Com. v. Jones

• Decision Date: 09 June 2003
• Citation: 826 A.2d 900
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Robert Booker JONES, Appellee.
• Court: Pennsylvania Superior Court

826 A.2d 900

COMMONWEALTH of Pennsylvania, Appellant, v. Robert Booker JONES, Appellee.

Superior Court of Pennsylvania.

Argued November 7, 2002.

Filed June 9, 2003.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellant.

Angela R. Carsia, Pittsburgh, for appellee.

Before: DEL SOLE, P.J., McEWEN, P.J.E., HUDOCK, JOYCE, STEVENS, TODD, KLEIN, BENDER and GRACI, JJ.

HUDOCK, J.

¶ 1 This is an appeal from an order that partially granted and partially denied the Commonwealth's motion in limine.¹ We reverse in part.

¶ 2 Robert Booker Jones (Appellee) was charged with one count each of rape, involuntary deviate sexual intercourse and aggravated assault.² The charges stem from an incident that allegedly occurred on December 16, 1999. On October 4, 2000, the trial court convened a hearing to consider several pretrial issues. On that date, the Commonwealth moved to amend the information to add charges of criminal attempt and simple assault. The parties stipulated to the DNA test result report. A discussion followed concerning Appellee's alleged prior sexual activity with the complainant. Defense counsel evinced the intention to introduce evidence of the complainant's prior convictions for prostitution and the fact that she was on probation for prostitution at the time of the assaults alleged here.

¶ 3 Because consent is an issue in this case, the trial court ruled that evidence of Appellee's prior sexual activity with the complainant would be admissible at trial. N.T., 10/4/00, at 7. The Commonwealth objected and the hearing was continued to allow further investigation and so that defense counsel could prepare a written notice of intention to offer evidence of the complainant's prior sexual conduct. On October 10, 2000, counsel filed a notice pursuant to subsection (b) of Pennsylvania's Rape Shield Law, 18 Pa.C.S.A. section 3104. (The provision in question is sometimes referred to as the Rape Shield Statute.)

¶ 4 The trial court conducted a two-part hearing on October 11-12, 2000. Appellee's counsel explained that the defense theory is that the complainant is a prostitute and that the acts underlying the charges against Appellee occurred in the course of voluntary sexual activity for hire. The Commonwealth moved to exclude all evidence of prostitution. The trial court ruled that the complainant's prior sexual history with Appellee was admissible but evidence of her sexual conduct with third parties prior to the alleged rape must be excluded. Thus, the complainant's prostitution convictions prior to the date of the alleged assault were ruled inadmissible. But the trial court determined that one of her convictions was predicated on acts that occurred after the rape alleged against Appellee, and that this would be admissible at trial even though it involved a third party.

¶ 5 The trial court acknowledged that women in the complainant's position are very vulnerable to attack. N.T., 10/12/00, at 10. The trial court explicitly stated that an allegation of prostitution is not a defense to a rape charge. Id. But the trial court also pointed out that the necessity of protecting the rights of the complainant must be balanced against the constitutional mandate that a defendant is entitled to a fair trial. Id. at 11.

¶ 6 The prosecutor immediately informed the trial court the evidentiary ruling posed a "substantial handicap" and stated that an interlocutory appeal would be taken as of right. However, the prosecutor also asked the trial court to certify the matter as a controlling question of law on which substantial grounds exist for a difference of opinion. The trial court agreed and Appellee did not object. Id. at 14. On October 27, 2000, the trial court certified that its evidentiary ruling implicates a controlling question of law as to which there exists "substantial grounds for difference of opinion." Trial Court Order, 10/27/00. The trial court indicated an immediate appeal "may materially advance the ultimate termination" of the matter. Id. Therefore, the trial court stayed the proceedings against Appellee and granted the Commonwealth permission to appeal the adverse pre-trial ruling. Id.

¶ 7 On November 1, 2000, the Commonwealth filed its timely notice of appeal. In addition to its petition seeking a permissive appeal under section 702(b) of Title 42, the Commonwealth also filed a certification pursuant to Rule of Appellate Procedure 311(d) stating that the interlocutory appeal was taken as of right, in good faith, from a trial court ruling that substantially handicaps and/or terminates its prosecution of Appellee. See Certification, 11/1/00. The trial court entered an order requiring a Rule 1925(b) statement to be filed and the Commonwealth complied. We dismissed the Commonwealth's petition for permission to appeal stating "the validity of the current appeal in this case is not affected by the order." Order, 12/19/00. The appeal subsequently was certified for argument en banc to address the question of whether this Court has jurisdiction pursuant to Rule 311(d).

¶ 8 The issues presented are: (1) whether the Superior Court has jurisdiction over the appeal; and (2) whether the trial court erred in ruling that the complainant's conviction for prostitution is admissible when that conviction is predicated on acts committed with a person other than Appellee after the alleged rape. As noted, the trial court explicitly found that its ruling on the Commonwealth's motion in limine substantially handicaps the prosecution of this case. N.T., 12/12/00, at 14. Furthermore, Appellee does not claim that the Commonwealth has proceeded in bad faith or that this appeal is frivolous. Thus, the question of whether the Commonwealth has, in fact, proceeded in good faith has not been raised and is not before us.

¶ 9 A challenge to the authority of an appellate court to conduct review of a pre-trial order is a jurisdictional matter. Commonwealth v. Rosario, 419 Pa.Super. 481, 615 A.2d 740, 742 (1992), aff'd, 538 Pa. 400, 648 A.2d 1172 (1994). The Commonwealth contends that Rule of Appellate Procedure 311(d) confers jurisdiction over an appeal from an interlocutory pre-trial order which denies a motion in limine so long as the prosecutor is prepared to certify that the order substantially handicaps or terminates the prosecution. Appellee counters that Rule 311(d) only permits such appeals when the trial court order excludes Commonwealth evidence. The Commonwealth does not claim the Rule authorizes, in all possible instances, an automatic pre-trial interlocutory appeal at the sole discretion of the prosecutor. Thus, we need not resolve that question as it is not before us.

¶ 10 The Rule itself states that,

In a criminal case, under circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa.R.A.P. 311(d). The Rule does not explicitly limit the Commonwealth's right of interlocutory appeal to any particular class of pre-trial orders. Rather, it indicates that the Commonwealth may proceed "under circumstances provided by law." Id. The Commonwealth acknowledges that the body of case law decided both before the Rule was promulgated and after inception of the Rule emanates from instances in which a trial court suppressed evidence favorable to the prosecution. However, the Commonwealth contends this is a distinction without a difference in view of the underlying rationale for permitting the prosecution to take an interlocutory appeal as of right from an adverse suppression ruling.

¶ 11 The parties do not dispute the Commonwealth's right to appeal the grant of a pre-trial suppression motion. They agree, as they must, that the Commonwealth's certification under Rule 311(d), in and of itself, provides an absolute right to appeal from an adverse pre-trial suppression ruling. See Commonwealth v. Pitts, 740 A.2d 726, 732 (Pa.Super.1999)

(citing cases). Indeed, our Supreme Court has explained that the entire purpose of amending Rule 311 to add subsection (d) was to "permit an interlocutory appeal as a matter of right to the Commonwealth in instances where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution." Commonwealth v. Rosario, 538 Pa. 400, 404, n. 3, 648 A.2d 1172, 1174 n. 3 (1994).

¶ 12 It is clear from the context in which the above statement was made that the Supreme Court's attention was focused on the effect of a pre-trial order granting suppression. See id. (citing cases). Nevertheless, our Supreme Court subsequently extended the reasoning of Rosario and has held that the Commonwealth may appeal a pre-trial order granting a motion in limine that excludes evidence and has the effect of terminating or substantially handicapping the prosecution. Commonwealth v. Matis, 551 Pa. 220, 231, 710 A.2d 12, 17 (1998). Matis relies on an earlier Supreme Court determination that no fundamental distinction can be made between a motion to suppress evidence and a motion in limine concerning the admissibility of evidence:

There is no essential difference between suppression rulings and rulings on motions in limine to admit or exclude evidence. In both cases, a pretrial ruling is handed down which admits or excludes evidence at trial, and in both cases, once a jury is sworn, the Commonwealth may not appeal from an adverse ruling. That suppression motions are always of constitutional dimension and motions in limine are only sometimes of constitutional dimension is of no import, for in both cases, without an immediate right of review, the Commonwealth's case may be so hampered that the Commonwealth may be unable to proceed.

Commonwealth v. Gordon, 543 Pa. 513, 517, 673 A.2d 866, 868 (1996).

¶ 13 Gordon originated as a Commonwealth appeal from a pre-trial order that prevented the...