Com. v. Leap, J.Com. v. Leap, J.
Appellant, Joshua L. Leap, appeals from the April 10, 2018 Judgment of Sentence entered in the Monroe County Court of Common Pleas after a jury convicted him of Rape and related charges. After careful review, we affirm.
BACKGROUND
The relevant factual and procedural history, as gleaned from the certified record, is as follows. In July 2015, then-14-year-old B.L. (“Victim“) attended an overnight family reunion with her then-15-year-old boyfriend, M.B.K. (“Boyfriend“). Appellant is Boyfriend‘s cousin and was 28 years old at the time of the family reuniоn. At the reunion, Victim and Boyfriend consumed alcohol, smoked marijuana, and then went to sleep in a tent around midnight.
Around 4:00 AM, Victim awoke to find Appellant on top of her. Appellant pulled Victim‘s pants down, pinned her to the ground, put his hand over her mouth, and raped her. After Appellant raped Victim, he spoke to her about thе rape.1 Victim disclosed the rape to another cousin, who, in turn, told Boyfriend. Later that day, Appellant told Victim and Boyfriend that he would give them marijuana, or whatever they wanted, if they did not say anything to get him in trouble.
Upon returning home, Victim told her mother about the rape. Victim‘s mother called police and took Victim to the hospital, where Victim received a sexual assault examination. The examination and DNA testing revealed that Appellant‘s semen was on Victim‘s clothes and inside Victim‘s vagina. Victim gave consistent statements to hospital personnel and the police.
Police arrested Appellant and the Commonwealth charged Appellant with Rape, Statutory Sexual Assault, Sexual Assault, Aggravated Indecent Assault, and Indecent Assault.2 After a preliminary hearing on November 20, 2016, the court held the case over for trial.
At trial, Victim testified to the above facts. On cross-examination, Appellant tried to impeach Victim with a post that appeared on Victim‘s Fаcebook page. The post was a picture of a typed sentence that was authored by an unknown individual, reposted by someone uninvolved in this matter over a year before Victim accused Appellant of rape, and reposted on Victim‘s Facebook page on or around the date of the scheduled preliminary hearing. The post stated, “If we have sex & your behavior changes afterwards I‘m gonna say you raped me & technically you did bc you ain‘t the nigga I thought you was.” Defendant‘s Exhibit 11, Marked for Identification Purposes. The trial court sustained the Commonwealth‘s objection to the use of the Facebook repost. N.T. Trial, 1/9/18, at 82.
The Commonwealth next presented testimony from Carol Haupt, who was qualified to testify as an expert in the dynamics of sexual violence, victim responses to sexual violence, and the impact of sexual violence on victims during and after being assaulted pursuant to
The Commonwealth called several additional witnesses, including a Police Communications Officer, two police Troopers, a nurse practitioner, a serology supervisor, and a forensic DNA scientist.
Appellant testified on his own behalf and stated, inter alia, that, on the day of the reuniоn he thought Victim was 18 years old. N.T. Trial, 1/11/18, at 92. Appellant acknowledged that he went to sleep in the same tent as Victim and Boyfriend and stated that he woke up early in the morning to move into a nearby house to sleep because he was cold. Id. at 84-119. Appellant testified several times, on both direct and cross-examination, thаt he did not remember anything between the time he fell asleep in the tent and the time he woke up. Id.
Appellant also called various fact and character witnesses, including his ex-fiancé Erin Labar, to testify on his behalf. Appellant once again tried to introduce the above-referenced Facebook post, by asking Ms. Labar if she observed Victim‘s Facebook posts. Id. at 51. The trial court once again sustained the Commonwealth‘s objection to the use of the Facebook repost and ruled it inadmissible. Id. at 56.
On January 11, 2018, a jury convicted Appellant of all charges. On April 10, 2018, the trial court sentenced Appellant to an aggregate term of 90 to 244 months’ incarceration and ordered, inter alia, that Appellant was not to have unsupervised contact with anyone under the age of 18. Appellant filed a timely Post-Sentence Motion, which the trial court granted in part to modify the sentencing condition to allow Appellant to have contact with his own children. The trial court deniеd the remainder of the Motion.
ISSUES
Appellant raises the following issues on appeal.
- Did the trial court abuse its discretion by sustaining the Commonwealth‘s objection to the introduction of [Victim]‘s Facebook post which suggested that [Victim] had consensual sex with [Appellant] and indicated a willingness to lie аbout being raped by him?
- Should Defendant‘s Motion for a Mistrial have been granted after the jury heard inadmissible and incurably prejudicial testimony from the Commonwealth‘s Expert Witness who testified upon prompting by the Commonwealth as to credibility of a rape victim‘s testimony.
Appellant‘s Brief at 7.
LEGAL ANALYSIS
Issue 1
In his first issue, Appellant avers that the trial court abused its discretion when it prеcluded Appellant from introducing a post from Victim‘s Facebook page into evidence. Appellant‘s Br. at 15. Appellant argues that the post was evidence of Victim‘s bias against Appellant and her intention to testify falsely against Appellant and that he should have been able to cross-examine Victim regarding the post. Id. at 17-18. Appellant contends that the preclusion left him without a crucial piece of evidence to support his theory of the case that Victim “mistakenly had consensual sex” with Appellant and when Boyfriend found out, she claimed that Appellant had raped her. Id. at 15-18.
Our standard of review is well settled: the admissibility of evidence is within the sound discretion of the trial court and we will not reverse absent an abuse of discretion. Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015). Likewise, the scope and limits of cross-examination are within the discretion of the trial judge and we review the trial judge‘s exercise of judgment for a clear abuse of discretion. Commonwealth v. Birch, 616 A.2d 977, 978 (Pa. 1992). “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Poplawski, 130 A.3d at 716 (citations omitted).
Relevance is the threshold for admissibility of evidence; evidence that is not relevant is nоt admissible. Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008);
Under Rule 607, “[t]he credibility of a witness may be impeached by any evidence relevant to that issue[.]”
Instantly, the trial court found the Facebook post to be irrelevant and highly prejudicial, and, therefore, ruled the post to be inadmissible for impeachment purposes pursuant to Rule 607 and Rule 608. The trial court opined:
Trial Ct. Op., filed 8/31/18, at 11.[B]ecause the words were not [V]ictim‘s, the language of the post did not relate to [V]ictim‘s reputation for truthfulness or untruthfulnеss, the post was generated 13 months before the sexual assault on [V]ictim, the post does not relate to the events that gave rise to or the persons involved in this case, the original author is unknown, neither [Appellant] nor [V]ictim was mentioned, identified, or referenced in the post, and counsel for [Appellant] did not provide сontext for the post, the post is irrelevant. For the same reasons, to the extent relevance may be found, the prejudicial impact of the post, to both the Commonwealth and [V]ictim, outweighed its probative value.
We find no error in the trial court‘s conclusion that the Facebook post—a picture of a typed sentence, authored by an unknown individual, reposted by someone uninvolved in this matter over a year before Victim accused Appellant of rape, and reposted on Victim‘s Facebook page on or around the date of the preliminary hearing—is not relevant, and therefore, not admissible. Once the trial court found the Facebook post to be irrelevant, the court properly exercised its discretion in ruling that Appellant could not impeach Victim with that evidence. See Cook, 952 A.2d at 612; Guilford, 861 A.2d at 369. Accordingly, we find no abuse of discretion.5
Issue 2
In his second issue, Appellant avers that the trial court abused its discretion when it denied his Motion for a Mistrial after expert witness Ms. Haupt gave her opiniоn about the credibility of a hypothetical rape victim. Appellant‘s Br. at 27. Appellant argues that the expert‘s testimony impermissibly bolstered Victim‘s credibility, and the instruction given by the trial judge was not sufficient to cure the inadmissible and prejudicial testimony. Id. at 27. Therefore, Appellant contends, he was deprived of the right to a fair and impartial trial. Id. 31.
Instantly, there is no dispute that the testimony in question was impermissible under Section 5920, which, inter alia, allows an expert testifying under this Section in certain criminal proceedings to give opinions regarding specific types of victim responses and victim behaviors, but prohibits the expert‘s opinion regarding the credibility of any witness, including the victim. See
As the trial court emphasized, the curative instruction did not stand alone; it was “bookended by preliminary instructions, which were referenced in the curative instruction itself, and instructions given as part of the final charge which also operated to remove or alleviate any potential taint.” Trial Ct. Op. at 20. The trial court instructed the jurors on multiple occasions throughout the trial that they were the sole judges of the facts and sole judges of the credibility of all witnesses and the weight of the evidence. Id. We presume that the jurors followed the trial court‘s instructions and decline to find that Ms. Haupt‘s one-sentence opinion regarding the credibility оf a hypothetical victim deprived Appellant of a fair trial. See Brown, 786 A.2d at 971.
Appellant cites Seese, supra, and Commonwealth v. Maconeghy, 171 A.3d 707 (Pa. 2017), to support his argument that he was deprived of the right to a fair and impartial trial because of Ms. Haupt‘s opinion about the credibility of a hypothetical rape victim. Appellant‘s Br. at 28-30. However, we can easily distinguish these cases: unlike in this case, the trial court did not give a curative instruction to the jury in either of those cases. Accordingly, Appellant‘s argument is unpersuasive.
Upon review of the record, including the brief nature of the reference, the court‘s prompt instruction, and our standard of review, we find no error in the denial of a mistrial. The curative instruction set out above was sufficient to overcome any potential for prejudice. The trial court did not abuse its discretion and Appellant is not entitled to relief on this issue.
CONCLUSION
In sum, the trial court did not abuse its discretion when it found the Facebook post to be irrelevant and ruled that Appellant could not use the post to impeach Victim. Moreover, the trial court did not abuse its
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/19
Notes
Id. at 143.So members of the jury, when I was giving you my preliminary instructions I told you that I was the judge of the law and I‘d be giving you the law. I also told you that you were the judges of the facts. As the sole judges of the facts individually and collectively you are also the sole judges of the credibility of all witnesses and that‘s true whether the witness is labelеd as an expert, as a lay witness, or any other type of witness. And so you and you alone are the judges of the credibility of anyone who testifies here in court and there is no other witness, expert or otherwise, who may take that function away from you. And so you just heard what may be construed as an opinion in that regard and you must disregаrd that in your deliberations and draw your own assessments based on the evidence, the law that I‘m going to give you, and as I said before you may listen to the arguments of the attorneys in the end and you may give them some weight if those arguments are supported by the facts and appeal to your sense of reason and judgment.