Back-and-forth under the Rape Shield Law, and double-jeopardy problems where there’s two sentences for one substance

Comm. v. Jerdon, 2019 PA Super 202 (July 1, 2019)

Out of Delaware County.  This was a Commonwealth (interlocutory) appeal from a pretrial ruling in favor of the defendant, Jerdon.  Jerdon is on trial for sexual-assault accusations stemming from 1997 to 1999.  At that time Jerdon’s stepson had accused him of sexually touching the alleged victim in Jerdon’s bedroom.  The alleged victim during this period of time was between the ages of 12 and 14 years old.  Jerdon was between the ages of 33 and 35.

When this alleged incident was reported by Jerdon’s stepson back in the 1990s, a domestic altercation ensured between Jerdon and his stepson, and the police were called.  When interviewed, the alleged victim denied that any sexual touching occurred between her and Jerdon.  Fast-forward, however, to 2016; this time, the alleged victim contacted police and reported the incidents of sexual touching alleged to have occured in the 1990s.  This time Jerdon was charged with corruption of minors and indecent assault.

Jerdon filed a “Motion to Admit Evidence of Sexual Conduct” pursuant to Pennsylvania’s Rape Shield Law.  In that motion he sought to introduce evidence that his stepson and the alleged victim had a prior romantic and sexual relationship with one another, and that relationship would be relevant to show bias and to attack credibility.  The trial court, after holding a hearing on the matter and going through the factor analysis required, ruled to admit evidence of this prior existing relationship between the two.  On appeal, the Superior Court, by a 2-1 majority, reversed noting, “We disagree with the trial court’s determination following its application of the Black factors.”  It reasoned,

Even assuming . . . that the alleged sexual encounter between the complainant and [stepson] had occurred, this simple fact is not relevant to show the complainant, who initially denied any sexual contact between [Jerdon] and her, would have a motive to lie or was motivated by bias or hostility toward [Jerdon] when reporting to police in 2016 allegations that [Jerdon] had sexually assaulted her.  Simply put, evidence of a sexual encounter between the complainant and [stepson] is just that, evidence of a sexual relationship, and is insufficient along to infer a motive on her part to contrive these present allegations of sexual assault.  Accordingly, we find the proposed evidence is irrelevant to show the complainant’s bias or motive, or to attach her credibility . . . .

Moreover, the panel majority reversed on grounds that the prejudicial impact of Jerdon’s proposed evidence would far outweigh any probative value; and it further noted that there were alternative means of proving bias or motive in order to challenge credibility.  Thus, the majority concluded that the trial court abused its discretion—a rare finding by an appellate court.

Personal note: The dissent by Judge Lazarus is thoughtful and worth a read.  She notes at the outset of her dissent what I thought as I was reading the majority opinion: “I find no clear abuse of discretion.”  The trial court’s thoughtful analysis of why it decided to admit Jerdon’s proposed evidence didn’t have the feel of a trial court “overriding” or “misapplying” the law—a difficult thing to do particularly under a factor-balancing analysis.  Generally, the appellate court’s are loathe to second guess trial courts under similar circumstances, but here the panel majority did just that.

Comm. v. Ramsey, 2019 PA Super 205 (July 2, 2019)

Out of Allegheny County. The Superior Court held, and the Commonwealth conceded, that “the trial court violated [Ramsey’s] protection against double jeopardy by imposing separate sentences for convictions that stemmed from his single sale of a compound substance containing inseparable controlled substances”—heroin and fentanyl.  In plain English: a defendant can’t be sentenced twice for convictions stemming from a single sale of a compound substance.

Personal note: I’m litigating a similar issue where the Commonwealth has brought two possession and two delivery (or PWID) charges stemming from one substance, which the Commonwealth alleges tested positive for both heroin and fentanyl.  I’ve objected to this doubling up of charges.  

Where the Commonwealth affirmatively doubles up possessory charges and places at issue that the defendant knew he was possessing multiple illicit substances within what is outwardly a singular controlled substance—which is all the statute requires the Commonwealth prove, i.e. knowing possession of “a controlled substance”—then the Commonwealth must satisfactorily prove the Defendant’s knowledge of the multiple chemical compositions of the substance he possesses. Requiring anything less of the Commonwealth would allow it to obtain multiple possessory drug convictions against an unsuspecting possessor of drugs whose singular controlled substance happened to have multiple chemical compositions.