from the Order Entered August 16, 2018 In the Court of Common
Pleas of Delaware County Criminal Division at No(s):
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS [*] , P.J.E.
Commonwealth of Pennsylvania appeals from the Order entered
in the Court of Common Pleas of Delaware County on August 16,
2018, granting the pre-trial Motion to Admit Evidence of
Sexual Conduct Pursuant to 18 Pa.C.S.A. § 3104 (Rape
Shield Law) filed by Appellee John E. Jerdon, Jr. Following
our review, we reverse and remand.
trial court set forth the facts and brief procedural history
herein as follows:
[Appellee] has been charged with Indecent Assault1
and Corruption of Minors.2 The charges stem from
an allegation that [Appellee] engaged in sexual touching of
the victim from 1997 through 1999, when the victim was twelve
to fourteen years old and [Appellee] was thirty-three to
thirty-five years old. The matter was initially reported to
police on October 30, 1999 after [Appellee's] stepson,
Michael Kane, allegedly witnessed [Appellee] engaging in
sexual touching of the victim in [Appellee's] bedroom.
(Affidavit of Probable Cause, 12/15/16, pp. 1-2) A domestic
altercation between [Appellee] and Mr. Kane ensued and the
police were called. When interviewed, the alleged victim
denied that any sexual touching occurred between her and
[Appellee]. (Upland Borough Police 'Incident Report
19991030M1, 10/29/99) The matter remained open "pending
further investigation." (Affidavit of Probable Cause,
12/15/16, p.1) On August 22, 2016, the alleged victim
contacted police once again to report the incidents of the
sexual touching from 1997 through 1999. Charges for the
instant action were filed against [Appellee] in response to
said report and investigation.
On May 11, 2018, [Appellee] filed a Motion to Admit Evidence
of Sexual Conduct Pursuant to 18 Pa.C.S. §3104.
[Appellant's] basis for said motion was that two of the
Commonwealth witnesses, the complainant and [Appellee's]
stepson, Michael Kane, had a prior romantic and sexual
relationship with each other. Since the two were, and still
are, expected to corroborate each other's testimony, and
the case is expected to be based on a "he said, she
said" type of testimony, evidence of the relationship is
relevant to show bias and to attack credibility. The court
held an in-camera rape shield hearing on [Appellee's]
motion on May 14, 2018 and May 16, 2018. [Appellee] submitted
a memorandum in support of his motion and then filed a second
memorandum in support of his motion on May 17, 2018. On July
10, 2018, [Appellee] filed a brief in support of his Motion
and the Commonwealth submitted a response to the
[Appellee's] brief. On August 16, 2018, this court
entered an order granting [Appellee's] motion. The
Commonwealth filed a Motion for Reconsideration on August 21,
2018, which was denied by order filed August 23, 2018.
On August 28, 2018, the Commonwealth filed [its] Notice of
Appeal of the court's August 16, 2018 order pursuant to
Pa.R.A.P. 313 (Collateral Orders). On September 4, 2018, this
court issued an order requiring Appellant to file a Concise
Statement of Matters Complained of on Appeal. Appellant filed
said Statement on September 19, 2018[.]
118 Pa.C.S. 3126.
218 Pa.C.S. 6301.
Trial Court Opinion, filed 10/26/18.
Concise Statement of Matters Complained of on Appeal, the
Commonwealth presented three allegations of trial court
error. In its brief, the Commonwealth presents the following
question for this Court's review:
Did the trial court commit reversible error in granting
[Appellee's] motion to pierce the Rape Shield Statute (18
Pa.C.S. § 3104) by allowing admission of the
complainant's alleged, consensual sexual activity with a
third party when the alleged other sexual conduct did not
show the complainant's bias, motivation to fabricate,
lie, or seek retribution or lack of credibility with respect
to the allegations of indecent contact between her and
[Appellee] nearly 20 years ago when she was under 16 years of
Commonwealth's Brief at 5.
we may address the merits of the Commonwealth's issue, we
must determine whether we have jurisdiction to entertain this
appeal. B.L. v. T.B., 152 A.3d 1014, 1016
(Pa.Super. 2016) (a court may raise question of subject
matter jurisdiction sua sponte). As stated
previously, this appeal lies from the August 16, 2018,
pretrial order granting Appellee's motion in
limine to admit evidence of complainant's other
sexual conduct with a third party. We recently explained in
Commonwealth v. Parker, 173 A.3d 294 (Pa.Super.
Appellate review of any court order is a jurisdictional
question defined by rule or statute. This principle applies
to appellate review of a pretrial order. A court may consider
the issue of jurisdiction sua sponte. In evaluating
our jurisdiction to allow [a party's] appeal, we look to
other criminal cases involving appeals of pretrial orders
.... In this Commonwealth, an appeal may only be taken from:
1) a final order or one certified by the trial court as
final; 2) an interlocutory order as of right; 3) an
interlocutory order by permission; or 4) a collateral order.
Id. at 296 (quotation marks and citations omitted).
order is defined as any order that: "(1) disposes of all
claims and of all parties; or (3) is entered as a final order
pursuant to [Pennsylvania Rule of Appellate Procedure
341(c)]." Pa.R.A.P. 341(b). Instantly, the parties agree
that the appeal does not lie from a final order, and the
Commonwealth has not included a certification under Rule 311
in its notice of appeal. Instead, the Commonwealth argues the
order on appeal implicates the collateral order doctrine
under Pa.R.A.P. 313.
313, like Rule 311(d), provides an exception to the general
rule that an appeal may be taken only from final orders. Rule
(a) General rule. An appeal may be taken as
of right from a collateral order of an administrative agency
or lower court.
(b) Definition. A collateral order is an
order separable from and collateral to the main cause of
action where the right involved is too important to be denied
review and the question presented is such that if review is
postponed until final ...