Commonwealth v. Rogers
| Decision Date | 18 May 2021 |
| Docket Number | No. 8 EAP 2020,8 EAP 2020 |
| Citation | 250 A.3d 1209 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Eric ROGERS, Appellant |
| Court | Pennsylvania Supreme Court |
Aaron Joshua Marcus, Esq., Karl Lawrence Morgan, Esq., Defender Association of Philadelphia, for Appellant.
Lawrence Jonathan Goode, Esq., Benjamin Taylor Jackal, Esq., Meredith Leigh Mill, Esq., Philadelphia District Attorney's Office, for Appellee.
Amal Munas Bass, Esq., Women's Law Project, Ronald Eisenberg, Esq., Michelle Ann Henry, Esq., Jennifer Creed Selber, Esq., Joshua D. Shapiro, Esq., Lisa Ann Swift, Esq, Raymond Jay Tonkin, Esq., Pennsylvania Office of Attorney General, for Appellee Amicus Curiae Pennsylvania Office of Attorney Gene.
Terry L. Fromson, Esq., Women's Law Project for Appellee Amicus Curiae AEquitas, Women's Law Project, and 26 Additional Organizations.
OPINION
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.
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 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 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:
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.
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 ().4 The panel stated that it lacked 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 (). See generally Commonwealth v. Brown , 538 Pa. 410, 438-39, 648 A.2d 1177, 1189 (1994) ().
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...
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