Com. v. Cragle, L.

J. A30034/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

LARRY J. CRAGLE, : No. 548 WDA 2017

:

Appellant :

Appeal from the Judgment of Sentence, August 27, 2015,

in the Court of Common Pleas of Lawrence County

Criminal Division at Nos. CP-37-CR-0000695-2012,

CP-37-CR-0000830-2013

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 6, 2018

Appellant, Larry J. Cragle, appeals from the August 27, 2015 judgment

of sentence entered in the Court of Common Pleas of Lawrence County

following his convictions in a jury trial of two counts of indecent assault of a

person less than 16 years of age at case No. CP-37-CR-0000695-2012, and

one count of rape by forcible compulsion, three counts of statutory sexual

assault, and three counts of sexual assault at case No. CP-37-CR-0000830-

2013.1 The trial court sentenced appellant to an aggregate term of

incarceration of 17 to 37 years. We affirm.

1 18 Pa.C.S.A. §§ 3126(a)(8), 3121(a)(1), 3122.1, and 3124.1(b),

respectively.

We also note that the trial court consolidated the cases docketed at

Nos. CP-37-CR-0000695-2012 and CP-37-CR-0000830-2030 pursuant to

Pa.R.Crim.P. 582 and Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988).

(See trial court opinion, 1/28/14 at 10-16.)

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The trial court set forth the following:

These cases arose following allegations of

sexual molestation made by [appellant’s] thirteen-

year-old niece. At both cases, the victim testified that

while she was living with [appellant], [appellant]

sexually assaulted her on multiple occasions at his

residence from August of 2011 through April of 2012.

The victim moved into [appellant’s] house in August

of 2011 to live with him, her aunt, her grandma and

five cousins. According to the victim, almost

immediately after she moved in, [appellant] started

asking her to flash her breasts to him when they were

alone in the house. When she complied, [appellant]

would begin to touch and lick her breasts. This

occurred fifteen or more times on almost a daily basis.

The victim described those incidents as routine,

further stating that [appellant] also asked her to

perform oral sex on him at least once, which request

she refused.

Additionally, the victim testified that she

engaged in sexual intercourse with [appellant] on

three separate occasions.

At the time of trial, [appellant] filed a written

Motion in Limine wherein he alleged that the victim

had made statements to both her maternal

grandmother and aunt that she would make false

allegations to the police that sexual conduct was

occurring between herself and an adult male who was

not [appellant] in this case. Further, [appellant]

alleged in his motion that the victim had made false

statements that she had been having sex with men

when she was allowed to have unsupervised visits

with her mother. The sexual conduct the victim said

she would lie or did lie about was to have occurred

during the same period of time as the sexual activity

alleged in the Information filed in these cases. Finally,

[appellant] alleged that the allegations against

[appellant] in the instant case were made as a

fabrication in exchange for assurance that sexual

assault charges would not be filed against her, as the

victim had been placed in a juvenile sex offender

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treatment program due to allegations of sexual

assault by the victim on her siblings and cousins.

[Appellant] sought to prove at trial that in exchange

for the victim’s allegations of prior sexual abuse by

[appellant], the victim would not have to suffer the

fear of having sexual assault charges filed or pursued

against her, thus showing a motive to fabricate the

current charges.

The Court issued its ruling on [appellant’s]

Motion in Limine by Order of Court dated February 10,

2015, which directed that [appellant] could examine

and/or present evidence that the alleged victim

received favorable treatment relative to juvenile

dependency or delinquency proceedings against her in

exchange for or as a motive for identifying [appellant]

as having perpetrated the alleged assault against her

but that otherwise the motion was denied.

As noted, the Court did grant [appellant’s]

Motion in Limine to the extent that the Court

permitted [appellant] to examine and/or present

evidence that the alleged victim received favorable

treatment relative to juvenile dependency or

delinquency proceedings against her in exchange for

or as a motive for identifying [appellant] as having

perpetrated the alleged acts against her even though

those proceedings arose out of allegations that the

alleged victim herself has committed acts of sexual

assault.

Trial court opinion, 5/26/17 at 3-5.

Following his convictions,

[appellant] filed a timely post-sentence motion

consisting of a Motion for Judgment of Acquittal

challenging the sufficiency of the evidence to sustain

the convictions, a Motion for [a] New Trial contending

that the verdicts were against the weight of the

evidence, and a Motion for Sentence Modification.

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On December 16, 2015, this Court issued its

Opinion and Order of Court which dismissed

[appellant’s] post-sentence motions in their entirety.

An appeal following the dismissal of

[appellant’s] post-sentence motions was not timely

filed on behalf of [appellant]. [Appellant] timely filed

a motion for Post-Conviction Collateral Relief, the

result of which was an Order of Court issued March 10,

2017 which reinstated [appellant’s] direct appeal

rights, nunc pro tunc. [Appellant] timely appealed as

authorized by the March 10, 2017 Order of Court.

Following the filing of the appeal, this Court directed

counsel for [appellant] to file a Concise Statement of

Matters Complained of on Appeal [pursuant to

Pa.R.A.P. 1925(b)], and [appellant’s] concise

statement was filed on April 25, 2017.

Id. at 2.

Appellant raises the following issues for our review:

[1.] Was the trial court’s failure to grant appellant’s

motion in limine and allow the disclosure of

relevant evidence of the accuser’s propensity to

falsify sexual abuse manifestly unreasonable?

[2.] Was the evidence insufficient as a matter of law

to support a conviction of sexual assault in the

sleep-over count for failure to establish that the

accuser did not consent to sexual intercourse

with the appellant?

[3.] Was the evidence insufficient as a matter of law

to support a conviction of rape, statutory sexual

assault, and sexual assault in the trampoline

incident because the Commonwealth failed to

establish the date of the incident with sufficient

particularity?

[4.] Did the trial court abuse its discretion in allowing

an impermissible opinion from an expert witness

as to the credibility of the accuser?

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Appellant’s brief at 6 (underscoring and unnecessary capitalization omitted).

Appellant first complains that the trial court abused its discretion when

it denied appellant’s motion in limine and (1) prohibited appellant from

introducing evidence that the victim had made statements to her maternal

grandmother and aunt that she would lie to police and deny being sexually

assaulted by another adult male; and (2) prohibited appellant from

introducing evidence that the victim made false statements that she had been

having sex with men during unsupervised visits with her mother.

We begin with our standard of review.

A trial court’s ruling on the admissibility of evidence

of the sexual history of a sexual abuse complainant

will be reversed only where there has been a clear

abuse of discretion. An abuse of discretion is not

merely an error of judgment, but if in reaching a

conclusion the law is overridden or misapplied or the

judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill will, as shown

by the evidence of record, discretion is abused.

Commonwealth v. K.S.F., 102 A.3d 480, 483 (Pa.Super. 2014) (citations

omitted).

The Rape Shield Law provides, in relevant part:

§ 3104. Evidence of victim’s sexual conduct

(a) General rule.--Evidence of specific instances of

the alleged victim’s past sexual conduct, opinion

evidence of the alleged victim’s past sexual

conduct, and reputation evidence of the alleged

victim’s past conduct shall not be admissible in

prosecutions under this chapter except evidence

of the alleged victim’s past sexual conduct with

the defendant where consent of the alleged

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victim is at issue and such evidence is otherwise

admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a).

This court has discussed the interplay between the purpose of the Rape

Shield Law and the constitutional rights of the accused, as follows:

Although the literal language of the Rape Shield Law

would appear to bar a wide range of evidence, courts

have interpreted the statute to yield to certain

constitutional considerations implicating the rights of

the accused. See, e.g., Commonwealth v. Riley,

434 Pa. Super. 414, 643 A.2d 1090, 1093 (Pa.Super.

1994) (right to cross-examine witnesses).

Evidence that tends to impeach a witness’ credibility

is not necessarily inadmissible because of the Rape

Shield Law. [Commonwealth v. Black, 487 A.2d

396, 401 (Pa.Super. 1985)]. When determining the

admissibility of evidence that the Rape Shield Law

may bar, trial courts hold an in camera hearing and

conduct a balancing test consisting of the following

factors: “(1) whether the proposed evidence is

relevant to show bias or motive or to attack

credibility; (2) whether the probative value of the

evidence outweighs its prejudicial effect; and

(3) whether there are alternative means of proving

bias or motive or to challenge credibility.” Id.

K.S.F., 102 A.3d at 483-484.

Here, appellant sought to introduce evidence that the victim made

statements to her maternal grandmother and aunt that she would lie to police

and deny being sexually assaulted by an unidentified adult male and that the

victim made false statements to an unidentified person or unidentified persons

that the victim lied about having sex with unidentified adult males.

(Appellant’s motion in limine, 2/11/15 at unnumbered pages 1-4.) Appellant

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contends that the proposed evidence was relevant to attack the victim’s

credibility. (Id.; see also appellant’s brief at 20-23.)

Although the Rape Shield Law may not be used to exclude relevant

evidence attacking a witness’s credibility to demonstrate that witness’s motive

to lie, the evidence must demonstrate that the witness had a motive to lie or

that the witness harbored bias or hostility against the defendant.

Commonwealth v. Gaddis, 639 A.2d 462, 466 (Pa.Super. 1994) (noting that

although the Black court held that the Rape Shield Law may not be used to

exclude relevant evidence attacking credibility or showing a witness’s bias,

subsequent decisions have narrowly applied the Black holding to admit such

evidence “only where the victim’s credibility was allegedly affected by ‘bias

against or hostility toward the defendant, or the victim had a motive to seek

retribution” (citation omitted)).

In applying the first prong of the Black test to this case, appellant fails

to demonstrate how evidence that the victim made statements that she would

lie about being sexually assaulted by someone other than appellant and that

she had lied about having sex with men other than appellant is relevant to

show that the victim had a motive to lie with respect to having been sexually

assaulted by appellant or that the victim was biased against and/or harbored

hostility against appellant. As stated by the trial court, “there is no connection

between the allegations of false accusations made by the victim [to appellant]

in this case.” (Trial court opinion, 5/26/17 at 9.)

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As to the second prong of the Black test, the trial court, relying on

Gaddis, found that the prejudicial impact of the proposed evidence would far

outweigh any probative value because admission of allegedly false statements

about unsubstantiated sexual conduct with unidentified men would leave the

jury to speculate as to the truth of these allegedly false allegations which

would “result in several trials within [appellant’s] trial to establish whether in

fact the alleged incidents were true or false.” (Id.) Indeed, in Gaddis, this

court recognized that the prejudicial impact of admitting evidence that would

leave the jury to speculate about the truth or falsity of facts alleged concerning

incidents where no prior truth-determining process established the veracity of

the allegations and where the alleged statements had no connection to the

defendant would far outweigh its probative value. Gaddis, 639 at 467. In an

attempt to convince this court otherwise, appellant asserts that the proposed

evidence was not meant “to drag [the victim] through the mud, but to properly

defend himself in these serious allegations.” (Appellant’s brief at 22.)

Appellant’s assertion, however, misses the mark because it fails to

demonstrate how the prejudicial impact of the proposed evidence would have

been outweighed by its probative value. Additionally, here, much like Gaddis,

admission of evidence of statements regarding unsubstantiated allegations of

the victim’s sexual conduct with unidentified men would leave the jury to

speculate as to the truth of those statements. Appellant offers no argument

to the contrary.

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With respect to the final prong of the Black test, appellant had

alternative means to prove bias or motive, as well as alternative means to

challenge the victim’s credibility. Specifically, the trial court permitted

appellant to introduce evidence that the victim fabricated the allegations of

sexual assault against appellant in exchange for favorable treatment in a

juvenile delinquency proceeding involving the victim. The record also reflects

that appellant utilized various methods at trial in an effort to impeach the

victim’s credibility, including extensive cross-examination concerning

inconsistencies and contradictions between her direct examination trial

testimony and statements that she made at appellant’s preliminary hearing,

as well as statements she made to forensic interviewer Janet Wilson. (Notes

of testimony, 2/11/15 at 40-61; 84-88; 94-99.) Consequently, we discern no

abuse of discretion.

Appellant next challenges the sufficiency of the evidence to sustain his

conviction for sexual assault because, according to appellant, the

Commonwealth failed to prove the victim’s lack of consent. A reading of

appellant’s brief on this issue reveals that he does nothing more than set forth

certain portions of the victim’s trial testimony which he contends if “taken as

true, [] clearly shows that sexual intercourse did not occur until [the victim]

consented” in an effort to convince this court that the victim consented to one

act of sexual intercourse. (Appellant’s brief at 25.) In so doing, appellant

challenges the weight of the evidence, not its sufficiency. See, e.g.,

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Commonwealth v. Gibbs, 981 A.2d 274, 281-282 (Pa.Super. 2008) (an

argument that the fact-finder should have credited one witness’s testimony

over that of another witness goes to the weight of the evidence, not the

sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-

714 (Pa.Super. 2003) (a review of the sufficiency of the evidence does not

include a credibility assessment; such a claim goes to the weight of the

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997)

(the fact-finder makes credibility determinations, and challenges to those

determinations go to the weight of the evidence, not the sufficiency of the

evidence).2

The essence of appellate review for a weight claim

appears to lie in ensuring that the trial court’s decision

has record support. Where the record adequately

supports the trial court, the trial court has acted within

the limits of its discretion.

....

A motion for a new trial based on a claim that the

verdict is against the weight of the evidence is

addressed to the discretion of the trial court. A new

trial should not be granted because of a mere conflict

in the testimony or because the judge on the same

facts would have arrived at a different conclusion.

Rather, the role of the trial judge is to determine that

notwithstanding all the facts, certain facts are so

clearly of greater weight that to ignore them or to give

them equal weight with all the facts is to deny justice.

....

2 In accordance with Pa.R.Crim.P. 607(A), appellant preserved his weight

challenge in a post-sentence motion.

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An appellate court’s standard of review when

presented with a weight of the evidence claim is

distinct from the standard of review applied by the

trial court. Appellate review of a weight claim is a

review of the exercise of discretion, not of the

underlying question of whether the verdict is against

the weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations and

quotation marks omitted). “In order for a defendant to prevail on a challenge

to the weight of the evidence, ‘the evidence must be so tenuous, vague and

uncertain that the verdict shocks the conscience of the court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013) (citation

omitted).

In his brief, appellant invites us to do nothing more than assess the

victim’s credibility and reweigh the evidence in an attempt to convince us to

reach a different result than the jury reached. We decline appellant’s

invitation. The jury, as fact-finder, had the duty to determine the credibility

of the testimony and evidence presented at trial. See id. Appellate courts

cannot and do not substitute their judgment for that of the fact-finder. See

id. Therefore, this claim lacks merit.

Appellant next claims that the evidence was insufficient to support his

convictions of rape, statutory sexual assault, and sexual assault because the

Commonwealth failed to establish the date of the incident, which the parties

refer to as the “trampoline incident,” that served as the factual basis for these

convictions with sufficient particularity. In so contending, appellant does not

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complain that the Commonwealth failed to prove any element of any of these

three crimes of which he was convicted in connection with the trampoline

incident; rather, appellant argues that the evidence was insufficient to support

these convictions because the victim’s testimony was not sufficiently specific

regarding the date as to when the trampoline incident occurred. Appellant’s

argument implicates a violation of his due process right to defend against the

charges.

At the outset, we note that the criminal information must “fix the date

when an alleged offense occurred with reasonable certainty.”

Commonwealth v. Jette, 818 A.2d 533, 535 (Pa.Super. 2003) (citation and

quotation marks omitted). “The purpose of this requirement is to provide the

defendant with sufficient notice to meet the charges and prepare a defense.”

Commonwealth v. Gibbons, 784 A.2d 776, 780 n. 2 (Pa. 2001) (Saylor, J.,

concurring) (citation omitted).

However, “[d]ue process is not reducible to a

mathematical formula,” and the Commonwealth does

not always need to prove a specific date of an alleged

crime. Commonwealth v. Devlin, 460 Pa. 508, 333

A.2d 888, 892 ([Pa.] 1975) . . . Permissible leeway

regarding the date provided varies with, inter alia,

the nature of the crime and the rights of the accused.

See Pa.R.Crim.P. 560(B)(3), stating that it shall be

sufficient for the Commonwealth to provide in the

information, if the precise date of an offense is not

known, an allegation that the offense was committed

on or about any date within the period fixed by the

statute of limitations.

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Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super. 2006) (some

citations omitted).

Here, the amended criminal information at case

no. CP-37-CR-0000830-2013 reflects that appellant committed the offenses

on September 11, 2011. (Case no. CP-37-CR-0000830-2013 docket no. 37.)

Indeed, appellant acknowledges that the criminal information reflects that the

crimes occurred on September 11, 2011. (Appellant’s brief at 30.) Appellant

then states that he “developed his defense according to this notice,” but “at

trial[, the victim’s] testimony was different [in that] [s]he stated that the

[t]rampoline [i]ncident occurred when it was winter.” (Id.) Appellant then

illogically concludes that he was denied due process because the victim’s

testimony as to when the trampoline incident occurred contradicted the date

contained in the criminal information. Appellant is mistaken. The

inconsistency regarding the victim’s recollection of when the trampoline

incident occurred and the date reflected in the criminal information implicates

nothing more than the victim’s credibility. Accordingly, it was for the jury, as

fact-finder, to resolve this contradiction. See Talbert, 129 A.3d at 546 (the

fact-finder determines the credibility of the testimony and evidence presented

at trial). Consequently, this claim lacks merit.

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Appellant finally complains that the Commonwealth’s expert,

Janice Wilson, a forensic interviewer in sexual assault cases involving children,

provided impermissible opinion testimony regarding the victim’s credibility.3

At the outset, we note that appellant violated Pa.R.A.P. 2119(c) by

failing to provide record citations to show that the record supports his

contention that Ms. Wilson impermissibly testified as to the victim’s credibility.

See Pa.R.A.P. 2119(c) (requiring a reference to the place in the record where

the matter referred to appears). Nevertheless, our review of the record

demonstrates that appellant placed no objections on the record during

Ms. Wilson’s testimony. Therefore, appellant waives this issue on appeal. See

Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super. 2013)

(reiterating the long-standing principle that a “[f]ailure to raise a

contemporaneous objection to the evidence at trial waives that claim on

appeal” (citations omitted); see also Pa.R.A.P. 302(a).

Notwithstanding appellant’s waiver of this issue on appeal, we finally

note that our review of the record reveals that to the extent that Ms. Wilson

offered opinion testimony regarding the victim’s credibility, such testimony

was elicited during appellant’s cross-examination of this witness. (See notes

of testimony, 2/12/15 at 129-130.) Therefore, even if appellant had not

3 Although a qualified expert in sexual assault cases may testify to facts and

opinions regarding specific types of victim responses and victim behaviors, an

expert’s opinion testimony regarding the credibility of any other witness,

including the victim, shall not be admissible. 42 Pa.C.S.A. § 5920(b)(3)-(4).

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waived this issue, the claim would fail because an appellant cannot elicit

inadmissible testimony on cross-examination and then complain about it on

appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/2018

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