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HomeMy WebLinkAboutCP-21-CR-2227-2005 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ROBERT LEE WOODALL, II : CP-21-CR-2227-2005 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., August 7, 2007:-- 1 Defendant, Robert Lee Woodall, II, was convicted by a jury of rape, statutory 2345 May sexual assault, sexual assault, indecent assault, and corruption of a minor. On 23, 2007 , an order was entered holding that defendant is a sexually violent predator. May 29, 2007 On , on the charge of rape, defendant was sentenced to pay the costs of prosecution, submit to DNA testing, submit to Megan’s Law lifetime registration, and undergo imprisonment in a state correctional institution for a term of not less than ten 6 years or more than twenty years, with one day credit. On the charges of statutory sexual assault, sexual assault, indecent assault and corruption of minors, defendant was sentenced to pay the costs of prosecution. Defendant filed a direct appeal from the judgment of sentence to the Superior __________ 1 18 Pa.C.S. § 3121(a)(1). 2 18 Pa.C.S. § 3122.1. 3 18 Pa.C.S. § 3124.1. 4 18 Pa.C.S. § 3126(a)(1). 5 18 Pa.C.S. § 6301(a)(1). 6 The ten year minimum sentence was a mandatory minimum. 42 Pa.C.S. § 9714(a)(1) CP-21-CR-2227-2005 (second strike). -2- CP-21-CR-2227-2005 7 Court of Pennsylvania. In a concise statement of matters complained of on appeal, he raises six issues which we will review seriatim: A. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR FORCIBLE RAPE BECAUSE THERE WAS NOT ENOUGH EVIDENCE TO SHOW THAT FORCE OR THE THREAT OF FORCE WAS EMPLOYED SUCH THAT A REASONABLE PERSON UNDER THE SAME CIRCUMSTANCES COULD NOT HAVE RESISTED. The Crimes Code at 18 Pa.C.S. Section 3121(a) defines rape as engaging in sexual intercourse with another not his spouse: (1) By forcible compulsion. (2) By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. Section 3101 defines “forcible compulsion” to include “[c]ompulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied.” Section 3107 of the Crimes Code provides that the alleged victim need not Commonwealth v. Rhodes, resist the defendant. In 510 Pa. 537 (1986), the Supreme Court of Pennsylvania stated that the element of forcible compulsion of rape encompassed not only physical force or violence but also moral, psychological and intellectual force; the determination in each case is to be based upon the totality of the circumstances: Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have __________ 7 Defendant has posted $100,000 bail pending appeal. -3- CP-21-CR-2227-2005 taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether -4- CP-21-CR-2227-2005 the victim was under duress. This list of possible factors is by no means exclusive. The evidence in a light most favorable to the Commonwealth is that the fifteen- year-old female victim was “hanging out” at defendant’s home in Mount Holly Springs while avoiding a nighttime curfew. Defendant was forty-one years old. This was not the first time that the victim and other young females would find a way to hang out at defendant’s house late at night. At approximately 3:30 a.m. on August 24, 2005, the victim was on defendant’s front porch. For some reason she spit on the porch. Defendant, a much bigger man, pressure squeezed her on the top of her shoulders which hurt her. He pushed her to the side of the house and pushed her down while still putting pressure on her. He held her on some steps with both hands and then used one hand to pull down her pants and underpants. She kept saying “no,” but he had sexual intercourse with her while saying “don’t you want it, don’t you want it.” She kept telling him to stop which he finally did without ejaculating. She was examined at a hospital at about 10:00 p.m., on August 24, 2005. There was a recent tear into her posterior fourchette of the type often found when sexual intercourse has been achieved through force. There was bleeding at the hymen which is a tissue that lies right over 8 the opening of the vagina. It was a recent laceration (tear). The victim was a virgin before defendant assaulted her. Given the disparity in the age between the victim and defendant, the atmosphere and physical setting in which the incident occurred at defendant’s home in the middle of -5- CP-21-CR-2227-2005 the night, the position of domination that the much bigger defendant had over the victim, and the circumstances of how quickly and unexpectedly defendant reacted to her spitting on his porch by using his strength to put pressure on her which hurt her and then push her to the side of his house, push her down, remove her pants and sexually assault her all during which she kept telling him to stop and that she did not want it, constituted sufficient evidence to prove that the sexual intercourse was by forcible compulsion and/or threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. B. THE PROSECUTOR ACTED IMPROPERLY BY ELICITING FROM THE PROSECUTRIX’S FRIEND THE TESTIMONY THAT THE PROSECUTRIX TOLD HER THAT THE DEFENDANT HAD RAPED HER AFTER THE COURT HAD SUSTAINED THE OBJECTION, AND THIS TESTIMONY AS WELL AS SIMILAR TESTIMONY FROM ANOTHER FRIEND EXCEEDED THE SCOPE OF THE “PROMPT COMPLAINT” EXCEPTION BECAUSE THE DEFENDANT WAS IDENTIFIED AS THE PERPETRATOR AND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT. Bobby Jo Borrero was nineteen on August 24, 2005. She was a good friend of the victim. She drove the victim to the home of defendant and dropped her off at about thth 2:40 a.m. on August 24. At about 6:00 p.m. on August 24 the victim came to her house. The following questioning took place: MS. PECK: What happened when she got there? A. She came into the kitchen. I was having ice cream and cake for a little boy I was baby-sitting. I said, did you have fun last night? Because I don’t get to hang out as much anymore since I got married. She was looking down like this, and she started bawling, and I asked her what was wrong. MR. REYNOSA: Your Honor, I would object to anything she 8 The defendant did not testify at trial. -6- CP-21-CR-2227-2005 may have said. What is appropriate would be for Miss Bailey to come in and – THE COURT: Sustained at this point, at this stage. MS. PECK: Go ahead. What was her – THE COURT: No, she cannot answer that question at this stage. I sustained it. MS. PECK: I heard Your Honor. I’m sorry. I asked what was her demeanor like when she came there. BY MS. PECK: Q. What did she look like to you? A. She looked like something was bothering her. Q. So what happened after that? She told me that he had raped her. A. MR. REYNOSA: Your Honor – THE COURT: You just led her right into it. I assume she is going to testify. MS. PECK: Yes. THE COURT: I will allow it. But it is not relevant until after you have the alleged victim testify. Now, stay off of it at this stage. BY MS. PECK: Did you tell somebody as a result? Q. Yes, I told my dad. A. And did the police get called at some point? Q. Yes. My father called the police. A. (Emphasis added.) The next witness the Commonwealth called was the victim who testified that defendant raped her at approximately 3:30 a.m. on August 24, 2005. She testified that later that day she told Bobby Jo Borrero that she had been raped. August Price, who was age sixteen on August 24, 2005, was a friend of the victim. She testified right after the victim testified. Like the victim, she would sometimes hang out on defendant’s porch during the night when they would tell their parents that they were staying at somebody else’s house. She testified that she was on the porch with the victim and defendant when the victim: [s]tarted laughing and, like, flipping out and geekin and stuff, and then -7- CP-21-CR-2227-2005 she said she had cotton mouth, and she started spitting on Robert’s porch. And Robert asked her to stop spitting on the porch, and she continued to do it. And then he said, I’m going to choke you, but he said that to all of us, and he never did it. So then he said, you need to stop spitting on my porch because my kids have to play out here. And then after that she spit again, and then he pushed her against the wall. Q. Is that in the front of the house or where? A The side. Q He pushed her to the side of the house? A Um-hum. Q Against the wall? A Um-hum. Q And how did he do that? A He was, like, pushed her really hard. Q What happened after that? A And then Nicole came over and said, well, I’m going home. Q Wait a minute. Before we get there, what did you do while she was getting pushed to the side? A I set on the porch. Q Well, why didn’t you help her? A Because Robert used to grab me by my ears and stuff, and I thought they were just joking around, and she’d sit there and laugh. So I thought they were just messing around. Q Do you still think they were just messing around? A Kind of. Q What happened after he pushed her? Did you see where they went after that? A No. And the – Q Where did you go? A I went – was still sitting on the front porch. And then Nicole came over and said that she was leaving. And I said, why, you’re gonna get caught for curfew. And she said, I don’t care. And so she went around the house, and then Robert said that he was going to bed. And he went in the house and turned off the lights. And then I went over and sat on Frank and them’s porch and got a lighter and smoked a cigarette. Shortly after that, I would say about 10, 15 minutes later, Nicole [the victim] came around the house, the opposite side, and she said, well – she sat down beside me, and she said, well, you could say I’m not a virgin no more. And I was like, Nicole, what are you talking about? And she said, Robert just raped me. (Emphasis -8- CP-21-CR-2227-2005 9 added.) __________ 9 Officer Troy Wiser of the Mount Holly Springs Police Department testified that about 9:00 p.m. on August 24, 2005, the victim spoke to him and said she had been raped by defendant. After interviewing the victim he took her to a hospital. -9- CP-21-CR-2227-2005 Commonwealth v. O’Drain, In 829 A.2d 316 (Pa. Super. 2003), the Superior Court of Pennsylvania stated: In cases involving sexual assault, Rule 613 authorizes the Commonwealth to present evidence in its case-in-chief of a prompt complaint by the victim “because [the] alleged victim’s testimony is automatically vulnerable to attack by the defendant as recent fabrication in the absence of evidence of hue and cry on her part.” Pa.R.Evid. 613(c) (comment), citing Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327, 1331 (1982). “Evidence of a complaint of a sexual assault is ‘competent evidence, properly admitted when limited to establish that a complaint was made and also to identify the occurrence complained of with the offense charged.’ ” Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589, 592-593 (1987) (en banc), quoting Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327, 1331 (1982). The testimony of Bobby Jo Borrero that the victim told her at about 6:00 p.m. on August 24 that she had been raped in an incident that occurred that morning at approximately 3:30 a.m., was competent evidence properly admitted and limited to establish that a prompt complaint was made and to identify the occurrence complained of with the offense charged. Although the evidence should not have come in before the Commonwealth v. Bryson, victim testified, see 860 A.2d 1101 (Pa. Super. 2004), when the victim did testify any error arising from the out-of-order testimony as to prompt Id. complaint was harmless. There was no objection to the testimony of August Price that the victim told her approximately fifteen minutes after the incident that she had been raped. Defendant argues that his counsel was ineffective in not objecting to this Commonwealth v. Thornton, testimony. In 822 A.2d 31 (Pa. Super. 2003), the Commonwealth v. Grant, Superior Court of Pennsylvania, citing 813 A.2d 726 -10- CP-21-CR-2227-2005 (Pa. 2002), stated: Grant held, “that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Grant 813 A.2d at 738. The rationale behind the Grant rule rested on three grounds. “First, ineffectiveness claims, by their very nature, often involve claims that are not apparent on the record.” Id. at 737. “Second, even presuming the merit of the claim is apparent on the existing record, oftentimes, demonstrating trial counsel’s ineffectiveness will involve facts that are not available on the record.” Id. “Third, as multiple courts have recognized, the trial court is in the best position to review claims related to trial counsel’s error in the first instance as that is the court that observed first hand counsel’s allegedly deficient performance.” Id. It is for these reasons, the Grant court concludes, that a majority of federal and state jurisdictions have generally chosen not to address ineffectiveness of trial counsel claims on direct appeal. We find, however, that Grant does not bar the adjudication of all ineffective assistance of trial counsel claims on direct appeal. Cf. Rosendary, 818 A.2d at 530 n. 2 (noting that the “new [Grant] rule leaves open the issue regarding the propriety of raising a claim on direct appeal of trial counsel’s ineffectiveness which is apparent of record.”) In short, we do not believe our supreme court intended to establish an absolute 10 rule. From the record we can determine that counsel was not ineffective in not objecting to the testimony of August Price that the victim told her approximately fifteen minutes after the incident that she had been raped because that evidence was clearly competent evidence properly admitted and limited to establish that a prompt complaint was made and to identify the occurrence complained of with the offense charged. __________ 10 Commonwealth v. Gonzalez See also, , 840 A.2d 326 (Pa. Super. 2003). -11- CP-21-CR-2227-2005 C. THE TRIAL COURT COMMITTED PLAIN ERROR AND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE INADEQUATE AND PREJUDICIAL “PROMPT COMPLAINT” INSTRUCTION GIVEN TO THE DEFENDANT’S JURY. This court charged the jury that: Prompt reporting to public authority is not required in this prosecution. Although whether a prompt complaint was made to public authority is a matter for you to consider in judging the credibility of the alleged victim. Commonwealth v. Thomas, In 904 A.2d 964 (Pa. Super. 2006), the victim, age 17, was raped a little after 10:35 p.m. on June 26, 2002. She immediately went to her home and arrived at 11:10 p.m. Her mother was sleeping. She proceeded to the basement and made a telephone call to her cousin during which she told her what happened. The next morning she went to her cousin’s house and the girls told the victim’s aunt about the attack. The aunt called the police and the victim’s mother to report the rape. The victim, the aunt and the mother then went to a police station where the victim told the police what happened. The trial court refused to charge the jury with a prompt complaint instruction. On appeal, the Superior Court of Pennsylvania stated: prompt complaint instruction The is based upon a belief that a victim of a violent assault would reveal the assault occurred at the first available opportunity. Commonwealth v. Snoke, 525 Pa. 295, 300, 580 instruction A.2d 295 297 (1990); the purpose of the is to allow a jury to call into question a complainant’s credibility when he or she did not complain at the first available opportunity. Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa.Super. 1998). In affirming the judgment of sentence, the Superior Court of Pennsylvania concluded: Appellant theorizes that P.H. failed to promptly report the rape -12- CP-21-CR-2227-2005 because she did not tell the first person whom she saw, her sleeping mother; this argument, is a misapplication of the law in that prompt reporting does not require a revelation to the first person one sees after his or her attack; within moments of walking in her home, Appellant called her cousin and met with Detective Graff within twenty four hours of the attack. This behavior satisfies the promptness requirement and thus renders a jury instruction regarding it unnecessary. In the present case,the victim told August Price that she had been raped approximately fifteen minutes after the incident. She told Bobby Jo Borrero that she had been raped approximately fourteen and a half hours after the incident. She told Officer Troy Wiser of the Mount Holly Springs Police that she had been raped approximately seventeen and a half hours after the incident. These were prompt complaints so it was not necessary to charge on prompt complaint. Commonwealth v. Thomas, supra. Thus, even if the charge was not complete there was no prejudicial error. Therefore, on the record we can determine that counsel was not ineffective for not objecting to the charge. Commonwealth v. Jones Defendant cites , 672 A.2d 1353 (Pa. Super. 1996), in which the facts were that on April 5, 1994, between 12:30 a.m. and 1:00 a.m., S.B. was asleep in her room at the Homeless Shelter of Gettysburg, Pennsylvania when the defendant entered and asked if she was going to have sex with him. S.B. refused and the defendant proceeded to hit her in the face with a pillow and rape her. S.B. did not cry out for help during the incident. There were around 15 people staying at the shelter at the time of the incident, plus two staff persons. On April 6, 1994, the defendant entered S.B.’s room and took her medical card, Social Security card, and identification -13- CP-21-CR-2227-2005 card and said he would return them to her if she gave him money from her next paycheck. After he left her room, S.B. reported the theft and the rape, which occurred nearly twenty-four hours earlier, to a friend, a staff person, and the police. She had not told anyone prior to this about the rape. The Superior Court stated that the trial court gave the following instruction regarding an alleged victim’s failure to complain promptly: I want to caution you that in considering especially count one and count two and also the one that I’m going to go over with you next, count three, there is no requirement for a victim of a sexual assault whether that be rape, and I’m going to describe indecent assault to you in a moment, to make a prompt complaint. There’s no time limit. Lack of prompt complaint is something that you can consider but by itself it doesn’t mean that the event didn’t occur. There’s argument her [sic] that there is some passage of time, opportunities to make a complaint and there wasn’t. That’s something you can consider and in doing that, consider again the setting, the circumstances, the individuals, the reasons that might have been given for that and determine whether that means anything to you or not. In reversing a judgment of sentence, the Superior Court concluded: Nowhere in its instruction did the lower court inform the jury that S.B.’s delay in making a complaint should be considered in deciding whether the act occurred with or without her consent. In fact, the instruction could have been reasonably interpreted by the jury as bolstering the victim’s credibility since it provided: “Lack of prompt complaint is something that you can consider but by itself it the law doesn’t mean that the event didn’t occur.” To the contrary, is that lack of a prompt complaint should cause the jury to look more critically upon the credibility of the victim. The question of whether S.B. consented to engaging in intercourse with appellant was the ultimate issue in the case, and, thus, we are convinced that it was essential to the fair the jury to have been informed that if administration of justice for a complaint is delayed substantially without any reasonable explanation, a negative inference can be drawn regarding the -14- CP-21-CR-2227-2005 credibility of the victim and against whether she consented to the sexual contact . As our supreme court has previously stated, “[t]he lack of a prompt complaint by a victim of crime, although not dispositive of the merits of the case, may justifiably produce a doubt as to whether the offense indeed occurred, or whether it was a recent fabrication by the complaining witness.” Presently, appellant did not complain of the incident until nearly twenty-four hours after the incident and then did so only after appellant had taken several important personal documents from her and had threatened not to return them unless she gave him money from her paycheck. Thus, had the jury been properly instructed, it might have found the victim’s allegation of lack of consent to have been a “recent fabrication” designed to punish appellant for his actions the following day. Such a conclusion is not inconceivable given the minimal (but, nevertheless, sufficient) evidence of physical force or threat of force which S.B. alleged and the ease with which S.B. could have summoned others to her rescue and received assistance in the Homeless Shelter. Accordingly, we conclude the erroneous instruction was not harmless since it failed to focus the jury’s attention upon the issue of consent and the impact of S.B.’s failure to complain promptly. (Citations omitted.) (Footnote omitted.) (Emphasis added.) sub judice, In the case the court charged the jury regarding prompt complaint Jones, which, unlike the charge that was determined inadequate in was favorable to the defendant in that the jury was told to consider under the circumstances whether the victim’s complaint was prompt and to consider that issue in judging the credibility of the alleged victim. Thus there was no prejudicial error. Since the victim’s complaints were not delayed substantially, there was no evidence to support an inclusion into the charge that if the victim’s complaints were delayed substantially without any reasonable explanation a negative inference could be drawn regarding the credibility of the victim as to whether the sexual assault occurred. Therefore, on this record we can determine that counsel was not ineffective for not objecting to the charge. -15- CP-21-CR-2227-2005 D. THE RAPE NURSE IMPROPERLY AND PREJUDICIALLY GAVE THE EXPERT OPINION THAT THE PROSECUTRIX WAS FORCIBLY RAPED AND HAD BEEN A VIRGIN WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY, WHICH VIOLATES THE STATE NURSING LAW AND IS BEYOND THE SCOPE OF -16- CP-21-CR-2227-2005 ANY NURSE’S EXPERTISE, AND THE PROSECUTOR WRONGLY INTRODUCED THE OPINION, THE COURT SHOULD HAVE PRECLUDED IT AND DEFENSE COUNSEL SHOULD HAVE OBJECTED MORE COMPLETELY. The Commonwealth introduced the testimony of Kathleen K. Farrell, a registered nurse employed in the emergency department of the Carlisle Regional Medical Center. Part of her duties since May, 1995, have been as a sexual assault nurse examiner. Her experience includes examining between 40 and 50 patients involving alleged sexual assaults. Farrell testified that she met the victim at the hospital at about 10:00 p.m. on August 24, 2005. She testified as to the nursing care she provided to the victim and to her collection of evidence using a rape kit. Her testimony on direct examination included the following: I want to ask you a couple final questions about what Q your opinion is to a reasonable degree of medical certainty , ok? A O’kay. To a reasonable degree of medical certainty, is the tear Q of the hymen that you marked is that consistent with the victim being a virgin? A Yes. MR. REYNOSA: I would ask that that be left to the jury. The jury is the ultimate finder of fact on that issue. She testified as to what she saw. MS. PECK: Your Honor, she’s an expert and she may give her opinion as to it. THE COURT: What was the question? Read it back to me, please. Is the tear in the hymen consistent or inconsistent MS. PECK: with the victim being a virgin? THE COURT: I will let her answer that. It would show that she is not a virgin at this THE WITNESS: time, that she was prior. BY MS. PECK: To a reasonable degree of medical certainty, is the Q laceration to the posterior fourchette area of the vagina more -17- CP-21-CR-2227-2005 consistent with consensual sex or nonconsensual sex? A Nonconsensual. To a reasonable degree of medical certainty, is the hair Q to the hymen – I’m sorry – is the tear to the hymen and the tear to the vagina consistent with what the victim reported to you? A Yes, it is. To a reasonable degree of medical Q My last question. certainty, were the observations that you made of Nicole Bailey consistent with an assault? A Yes, it is. MS. PECK: Thank you. I have nothing further, Your Honor. THE COURT: Cross-examine. MR. REYNOSA: Your Honor, may we approach briefly THE COURT: Yes. (Whereupon, the following discussion was held at sidebar:) MR. REYNOSA: What I wanted to bring -- one of the questions Christylee asked the doctor was whether or not -- THE COURT: The nurse. . . . (Emphasis added.) It appears that defense counsel lost track of the fact that Kathleen Farrell was a nurse and the prosecutor was careless for seeking opinions from a nurse to within a Flanagan v. Labe, reasonable degree of medical certainty. In 690 A.2d 183 (Pa. 1997), an offer was made for a nurse to testify that substandard nursing care provided to the plaintiff was a substantial contributing factor to the plaintiff’s progressively worsening subcutaneous emphysema. The trial court concluded that the nurse’s proposed testimony called for a medical diagnosis which a nurse is precluded from making under the Professional Nursing Law, 63 P.S. § 212(1). Summary judgment was granted in favor of the defendant which was affirmed by the Superior Court of Pennsylvania. Upon review the Supreme Court of Pennsylvania noted that Section 212(1) of the Professional Nursing Law clearly states that the proper scope of nursing practice does not include acts of medical diagnosis. In affirming the order of the -18- CP-21-CR-2227-2005 Superior Court, the Court concluded that the nurse’s proffered testimony regarding the specific identity and cause of Flanagan’s condition would have improperly constituted a medical diagnosis. In the present case, the prosecutor asked Nurse Farrell for opinions within a reasonable degree of medical certainty. Farrell expressed such opinions to the jury. She was not qualified as a nurse to offer any opinions within a degree of medical certainty. If there had been an objection to her expressing any opinions within a reasonable degree of medical certainty the objection would have been sustained. Whether defense counsel can be determined to be ineffective on this record, and if so, whether the testimony of Nurse Farrell to opinions within a reasonable degree of medical certainty warrants the grant of a new trial on this direct appeal from the judgments of sentence must be decided by the Superior Court as the issue was not 11 raised in this court. E. THE PROSECUTOR WRONGLY INTRODUCED TESTIMONIAL AND PHYSICAL EVIDENCE FROM THE PROSECUTRIX AND OTHERS, INCLUDING HEARSAY, THAT SHE HAD BEEN A VIRGIN PRIOR TO THE ALLEGED RAPE, WHICH EVIDENCE WAS IRRELEVANT, INADMISSIBLE, PREJUDICIAL AND INTENDED TO INFLAME THE PASSIONS OF THE JURY; THE COURT SHOULD HAVE BARRED SUCH EVIDENCE AND DEFENSE COUNSEL FAILED TO OBJECT. The victim testified without objection that she was a virgin immediately before __________ 11 We do not express any opinion as to whether the questions answered by Nurse Farrell within a reasonable degree of medical certainty could have been answered by her to within a reasonable degree of nursing certainty. We note that a medical diagnosis is commonly understood to be an identification of a disease based on its Flanagan v. Labe, supra.Commonwealth v. signs and symptoms. See generally Gallagher, 353 Pa. Super. 426 (1986). -19- CP-21-CR-2227-2005 defendant sexually assaulted her. Accordingly, this is another situation where the issue -20- CP-21-CR-2227-2005 of ineffective assistance of counsel is being raised for the first time on appeal. Pennsylvania Rule of Evidence 401 defines “Relevant evidence” to mean “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A fact of significant consequence in the present case was whether there was sexual intercourse that the victim claimed defendant had with her. The victim’s testimony that she was a virgin was relevant because it supported the objective sign that there was a recent laceration (tear) that was bleeding at the hymen. There is no logical basis for saying that the evidence of the victim’s virginity inflamed the passion of the jury. Notwithstanding, on the facts of this case, the relevance of such testimony outweighed any perceived prejudice. Therefore, on this record we can determine that counsel was not ineffective for not objecting to this testimony. F. THE COURT ABUSED ITS DISCRETION IN EXCLUDING FROM EVIDENCE THE FACT THAT THE PROSECUTRIX WAS TAKING BIRTH CONTROL PILLS AT THE TIME OF THE INCIDENT IN QUESTION, WHICH TESTIMONY WAS RELEVANT TO REBUT THE EVIDENCE THAT SHE HAD BEEN A VIRGIN AND ITS EXCLUSION PREJUDICED THE DEFENDANT. When the prosecutor was finished with the direct examination of Nurse Kathleen Farrell, there was a sidebar in which defense counsel said that he wanted to ask: . . . whether or not the nurse recorded whether or not the victim took any medication. There was a report in there that she was taking birth control pills. She had started taking birth control pills back on her dictated statement that she last had a menstrual. THE COURT: Let’s assume that there is a report. What do you want to ask and how is it relevant? MR. REYNOSA: Whether or not she was taking birth control pills. -21- CP-21-CR-2227-2005 THE COURT: That’s the only reason it is relevant, right? MR. REYNOSA: Yes. THE COURT: It may be relevant, but the prejudicial aspect outweighs any relevancy there may be. I am not going to allow you to ask that. The evidence that the victim was a virgin was admitted for the limited purpose of supporting the objective testimony that a day after the incident there was a recent laceration (tear) that was bleeding at the hymen which supported the position of the Commonwealth that the sexual intercourse had taken place. Defendant argues in his brief that: the defense should have been permitted to rebut this evidence with the fact that [the victim] had been taking birth control pills at the time. The clear inference is that a 15-year-old girl on birth control pills is still not a virgin, and this directly undermines her credibility by the complaining witness. There is no clear inference that a fifteen-year-old girl on birth control pills is not a virgin. On the facts of this case, any relevancy there may have been that the victim was on birth control pills was outweighed by the prejudice such testimony would have injected into the case. G. THE COMMONWEALTH FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT IS A SEXUALLY VIOLENT PREDATOR BECAUSE ITS EXPERT’S TESTIMONY DID NOT SUPPORT THE FINDINGS THAT HE HAD A MENTAL ABNORMALITY OR PERSONALITY DISORDER THAT MADE HIM MORE LIKELY TO ENGAGE IN PREDATORY SEXUALLY VIOLENT OFFENSES. On May 23, 2007, an order was entered supported by a written opinion finding that defendant is a sexually violent predator. That opinion is incorporated herein. -22- CP-21-CR-2227-2005 (Date) Edgar B. Bayley, J. Christylee Peck, Esquire For the Commonwealth William C. Costopoulos, Esquire For Defendant :sal -23-