl. at G; Post-Sentence Motion a(¶ 6. "The I es ustae exception to the general -

proscrlptloll against evidence of OdICI' Criminal acts is also known as the ` complete sloe-'' rationale:,

as such CvidellCe is a(llllissil)1C in order to complete the story of the crime on trial by proving its Immediate context of happenings neat' in lime and place. Evidence subject. to this exception is admissible only where [lie probative value ol'the evidence olltiveighs the tendency to prejudice the jury." Coil). v..Sebolka, 20.5 A.3d 329, 344 (Pa. Super. 2019) (internal citations oinitte (1). "'Phis excel)don is applicable in sltuati011S 1w11C1-C CbC dlStjndC C1 .1111CS wel'e part Ol aChain 0i' Se(InenCe OI events which formed the history of the case and were part. of its natural development. In other words, the exception applies to prior bad acts which ai-e so cleuly and inextricably mixed up with

the history of' the guilty act. itself as to 1 01-111 pai-t of one Chain of relevant. circumstances, aild so ,

could not he excluded on the presentation of the case before the juiy without the evidence being rendered thereby unintelligible." Com, is Knoble, 188 A.3d 1199, 120,5 ( Pa. Super. 2018) (internal cllat]ons onlitted).

The evidence in question would not. have been admissible by the COIl1ll10nWealtll under the resgeslac exception. It was not necessaly to make the sloi),intelligible, acid it would have had no probative value to tile. Coinnionwcaltll's case. The Commommalth woul(I have had to file prior written notice under Rule 404(b)(3) before seeking the admission 01 the evl(lence, an(I [lie lack of such notice would have indicated to Defendant that the Commonwealth did not intend to introduce it..Sce Vol. IN,at 9-11.

Prior to deliberations, when instructing Elie jury on its duty to assess the credibility of witnesses, the Court stated: " And, by exalnpl:, Iwould refer )'011 to tesllmolll' relating'' to the

inconsistency of the victim's testilnon}', that being [ J.A4.1, relating to the nlariluana use alleged to

have occurred in this circumstance. I1 is up to you ultimately to determine the value and cre(libilil.v of that ( CStil)1011y. YOU did hear evidence in this case that the xvtincss, this witness in pal -ticular, llw have been instructed to testily in acertain way during acertain procedure. That happens on occasion. Attorneys ?both Coll monweallfl attol-Ileys as we ll its (lejellse allorileys, have to 1)I -Cpare a

witness and sonictinies limit awitness ill terms of their testimony. At. (lie end of the day it. is up to

) ,oil, thc .jur r, to determine Iwhellicr dic Vlctllll ill tills Case gave 111conslsicilt testlln011y intentionally

or perhaps unintcn(iorlall)r or she was told to do so. Also )roil should be considering the reasonableness of any particuly-testimony you heard in this case ill light of all of the evidence in tllis case;." Vol. IV at 69-70.

3. Admissibility of reposted meme

Delendant. argies that the Court erred ill ruling aga=inst the admission into evidence of a meme.j.M. rcposted on Facebook two d ays alter the alleged rapes (which stated: " ruck sex. Pill tryn to be the reason you smile everyday. We still gone luck tho." Vol. III at. 168; see H. at 166-85. De(endarit m-gues that the mposted menie. showed J.M.'s " state of mind ill the ( lays immediately lollo«ing the night in question" mid was relevant to the juilr's decision as to her " credibility ill general." Post-Sentence Motion at 17.

Th e Comnlonwealdi argu ed that die menlc was Inadmissible under Pennsy lvaIiia's Rape Shield L-nv, 18 Pa.C.S, S3101, which renders it victim's past sexual conduct alld reputation inadmissible ill sexual assault trials and " is Intended to prevent a trial From stinting its 10CUs frolll the culpability of the accuse(( towards the virtue mid chastity ol'the victim. This protective measure is salient where delcndmits atlempt to utilize evidence of' the complainant's alleged promiscuity to bolster their claini of consent." Coo. 1: Rogcls, 250 A.3d 1209, 1216 ( Pa. 202 1) (internal citations omitted). However, " tile shield law slay not be applied Ina ] Manlier That Violates a delelldailt 's constitutional right to afair trial, including his right to present. evidence .uld cross-examine witnesses, " :Uld ilia) -- be " unconslitutlonal its ap plied ill circumstances where the dl'Icndant seeks to introduce evidence for reasons unrelated to inipiig•lling the complainant's charactel', and the probative value of that evidence outweighs the daulger of unl;lir prejudice." M. at 1216-17.

The Commonwealth also argued drat aphotograph,l.M. posted on Facebook on December 26, 2020 should be inadmissible under the Rape Shield Law. Vol. III at 190-93; Defense Exhibit C. Defense counsel argued that the nhemc and photograph both showed dlat.J.M. "lwas comfortable enough mid not. as tnium ttizeel as site may lead you to believe." Vol. III at 183. The. COlmllonwealdl argued Delcndant only vaulted to introduce these items into evidence "because the inference is that she's acting slutty." Id

The COUrt ruled that the nlenle was inadmissible under the Rape Shield I.a►v, but admitted the photograph. Vol. III at. 181-85. N1lhile the Commonwealth argued that the photograph was

csexy," 4 It was not explicitly or overtly sexual and did not. directly impllcate.I.lM.'s sexual conduct. or

reputation. Id. at 176-77.,1.M. Was able to explain why she posted the plhotograph without having

O testily C as to her sexual COMIUCt 01 -reputation or her att.ltUde about sex in general, stating merely

that site posted it to make llersell feel conitdent and live her lllc like nothing had happened. Vol. Ill at 192-93. As such, the photograph posed it minimal darigcr of unhur prejudice. Although 11:5 probative value was also low, it slid depic(.1.M. looking happy the day alter the alleged rapes and could be argued as corroborating Gags:. Uttonc's lestlmony thal.I.M. " seemed title" auld " acted like leer normal sell" following the incidenC..Sce Vol. lI at 111.6-5 1. For these reasons, the Court admitted ( lie photop-apli.

The mcnle, however, was both significantly more prejudicial and even less probative. "I'Ile COnlmomwCalth argntcd that the nicnlc was protected by the Rape Shield Law because it was it statement of.I.M.'s intention to have sex. Vol. Ill at 181. The Colu-t agrees. The nleme directly involved.I.M.'s sexual conduct atld/or reputati011 tll that 11 states her altilllde toward sex. The attitude stated In llte lmeme could be interpreted as somewhat Casual or even promiscuous and, as such, poses it serious danger Ol' unfair prejudice. It is unlikely thal,l.M. could have testified about why slhc posted the menlc without having tO discuss her attitude toward sex, which is neitlher

relevant nor appropriate. On the other hand, the nleme's probative value as to,J.M.'s credibilil)' is

extremely limited. To the extent. that. it. had any non-sexual probative value at all, it would male the

same point as the photograph alid Gage Latone's testimony—that,J.M. was acting normal alter (lie

incident—rllld ivould therefore be i11C1'Cly CunlulativC. At hest, Delendant could al-gue the iilelllc shows diatJ.M.'s general attitude toward sex was not altered 1))' whatever occurred between her alld Delendallt, but there was no evidence that arape victim's genera] aulttlde toward sex would

necessarily be altered alter the incident. Defendant presented n0 expei'l ( CSlilll011)' On that. subject,

alld his argument. approaches (as file Commonwealth argued on arelated point) all 1nlplicalloll "drat somebody who was raped is to never Have Sea again." Vol. III at. 163. At Worst, the nlenle would portray JA4. as having apromiscuous illindset two days alter the alleged rapes auul invite the ,jury to infer that site is promiscuous generally—the exact situation the Rape Shield U wwas enacted t0 protect against.,J.M.'s " virtue all(l Chastity" Were not. Oil trial and Defendwit cannon attack her credlbllit.}r 1n' al'guing, essentially, that. arape victim should be expected 10 dlSpla)' 11101 -C wlrttlC alld chastity following her rape.

Delendant relies on Com D: hi/Zell, 680 AM 851 ( Pa. 1996), which hell that the Rape

Shield Law did not bau• testimony that all intoxicated complaillauli lladC sexually provocative Slatemen(s to afireman auxl emergency room physician and acted 111 ajovial all(] Illrtati011S 111ill1ner

immediately followwing an alleged sexual assault. The testimony was (tiredly relevant. I.(-) ( lie defense

that the complainant had been sexually aggressive toward the defendant and had fabricated die accusation in retaliation for his rejection of"her advances. Id. at 8.5:3. Our Supreme Court held that

99 [ lie statements evidence (lie Coll i0a inaiit's state of mind shortly all-er (and b)' implication during)

her alleged sexual assault told are therefore rClevwit and admissible to impeach her credibility. The Rape Shield Law was not designed to exclude evidence ol'a victim's statements (opersons which are pau•I of and relevant to the ongoing episode in which the alleged Criminal activity lakes place." *20 M. at 854. The instimt case is distinguishable from Killed because the mane was posted t..wo days

Iater hind Nrns not evidence o1j.M.'s slate of mind shortly alter or ( IM-Mg tile: InCident. It, had no

direct relevance to Defendant's defense: that the sex was consensual and, as discussed above, could not. bolster Defendiuit's attack on,).M.'s credibility without impermissibly attacking her virtue and chastity.

CONCLUSION

For the foregoing reasons, Defendant's Post:-Sentence Motion is denied.

(n CO