Com. v. Reich, S.

J-A03012-25 2025 PA Super 126

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SETH JASON REICH :

:

Appellant : No. 670 EDA 2024

Appeal from the Judgment of Sentence Entered November 20, 2023

In the Court of Common Pleas of Chester County

Criminal Division at No.: CP-15-CR-0003338-2021

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

OPINION BY STABILE, J.: FILED JUNE 24, 2025

Seth Jason Reich, Appellant, was found guilty after a jury trial of

committing sexual offenses against the minor victim, M.R. Appellant was

convicted of sexual assault (18 Pa.C.S.A. § 3124.1); indecent assault (18

Pa.C.S.A. § 3126(a)(1)); simple assault (18 Pa.C.S.A. § 2701(a)(1); and

selling or furnishing alcohol to a minor (18 Pa.C.S.A. § 6310.1)).1 He was

sentenced by the Court of Common Pleas of Chester County (trial court) to an

aggregate prison term of three to 10 years. In this appeal, Appellant contends

that he is entitled to a new trial because the trial court erred in excluding

evidence of the victim’s consent, limiting the scope of the defense’s closing

statement, and admitting into evidence statements of Appellant obtained by

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1 In a separate case that was consolidated for trial purposes with the present

matter, Appellant was charged with, and acquitted of, additional counts

relating to a second alleged victim, E.A. The offenses were institutional sexual

assault; corruption of minors, and unlawful contact with a minor.

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police in violation of his Miranda rights. Finding no merit in these claims, we

affirm.

In 2019, Appellant was 38 years old and employed as a high school

drama teacher. Over the summer of that year, Appellant ran a theater

program, and he hired M.R. as a stage manager. M.R. had recently graduated

from the high school where Appellant was employed; she was also a good

friend of E.A., another former student at the same high school who performed

as an actress in one of the plays produced by the summer theater program.

M.R. was aware that, for the previous few months, Appellant and E.A. had

been romantically involved.

As the end of the summer neared, Appellant, M.R., and E.A. began

planning a going-away party for M.R., who would soon be returning to college.

On August 25, 2019, E.A. created a group chat on the smartphone application,

“WhatsApp,” so that she, M.R., and Appellant could text each other and plan

their party. Over the next two days, the group used WhatsApp to not only

discuss the party, but also to discuss several sexually explicit topics. This

included the filming of a pornographic film, and M.R. stating that Appellant

could have sex with M.R. and E.A. at the hotel where the three would meet

and spend the night.

The group chats continued until minutes before Appellant, M.R., and

E.A. met at the designated hotel room, at about 8:00 p.m., on August 27,

2019. It is undisputed that after they arrived, the three drank large quantities

of liquor and engaged in various forms of sexual contact with each other.

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For the next two days, Appellant, M.R., and E.A. continued texting each

other on the WhatsApp group chat. M.R. initially made light of what had

happened during the party in the hotel room. But during the group’s

discussion of their sexual acts with each other, M.R. expressed regret over the

incident, saying she had not consented to sex with Appellant, that she had

blacked out due to alcohol consumption, and that she was traumatized.

However, in the same conversation, M.R. also wrote that they should

meet for group sex again, that she wanted Appellant to engage in BDSM

activities during a future sexual encounter, that she was annoyed Appellant

and E.A. were together without her, and that the incident at the hotel was

only a “medium mistake.” N.T. Trial, 5/18/2023, at 149. Days later, after

returning to her college, M.R. continued to exchange text messages with

Appellant. They remained in contact for several months, and their

communications were cordial.

Eventually, in 2021, M.R. reported the incident at the hotel to officials

of the high school where Appellant was employed, as well as to police, alleging

that she did not consent to intercourse with Appellant. E.A. corroborated

M.R.’s account, while also alleging that her own sexual contact with Appellant

had been non-consensual. She also turned over a copy of the group text

messages to verify those claims. In statements to the police, E.A. denied that

she and M.R. had ever been romantically involved with each other prior to

their meeting with Appellant at the hotel on August 27, 2019.

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As part of their investigation, detectives arranged for E.A. to make a

recorded telephone call to Appellant on June 30, 2021. The two of them

discussed their mutual regrets about having had a sexual relationship.

Appellant repeatedly admitted fault for his treatment of E.A., stating that he

had a “problem,” and that he was “addicted” to his harmful conduct. See

Commonwealth Exhibit 33, 5/19/2023, at p. 7.

In the conversation, E.A. confronted Appellant with the fact that he had

supplied alcohol to both her and M.R. on the night in question. Appellant did

not dispute E.A.’s allegation, and he instead acknowledged his role in

intoxicating E.A. and M.R.:

[Appellant]: Yeah, I know, I know oh God . . . It’s just it’s uh, I’m

not making any excuses but I was coming so, so stupid. I, I, I

f***ked up and I’m, and this not, I don’t know, this is the first

time that this has happened to me. I want to just confirm that

and yes I know [M.R.] is part of this and that was, I don’t know

what was, what the f**k that was, I don’t know what the f**k

happened there and I was intoxicated, I, I shouldn’t have . . .[.]

Id., at p.11.2

One day after that call, on July 1, 2021, Appellant was arrested and

brought to a police station. He was informed that detectives wanted to

question him about alleged offenses against E.A. An officer advised Appellant

that he was free to remain silent and have an attorney present. Appellant

then agreed to speak with Detective David Maurer about the timeline of his

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2 While the transcript of the phone call between Appellant and E.A. was not

admitted at trial, it was made part of the certified record as “Commonwealth

Exhibit 33” on May 19, 2023.

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relationship with E.A., as one of the potential charges concerned whether he

had any sexual contact with her while she was still a student. Once the

questioning had been well under way, the detective broached the allegation

that he had gotten M.R. intoxicated to the point where she could not consent

to intercourse. See Commonwealth Exhibit 48, 5/19/2023, at 30.

Appellant was confused and caught off-guard by the accusation that he

had raped M.R. He insisted that he was innocent of that crime, and that he

“didn’t commit a felony.” Id. Appellant then stated that he refused to discuss

the subject further, and the interview promptly ended. See id., at 31-32.

The entire session was recorded by audio and video equipment, and the

Commonwealth later sought to introduce the recording into evidence at trial.

An excerpt of the relevant portion of the interview reads as follows:

[Detective Maurer]: But I mean like, like, uh, you, and we still

have to resolve an issue with [M.R.] in a hotel room and the

tequila that night.

[Appellant]: For under, allowing underage drinking.

[Detective Maurer]: Well for uh you can’t get somebody drunk to

the point where they can’t um defend themselves and have sex

with them.

[Appellant]: I didn’t know that occurred.

[Detective Maurer]: Even if they’re uh an adult, eighteen. you

can’t do it to anyone.

[Appellant]: I, I didn’t know that that was, I didn’t know that that

had happened.

[Detective Maurer]: And at the time [M.R.] was not twenty-one.

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[Appellant]: Yes, that I know.

[Detective Maurer]: Ok. So, that, we haven’t even gotten to that

yet.

[Appellant]: Mmm-mmm.

[Detective Maurer]: So don’t, don’t say you’re innocent and it’s all

her fault,

[Appellant]: No, no, no, I’m not, I’m not,

[Detective Maurer]: And,

[Appellant]: I’m not, lis[ten], look, I’m not saying I’m innocent.

I’m saying I didn’t commit a felony. That other event we can talk

about another time or what, obviously we’ll talk about it today,

but like,

[Detective Maurer]: That’s a felony too.

[Appellant]: I didn’t,

[Detective Maurer]: That’s like, that’s called rape.

[Appellant]: I, I did not do that. I did not do, I, I don’t know, I did

not, I do not know what that, I, I didn’t,

[Detective Maurer]: You were in the Clarion Hotel.

[Appellant]: No, no.

[Detective Maurer]: You bought a bottle of tequila.

[Appellant]: Stop, stop, stop, stop, stop. hold on, well can I just

think for two seconds about what I’m trying to understand, I didn’t

know, like I didn’t, how am I to kn[ow], I, I, it’s . . . that one I

won’t talk about.

[Detective Maurer]: ok.

[Appellant]: That’s something . . . I’m not talk, I’m not gonna talk

about that. I’m not talking about that because I,

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[Detective Maurer]: Well then I think we’re done.

Id., at 30-32.

In two separate criminal cases, Appellant was charged with several

offenses relating to E.A. and M.R., respectively. The two cases were

consolidated for trial purposes. On March 21, 2022, Appellant filed an

omnibus pre-trial motion, and an amended version was filed on June 24, 2022.

In the amended motion, Appellant sought to suppress the statements he made

to police regarding M.R. at his interview on July 1, 2021. The trial court held

a hearing on the motion and then denied it in a written order, finding that

Appellant’s constitutional rights had not been violated during the detective’s

questions about the alleged offenses pertaining to M.R. See Trial Court Order,

8/22/2022; see also N.T. Suppression Hearing, 8/30/2022, at 55-56.

The trial court reasoned that Appellant knew or should have known that

the questioning about his conduct toward E.A. would encompass Appellant’s

conduct toward M.R., as all three parties were present on the night in

question, and the alleged offenses all took place during the same criminal

episode. See N.T. Suppression Hearing, 8/30/2022, at 56. Moreover, the

questioning ceased as soon as Appellant stated that he did not want to discuss

M.R. See id.

On February 8, 2023, Appellant filed a motion in limine to admit

evidence “pursuant to Pennsylvania’s Rape Shield Statute, 18 Pa.C.S.A. §

3104.” In all, Appellant had disclosed to the Commonwealth tens of thousands

of pages of group text messages exchanged between Appellant, M.R., and

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E.A. on the WhatsApp application. Of those, Appellant proffered in the motion

that about 200 pages of text messages (the above-discussed messages

exchanged from August 25 to August 29, 2019) could potentially contain

inadmissible evidence of M.R. and E.A.’s prior sexual conduct, requiring partial

redaction. In addition, Appellant sought to admit the testimony of Andres

Bustillo Gallardo, a friend of M.R. and E.A. who had seen them kissing each

other two weeks before the night in question, contrary to E.A.’s statement to

Detective Maurer that she and M.R. had never been romantically involved until

that point.3

Under the Rape Shield Statute, a defendant accused of a sex crime may

not introduce evidence of a victim’s prior sexual conduct; however, an

exception to that general rule is that the defense may present “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.A. § 3104(a). 4

In his motion, Appellant stated in a footnote that he did not believe the

WhatsApp messages fell under the purview of the Rape Shield Statute because

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3 In an interview with Detective Maurer on July 9, 2021, E.A. denied kissing

M.R. or having a sexual relationship with her on any occasion prior to the hotel

party on August 27, 2021.

4 Courts also recognize that the Rape Shield Statute will not bar the admission

of "evidence that negates directly the act of intercourse with which a

defendant is charged, evidence demonstrating a witness' bias, or evidence

that attacks credibility." Commonwealth v. Largaespada, 184 A.3d 1002,

1006-1007 (Pa. Super. 2018).

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they did “not relate to [the victims’] prior sexual behavior.” Defendant’s

Motion In Limine Seeking to Admit Evidence Pursuant to Pennsylvania’s Rape

Shield Statute, 18 Pa.C.S.A. § 3104, 2/8/2023, at 2 n.2. Appellant advised

the trial court that the messages could nevertheless be admissible because

they bore directly on “the events in question, the relationship between the

parties, their respective expectations regarding whether they would engage in

sexual activity together at the hotel, and whether [M.R.] did in fact consent

to the sexual activity [with Appellant].” Id.

But to the extent that the Rape Shield Statute was implicated by the

messages’ reference to the victims’ sexual activity prior to the incident,

Appellant argued in the body of the motion that the messages were admissible

under the statute’s exception. See id., at 14-15. That is, he contended that

the messages could be introduced because they related to the victims’ sexual

conduct with Appellant, the victims’ consent was at issue, and the messages

were otherwise admissible pursuant to the rules of evidence. See id.

He stated further that he believed the messages were relevant under

Pa.R.E. 401 because they constituted “direct evidence about the [victims’] and

[Appellant’s] state of mind in the days and hours leading up to the incident

and are thus undeniably relevant on the issue of whether [M.R.] consented to

sex and whether [Appellant reasonably believed she was a willing participant

[in sexual acts with him].” Id.

At the conclusion of his written motion in limine to admit evidence

pursuant to the Rape Shield Statute, Appellant requested the trial court to

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either deem the proffered evidence to be admissible, or to hold an in camera

hearing to determining whether the evidence was “admissible pursuant to the

Rape Shield Law.” Id., at 18.5

At the first hearing on that motion, held on March 7, 2023, defense

counsel stated that he was intending to admit about 200 pages of redacted

WhatsApp text messages, while suggesting that the trial court should review

them prior to trial to determine their admissibility. See N.T. Pre-trial Hearing,

3/7/2023, at 2-3. The Commonwealth responded that it would not object to

the admission of relevant messages as long as they were redacted so as to

comport with the Rape Shield Statute. See id., at 6. Accordingly, the

Commonwealth indicated that it would have “no objection” to Appellant’s

motion, as the subject redacted messages implicating the Rape Shield Statute

were “permissible pursuant to the statute and they to go relevant points of

cross-examination.” Id.

The trial court then advised the parties to convene after the hearing and

decide if the admissibility of any such messages could be agreed upon:

I think that what we could do here because the Commonwealth

agrees that certain parts are relevant and are admissible, but I

think the two of you can work together to identify which sections

are relevant, and then if there are any sections that you're unable

to reach an agreement on, then maybe those are the sections that

need to come to me.

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5 The text messages spanned from August 25 to August 29, 2019. The alleged

sexual assault took place on August 27, 2019.

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Id., at 9.

The parties followed the trial court’s suggestion, and returned for a

second hearing on Appellant’s motion, held on March 24, 2023. At the outset,

defense counsel suggested that the redacted messages had been reviewed by

the Commonwealth and that it had agreed that those messages were relevant

and admissible at trial. See N.T. Pre-Trial Hearing, 3/24/2023, at 13-14.

In response, the Commonwealth clarified that its stipulation on the

admissibility of the messages was contingent on how the witnesses would

testify during cross-examination:

[Prosecutor]: I have reviewed the redactions of the 200 pages of

group texts between the victims and [Appellant]. I would agree

that all of the material that is protected by rape shield has

been redacted appropriately. As to whether they become

admissible, I think that becomes an issue that we

determine at trial. I’m not necessarily saying I think [defense]

counsel can use all 200 pages, unless they somehow become

relevant during his questioning, but I don’t object to them as

currently redacted.

****

[Trial Court]: I just want to look back at my notes because I might

have misunderstood your position last time, [prosecutor]. I noted

there was no objection and that they were permissible under the

statute.

[Prosecutor]: That [defense] counsel can use them. I’m not

agreeing that we would admit a 200 page document into evidence,

so that the jury could review it. I’m agreeing that, should they

somehow become relevant, [and] he chose to use them, those

messages that are used would then be admissible under rape

shield, but I would not necessarily agree today that the jury would

see all 200 pages of messages. I don’t think that’s an issue for

today.

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Id. (Emphasis added).

Defense counsel then argued that the texts were relevant and

potentially admissible for impeachment purposes:

[Defense counsel]: The WhatsApp chats [do not implicate the]

rape shield [statute]. I brought that to the Court’s attention and

sought a pretrial ruling. It is our position that apart from the

redactions that could implicate rape shield, that we sought

the redactions that could violate that particular statute, but

the WhatsApp redactions are impeachment. They are for

inconsistent statements. Given the Commonwealth’s position

today, because I was under the same impression the [trial court]

was, that I am going to be asking [the trial court] to review the

entire now redacted document because we need a clear pretrial

ruling on relevancy and admissibility.

Id., at 14-15 (emphasis added).

The Commonwealth and defense counsel then seemed to agree that the

messages would only be relevant at trial if they could be shown to be

inconsistent with a witness’s testimony:

[Defense counsel]: All of this goes to impeachment and

credibility of the individuals who provided – already have

provided inconsistent statements to law enforcement in

their interviews and in their preliminary hearing testimony

sworn under oath. So, I just don't want to get caught and then

have to delay things substantially.

[Trial Court]: So, I think I understand now is that because

typically we have to wait for that inconsistency or that

impeachment to happen. We have to wait for them to say

something that’s different.

[Defense Counsel]: Sure.

[Trial Court]: And typically, we won’t consider that until that

testimony has been given, but it’s your position that the

statements that have already been given as part of the

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investigation and as part of their preliminary hearing testimony

already implicates some of the documents?

[Defense counsel]: That’s correct.

[Trial Court]: And that’s why you would like them to be reviewed

in advance?

[Defense counsel]: That’s correct.

Id., at 16-17 (emphasis added).

The Commonwealth cautioned the trial court that in all, the defense had

disclosed tens of thousands of additional text messages exchanged between

Appellant, E.A., and M.R. See id., at 17. It seemed impractical to the

Commonwealth that the trial court would have to review all of those messages

prior to trial to determine whether they could potentially be relevant and

admissible for impeachment purposes. See id., at 17-19. The

Commonwealth reasoned that it would therefore be improper for the trial court

to rule preemptively on whether any of the messages, prior to the witnesses’

testimony, could all be admitted into evidence. See id., at 19.

The trial court inquired of defense counsel whether it was “asking that

they all be read to the jury?” Id. Defense counsel answered definitively, “No.

That is not what I’m asking.” Id. What followed was a lengthy explanation

of defense counsel’s litigation strategy as to the scope and purpose of its

motion in limine.

Essentially, defense counsel had produced about 31,000 total WhatsApp

text messages to the Commonwealth, but only a fraction of those (about 200

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pages’ worth), potentially implicated the Rape Shield statute. See id., at 19-

23. Appellant’s motion in limine was filed only to avoid delays in the

proceedings every time the defense sought to impeach a witness with those

specific messages during live trial testimony:

So, the WhatsApp chats became subject of this motion because

contained in them was information that could violate rape shield.

That's why they are a focus of this particular motion, but the other

[30,000 messages] didn't require a motion.

Id., at 22.

Significantly, defense counsel confirmed the understanding of the

Commonwealth and the trial court that Appellant was attempting to establish

the admissibility of the messages based on whether they could be used to

impeach witnesses:

It is impeachment and admissible and relevant at trial.

That’s why we need – at least on this issue for WhatsApp, I urge

the Court to look at them, so at least you are familiar with the

issues that are at play. I agree that, you know, there has to

be an alleged inconsistency on cross or direct before I can

get to them, of course. But I want to be able to get to them

without taking a giant time out, going back and having this

argument, you going in the back reading it, and then making a

determination on the fly whether or not it's relevant[.] I'd much

rather the Court have some background information. I'm not sure

the Commonwealth would preclude the Court from that review.

Id., at 23 (emphases added).

The trial court’s written order therefore corresponded with defense

counsel’s explanation. The trial court ruled in the order that the “What's App

messages may become relevant at trial and used pursuant to Rule 613 of the

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Pennsylvania Rules of Evidence for impeachment and/or rehabilitation of a

witness by both parties.” Trial Court Order, 4/27/2023, at para. 4(A). 6

It appears that the trial court did not at any point prior to trial make a

ruling as to whether all 200 pages of redacted WhatsApp text messages could

be admitted into evidence and published as an exhibit for the jury’s

consideration. Subsequently, defense counsel never sought any clarification

from the trial court on that point. As to the proffered testimony of Gallardo,

the trial court ruled that his observations of M.R. and E.A. kissing would be

irrelevant and inadmissible under the Rape Shield Statute. See id., at para.

4(C); see also Trial Court 1925(a) Opinion, 5/21/2024, at 41-42.

The trial began on May 15, 2023. E.A. testified from May 15, 2023, to

May 17, 2023. M.R. testified on May 18, 2023. Both witnesses were

questioned at length by the Commonwealth and the defense regarding their

interactions with Appellant at the relevant times. This included questioning

about their WhatsApp group text thread, which was a feature of Appellant’s

defense. The two witnesses each admitted to having highly explicit and

detailed conversations with Appellant about their plans to have group sex on

the night in question. However, they both believed the conversations to be in

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6 The 200 pages of redacted WhatsApp messages between Appellant, E.A.,

and M.R. were made part of the record as “Defendant’s Exhibit 4” on May 17,

2023. The exhibit was used as a reference by defense counsel during the

questioning of witnesses, and some of it was read into evidence, but the

exhibit was not published for the jury’s viewing.

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jest, and not intended to be taken seriously, much less carried out. Defense

counsel argued to the jury that the messages had in fact reflected M.R. and

E.A.’s willingness to engage in sexual activity with Appellant.

As outlined above, Appellant was found guilty of several sex-related

offenses relating to M.R.; he was acquitted of the charges relating to E.A.

Appellant timely filed post-sentence motions, which were denied. He

appealed, and in his brief, four issues have been raised for our consideration:

1. Did not the trial court err in excluding the WhatsApp group

chat among the [victim], M.R., her best friend and Commonwealth

witness, E.A., and [Appellant], wherein M.R. expressed her intent

to engage in sex with him, engage in BDSM physical contact, and

become intoxicated, where such evidence was relevant and

admissible to demonstrate [Appellant’s] reasonable belief that the

sexual conduct with M.R. was consensual?

2. Did not the trial court err in precluding the testimony of Mr.

Bustillo, a friend of Commonwealth witness E.A. and

colleague/acquaintance of M.R., that two weeks prior to August

27, 2019, he observed M.R. and E.A. kissing passionately, where

that testimony was relevant to the credibility of those two

witnesses?

3. Did not the trial court err in sustaining an objection to defense

counsel’s argument in closing showing both the motive and illogic

of Commonwealth witness E.A.’s testimony about M.R.’s level of

intoxication and consent, and by instructing the jury to disregard

that argument?

4. Was not [Appellant’s] waiver of his right to remain silent and

right to counsel under the Pennsylvania and United States

Constitutions invalid as to the portion of his recorded statement

to police regarding events involving M.R. in August 2019, where

he was not on notice of these events as topics of the interrogation

when he waived his Miranda rights?

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Appellant’s Brief, at 8 (numbering added, issues reordered, suggested

answers omitted).

Appellant’s first claim is that the trial court erred in excluding numerous

group text messages exchanged on WhatsApp between Appellant, E.A., and

M.R. He argues in his brief that the messages were admissible as non-hearsay

evidence, which established Appellant’s reasonable belief that M.R. was

consenting to the sexual conduct discussed in the messages. See Appellant’s

Brief, at 23-27. He argues further that the trial court erroneously excluded

the messages because they were admissible as substantive evidence of M.R.’s

consent which did not implicate the prohibition on hearsay. See id., at 28-

30.

The Commonwealth responds that Appellant did not preserve the above

evidentiary issues for appellate review because the grounds for relief raised in

his brief differ from the arguments he made before the trial court. In the

alternative, the Commonwealth asserts that any error in the trial court’s

rulings could not have prejudiced Appellant because much of the messages’

content was presented at trial.7

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7 The trial court,in its 1925(a) opinion, also found the claim to be waived,

suggesting that Appellant had mischaracterized how the WhatsApp messages

were addressed in its rulings. According to the trial court, it “did not limit or

preclude the use of the messages between [Appellant], E.A., and M.R.” Trial

Court 1925(a) Opinion, 5/21/2024, at 3. The trial court had stated in its pre-

trial order that Appellant’s motion in limine was effectively granted, in that

defense counsel would be permitted to elicit the content of the text messages

from witnesses when appropriate for impeachment purposes. The trial court

(Footnote Continued Next Page)

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Having reviewed the record, as well as the parties’ briefs, we find that

Appellant has not preserved for review the specific grounds raised in his first

claim, precluding us from reaching the claim’s merits.

“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P 302(a). “[W]here an appellant raises

an objection before the trial court on specific grounds, only those grounds are

preserved for appeal.” Commonwealth v. Le, 208 A.3d 960, 977 (Pa. 2019).

Under Pa.R.E. 103, a party may claim error in a ruling to admit or

exclude evidence by filing a timely motion in limine. See Commonwealth v.

McGriff, 160 A.3d 863, 866 (Pa. Super. 2017). “Consistent with . . . Pa.R.E.

103(a), a motion in limine may preserve an objection for appeal without any

need to renew the objection at trial, but only if the trial court definitively

rules on the motion.” Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa.

Super. 2011) (emphasis added, citations omitted). A claim raised in a motion

in limine may later be waived where the movant abandons it before the court

has ruled. See Commonwealth v. Leaner, 202 A.3d 749, 765 n.3 (Pa.

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went on to examine the parties’ respective positions on the message’s during

and at trial, focusing on alleged instances in which Appellant’s use of the

messages was restricted. See Trial Court 1925(a) Opinion, 5/21/2024, at 3-

15. The trial court found that, in the few instances when the Commonwealth

had objected to the defense’s attempted impeachment of a witness with a

WhatsApp message, the objections were properly sustained. See id. The trial

court also noted that defense counsel was otherwise free to impeach witnesses

using the content of the messages, much of which was admitted into evidence

and considered by the jury. See id. Appellant does not identify any of these

discrete evidentiary rulings as erroneous or seek appellate review as to the

exclusion of any particular text messages.

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Super. 2019) (deeming defendant’s constitutional speedy trial challenges

waived because “[a]lthough [he] suggested in his pre-trial motion that there

was a violation of his constitutional rights, he abandoned the claim during the

hearing/argument before the trial court.”) (Citations omitted).

Appellant’s argument here is that the trial court erred in prohibiting

defense counsel from presenting 200 pages of WhatsApp messages as

substantive evidence of the victims’ consent, instead only allowing the

messages’ content to be read into evidence, in piece-meal fashion, as

impeachment material during the cross-examination of E.A. and M.R.

The ostensible purpose of Appellant’s motion in limine, filed on February

8, 2023, was to obtain a ruling on the admissibility of evidence “Pursuant to

Pennsylvania’s Rape Shield Statute, 18 Pa.C.S. § 3104.” That is, Appellant

indicated in the motion that he was seeking to admit “testimony” that could

potentially implicate the Rape Shield Statute, ensuring that such evidence

would not be statutorily barred:

[Appellant] seeks a pre-trial ruling from this Court on the

admissibility of testimony that implicates the protections

of Pennsylvania’s Rape Shield Law, 18 Pa.C.S. § 3104.

Specifically, [Appellant] wishes to introduce several

messages from a What’s App group chat that he, [E.A.], and

[M.R.] exchanged between August 25, 2019, two days

before the alleged sexual assault, and August 29, 2019,

two days after the alleged assault took place.2 [Appellant]

believes that this evidence is relevant to the issue of [M.R.’s]

consent and admissible as it shows the relationship between the

parties and their express agreement to consume alcohol and

engage in sexual activity on the night in question. [Appellant] also

believes that the messages he exchanged with [E.A.] and [M.R.]

in the two days following the alleged sexual assault show that no

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assault took place. For these reasons, [Appellant] respectfully

asks the Court to rule that all of the What’s App messages are

relevant and admissible.3

2 [Appellant] believes that the messages are admissible

notwithstanding the protections of 18 Pa.C.S. § 3104

because the evidence directly pertains to the events in

question, the relationship between the parties, their

respective expectations regarding whether they would

engage in sexual activity together at the hotel, and whether

[M.R.] did in fact consent to the sexual activity. Accordingly,

the messages do not relate to prior sexual behavior.

Although [Appellant] does not believe that this evidence

implicates the Rape Shield Law, he is nonetheless apprising

the Court of his intent to introduce this evidence and seeking

a pre-trial ruling on this issue in an abundance of caution

because the content of the messages does involve the

sexual behavior of the complainants. [Appellant] also wishes

to make clear that he is not seeking to introduce any of the

messages in which [M.R.] discusses engaging in sexual

intercourse with another individual, “Julian,” on the day

following the alleged sexual assault as this evidence is not

relevant to any of the issues in the instant case.

3 After consultation with the Assistant District Attorney the

defense has not attached the WhatsApp Chats as an exhibit

in this motion. Rather, the defense has quoted excerpts of

the chats to provide the court with some background as to

the relationship between the parties that are expected to

testify at trial and their communications leading up to and

after the incident in question. Nevertheless, the defense

contends to properly rule on the instant motion, the

Honorable Court should read the chats in their entirety to

properly rule on both their relevancy and admissibility at

trial.

Defendant’s Motion In Limine Seeking to Admit Evidence Pursuant to

Pennsylvania’s Rape Shield Statute, 18 Pa.C.S.A. § 3104, 2/8/2023, at 2-3.

At the hearings on Appellant’s motion, the trial court understood that

Appellant was only seeking to establish the admissibility of the subject

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WhatsApp messages through the impeachment of E.A. and M.R. See N.T.

Pre-Trial Hearing, 3/24/2023, at 23. This made the admissibility of the

messages subject to whether they turned out to be inconsistent with the

prospective testimony of those witnesses. And indeed, defense counsel took

that very position, agreeing that “there has to be an alleged inconsistency on

cross or direct before I can get to [the messages], of course.” Id. That is

exactly why, in the order on Appellant’s motion in limine, the trial court ruled

that the “What’s App messages may become relevant at trial and used

pursuant to Rule 613 of the Pennsylvania Rules of Evidence for impeachment

and/or rehabilitation of a witness by both parties.” Trial Court Order,

4/27/2023, at para. 4(A).

In Appellant’s Reply Brief, he nonetheless argues that he adequately

preserved the issue now raised on appeal – the admissibility of 200 pages of

WhatsApp messages as non-hearsay evidence of the victims’ consent – by

raising those same grounds in his motion in limine. As shown in the passages

of the motion quoted above, Appellant asserted in part that the messages

were relevant and admissible to support his defense that M.R. and E.A.

consented to having sexual contact with him on the night in question; he had

asserted in footnote 2 of the motion that he believed the messages were

admissible notwithstanding the Rape Shield Statute because the evidence did

not concern the witnesses’ prior sexual conduct, but rather related to the

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parties’ respective expectations for their night at the hotel, and whether M.R.

consented to sexual activity with Appellant.

Yet, we cannot find that Appellant made it sufficiently clear to the trial

court that he was seeking a pre-trial ruling as to whether he could admit and

publish all 200 pages of the subject WhatsApp messages as a single exhibit,

regardless of whether they were relevant for impeachment. It was ambiguous

in his written motion that Appellant sought a ruling allowing him to do so. But

more importantly, in their lengthy discussions at the two hearings on

Appellant’s motion, the parties’ clear consensus was that the redacted version

of the WhatsApp messages did not run afoul of the Rape Shield Statute, and

that the defense could admit the messages insofar as they could be used to

rebut the testimony from the Commonwealth’s witnesses. See N.T. Hearing,

8/24/2023, at 14-16; 22-23.

By agreeing that the messages’ admissibility was contingent on “alleged

inconsistency on cross or direct before I can get to them, of course,” defense

counsel communicated that he was not seeking a ruling from the trial court as

to whether the subject messages, all 200 pages, were admissible collectively

as a single published exhibit, and for the reasons now advanced on appeal.

Id., at 23.

Since Appellant led the trial court to believe that no definitive ruling on

that discrete issue was being sought, and no definitive ruling on that issue

was ever made as a result, Appellant is now foreclosed from raising the issue

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at the appellate stage. See Blumer, 20 A.3d at 1232 (explaining that a

motion in limine is alone sufficient to preserve an issue for appeal, “but only

if the trial court and definitively rules on the motion.”).

Thus, because the trial court did not, in the first instance, rule on the

evidentiary issue now raised, and the issue was in any event abandoned at

the hearings on Appellant’s motion in limine, his first claim is waived. See

id.; see also Leaner, 202 A.3d at 765 n.3 (holding that defendant raised an

issue in a motion in limine but then abandoned the issue for appellate

purposes during hearings before the trial court). 8

Appellant’s second claim is that the trial court erred in excluding the

testimony of Andres Bustillo Gallardo regarding his observation of M.R. and

E.A. kissing each other about two weeks prior to the night in question. In his

motion in limine, Appellant argued that this evidence was relevant and

admissible at trial because it could be used to undermine the credibility of

E.A., who had denied that she had ever had any such contact with M.R. prior

to their party with Appellant. The trial court ruled that Gallardo’s observations

____________________________________________

8 To the extent Appellant seeks relief from the exclusion of any individual text

messages, such claims are also waived because the issue, as framed in

Appellant’s brief, does not parse the trial court’s various rulings on their

admissibility. It is well established that if an appellant's “brief fails to provide

any discussion of a claim with citation to relevant authority or fails to develop

the issue in any other meaningful fashion capable of review, that claim

is waived. It is not the obligation of an appellate court to formulate an

appellant's arguments for him.” Commonwealth v. Armolt, 294 A.3d 364,

377 (Pa. 2023).

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were barred under the Rape Shield Statute; the trial court also found that

such evidence was irrelevant, and more prejudicial than probative as to any

trial issues. See Trial Court 1925(a) Opinion, 5/21/2024, at 40-42.

A trial court’s evidentiary rulings are subject to abuse of discretion

standard of review. See Commonwealth v. Lawrence, 313 A.3d 265, 275

(Pa. Super. 2024). This standard applies as to evidentiary rulings made during

and prior to trial. See Moffitt v. Miller, 302 A.3d 1219, 1224 n.2 (Pa. Super.

2023). “An appellate court will not find an abuse of discretion based on a

mere error of judgment, but rather . . . where the [trial] court has reached a

conclusion which overrides or misapplies the law, or where the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill-will.” Commonwealth v. Gill, 206 A.3d 459, 466 (Pa. 2019).

The Rape Shield Statute provides in pertinent part that

[e]vidence 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)[.]”

18 Pa.C.S.A. § 3104(a). The only statutory exception to this rule is that a

defendant may present “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." Id.

In addition to that statutory exception, this Court has also recognized

that the Rape Shield Statute will not bar a defendant from presenting

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"evidence that negates directly the act of intercourse with which a defendant

is charged, evidence demonstrating a witness' bias, or evidence that attacks

credibility." Commonwealth v. Largaespada, 184 A.3d 1002, 1006-1007

(Pa. Super. 2018) (citing Commonwealth v. Allburn, 721 A.2d 363, 367

(Pa. Super. 1998)). "Notably, ‘evidence tending to directly exculpate the

accused by showing that the alleged victim is biased and thus has a motive to

lie, fabricate, or seek retribution is admissible at trial.’” Largaespada, 184

A.3d at 1007 (quoting Commonwealth v. Guy, 686 A.2d 397, 400 (Pa.

Super. 1996)).

Here, the proffered testimony of Gallardo clearly qualifies as evidence

of M.R. and E.A.’s prior sexual acts, making the testimony inadmissible unless

an exception to the Rape Shield Statute applies. Appellant argued that

Gallardo’s testimony was admissible because it could be used to impeach

E.A.’s statement to police that she had never kissed or had sexual contact

with M.R. until the night of the subject incident.

We find that this claim lacks merit because, as the trial court explained,

the proposed basis for the admission of Gallardo’s observations would not

have been relevant to the issue of M.R.’s consent:

If the jury heard that EA and M.R. kissed and E.A. did not admit

that fact to the [police], EA would have been asked to explain why

she was not truthful about that fact. Presumably, she would have

testified that she was embarrassed or misunderstood the

question, or any number of reasons. Having her questioned and

cross[-]examined on this collateral issue would not have helped

the jury make the determination of whether [Appellant] was guilty

of the charges that were pending against him, particularly in light

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of the consistency in his defenses to the charges regarding each

victim.

****

Further, the proffered evidence of a sexual relationship between

EA and M.R. did not occur until two weeks before the assault of

M.R. at the hotel room, well after E.A.'s graduation from high

school. Impeaching the witness on this collateral matter would

not have shown that E.A. was biased or lacked credibility about

what transpired in the hotel room. It must also be remembered

that [Appellant] was found not guilty of all the charges lodged

against him with E.A. as the complaining witness.

Further, [Appellant] did not challenge the fact that he had sexual

relations with M.R. Instead, he claimed that the contact with her

was consensual. Whether E.A. had a sexual relationship with M.R.

would have no relevance whatsoever to whether M.R.'s contact

with [Appellant] was consensual, nor would it establish that M.R.

had a motive to lie about what occurred in the hotel room.

[Appellant] counsel thoroughly challenged M.R.'s testimony

regarding consent on cross examination. M.R. was confronted with

multiple text messages regarding the two days leading up to the

incident and the two days following the incident, which included

explicit sexual banter, comments regarding oral sex, scores on a

BDSM test, filming a porno, and having a threesome, among other

things. Defense counsel asserted that all these communications

supported the defense that M.R. consented to sexual activity with

[Appellant]. It is worth noting that the record does not contain

any reference to M.R.'s denial of a sexual relationship with E.A.

Thus, without evidence of record regarding a denial, the trial court

would not have even reached the question of the use of Mr.

Bustillo's testimony as impeachment on a collateral matter would

nevertheless not have been relevant to the determination

regarding consent by M.R. with [Appellant].

Trial Court 1925(a) Opinion, 5/21/2024, at 41-42.

Appellant’s third claim is that the trial court erroneously sustained the

Commonwealth’s objection to defense counsel’s argument in closing

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statement that if Appellant were found guilty of sexually assaulting M.R., then

E.A. would necessarily be guilty of the same offense.

“[T]he prosecution and the defense alike are afforded wide latitude and

may employ oratorical flair in arguing to the jury.” Commonwealth v. Abu-

Jamal, 720 A.2d 79, 110 (Pa. 1998). However, the “arguments of counsel

are not evidence.” Commonwealth v. Puksar, 951 A.2d 267, 263 (Pa.

2008). The arguments advanced by counsel “must be based upon matters in

evidence and/or upon any legitimate inferences that may be drawn from the

evidence.” Id. “[T]he trial court must frame the legal issues for the jury and

instruct the jury on the applicable law.” Commonwealth v. Meadows, 787

A.2d 312, 318 (Pa. 2001). The trial court may, at its discretion, limit the

scope of counsel’s arguments to the jury “to correct a possibly misleading

statement of the law.” Commonwealth v. Britton, 482 A.2d 1294, 1301

(Pa. Super. 1984).

Here, in its closing statement, defense counsel argued that, if Appellant

was guilty of sex crimes against E.A. due to her intoxication and lack of

consent, then M.R. would have to be guilty of those same offenses:

If you say that [Appellant] is guilty of sexual assaulting [M.R.],

you have to say that [E.A.] is also guilty of it. Have to. Because

she, while [M.R.] is drunk, then takes advantage of her friend

sexually, and that's just plain silly because she didn't do that. So,

she says, [Appellant] got us drunk. [Appellant] didn't get them

drunk. They're all doing shots together. [E.A.] and [M.R.]

consensually engage. [Appellant] and [M.R.] consensually

engage. Seth and [E.A.] consensually engage. And then they joke

about it afterwards. Buyer's remorse for sure. Hazy memories for

sure. But [E.A.] told Detective Maurer her eyes were wide open

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the entire time. That's how you know and that is an

uncomfortable, but undeniable truth.

N.T. Trial, 5/22/2023, at 259.

The Commonwealth objected that the argument was improper because

E.A. was not on trial, and there was no evidence that E.A. and M.R. had sexual

contact with each other at the party in the hotel room. See id., at 266. The

trial court sustained the objection in part, instructing the jury to disregard the

defense’s contention that Appellant’s guilt as to the charges involving M.R.

would have to logically coincide with E.A.’s guilt of those same crimes. The

trial court explained that E.A. was not on trial, and that her hypothetical guilt

of uncharged offenses was not a matter for the jury to consider. See id., at

268-69.

We find that the trial court did not err in giving this cautionary

instruction. The trial court correctly clarified to the jury that its role in the

case had nothing to do with determining E.A.’s guilt or innocence of any

criminal offenses. We note that the defense was still permitted to advance its

underlying point that since E.A. and M.R. had in fact consented to sexual

contact with each other, it could be inferred that they must have also

consented to intercourse with Appellant. Since the trial court merely reminded

the jury that only Appellant was on trial, no relief is due on this ground.

Appellant’s fourth and final claim is that the trial court erroneously

admitted portions of his recorded statements to police regarding his conduct

toward M.R. because he had been advised that the interrogation would only

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concern allegations in which E.A. was the alleged victim. He argues that the

trial court erred in denying his motion to suppress those statements because

they were elicited after an involuntary waiver of his Miranda rights.

On review of the denial of a motion to suppress evidence, this Court “is

limited to determining whether the suppression court's factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct.” Commonwealth v. Jones, 121 A.3d 524, 526 (Pa. Super.

2015). All evidence, and reasonable inferences drawn from the evidence,

must be construed in the light favorable to the Commonwealth, as the

prevailing party. See id. “Where the suppression court's factual findings are

supported by the record, [the appellate court is] bound by [those] findings

and may reverse only if the court's legal conclusions are erroneous.” Id.

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States

Supreme Court held that the Fifth Amendment right against self-incrimination,

and the Sixth Amendment right to counsel, require law enforcement to notify

the accused of those constitutional rights prior to questioning in a custodial

setting. A waiver of Miranda rights by the accused must be knowing,

intelligent, and voluntary in order to be valid. See Commonwealth v.

Smith, 210 A.3d 1050, 1058 (Pa. Super. 2019). Further, and of relevance in

the present matter, “[a] valid waiver of Miranda rights requires that the

suspect have an awareness of the general nature of the transaction giving rise

to the investigation.” Commonwealth v. Dixon, 379 A.2d 553, 556 (Pa.

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1977); see also Commonwealth v. Johnson, 160 A.3d 127, 138 (Pa. 2017)

(same).

When a defendant challenges the validity of a Miranda waiver on that

latter ground, the Commonwealth must show, by a preponderance of the

evidence, that the defendant was aware of the subject of the police

questioning. See Dixon, 379 A.2d at 556. The Commonwealth may carry

this burden by establishing the “circumstances attending the interrogation,

such as the prior statements of the suspect . . . or the fact that interrogation

follows hard upon the criminal episode and there is no circumstance lending

ambiguity to the direction and purpose of the questioning.” Id.

In the case at hand, we find that no relief is due on Appellant’s Miranda

claim because a constitutional violation did not occur. The Commonwealth

showed by a preponderance of the evidence that Appellant was reasonably

aware at the time of his waiver that the subject of the police questioning

concerned the events that transpired in a hotel room with E.A. and M.R. on

the evening of August 27, 2019.

It is true that the police only specifically referenced E.A. as an alleged

victim when Appellant waived his Miranda rights. However, Miranda “does

not require that in addition to the various rights enumerated a suspect must

be provided with information as to the crime under investigation.”

Commonwealth v. Travaglia, 467 A.2d 288, 293 (Pa. 1983). A Miranda

waiver may be valid where the “interrogation follows hard upon the criminal

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episode and there is no circumstance lending ambiguity to the direction and

purpose of the questioning.” Dixon, 379 A.2d at 556.

Appellant indisputably knew that M.R. was present on the night of the

alleged offenses against E.A. He also knew from his own experience, and from

his conversations with M.R., that he had gotten her heavily intoxicated at the

time they had intercourse. M.R. directly told Appellant in a text message that

she had “blacked out” after drinking the alcohol he had supplied her, and that

she had not wanted to have sex with him that night. See Defendant’s Trial

Exhibit D-4, 5/17/2023, at p. 159.

Just one day before Appellant’s interview with police, E.A. had

confronted him with that fact in a recorded telephone call. Appellant

responded by acknowledging that M.R. was “part of this,” that he did not

“know what the f**k happened there,” and that he “was intoxicated.”

Commonwealth Exhibit 33, 5/19/2023, at p.11.

So while the police only referenced allegations of offenses against E.A.

when Appellant waived his Miranda rights, the interrogation nevertheless

“followed hard upon the criminal episode” involving both E.A. and M.R., who

Appellant knew to be “part of” the incident being discussed. Thus, the record

facts support the trial court’s ruling that the Commonwealth carried its burden

of showing that Appellant had an awareness of the general nature of the

transaction giving rise to the investigation, and that his waiver of Miranda

rights was valid.

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Judgment of sentence affirmed.

Date: 6/24/2025

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