J-S23021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KYLE VO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2327 EDA 2016

Appeal from the Judgment of Sentence Dated July 18, 2016

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-0001077-2015

BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED OCTOBER 16, 2017

Appellant Kyle Vo appeals from the judgment of sentence imposed 

after a jury convicted him of the rape of Marguerite (“Maggie”) Kane while 

she was unconscious and of aggravated indecent assault without consent, 

sexual assault, indecent assault of an unconscious person, and indecent 

assault without consent.1 We affirm.

Ms. Kane testified at trial that, on the night of January 21, 2015, into 

the morning of January 22, 2015, in a dormitory at West Chester University, 

she and her roommate, Maria Urban, had been drinking alcoholic beverages 

and went to see their friends, Tyler Claycomb and Steven Massaro, in the 

men’s dormitory room. N.T., 4/18/16, at 97. Ms. Kane and Ms. Urban did 

not stay long in Mr. Claycomb and Mr. Massaro’s room because the women 

 

1 18 Pa.C.S. §§ 3121(a)(3), 3125(a)(1), 3124.1, 3126(a)(4), and 

3126(a)(1), respectively.
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were “both very drunk and nobody else was.” Id. at 96. Ms. Kane 

described herself as “very drunk at that point” but still walking and talking. 

Id. at 97. She testified that at the time, she “wasn’t very aware of how 

alcohol is measured, and . . . how much was enough to get you drunk. And 

[she] wasn’t very familiar with alcohol itself.” Id. at 89. She added that 

she had never been as drunk before as she was on the night of January 21 

into January 22, 2015 — she was the “drunkest [she] had ever been.” Id.

at 89, 104.

Ms. Kane testified that after she and Ms. Urban returned to their 

dormitory room, they, Appellant, and Mark Dukes “who lived across the hall” 

from Ms. Kane and Ms. Urban, had a conversation about sexual experiences, 

and she told them that she was a virgin. N.T., 4/18/16, at 80, 85, 114-15. 

The others asked her “why [she] was a virgin” and her “decision-making in 

planning to be a virgin. And [she] told them that [she] wanted [her] first 

time to be very special. . . . [She] stuck to the fact that [she] wanted to stay 

a virgin.” Id. at 114-15. She continued:

My family and I are all Catholic, and I really value that. And my 

religion is very important to me. And if I didn’t save it for 

marriage, I wanted it to at least be something of value. And I 

really valued saving it for something that mattered.

Id. at 116. Ms. Kane testified that she “talked about that with them for a bit 

of time.” Id. Ms. Kane stated that she was “already pretty intoxicated at 

that point in time.” Id. at 125. 
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Ms. Kane also testified that Mr. Dukes then offered to have sex with 

her, but, “despite the fact that [she was] intoxicated, [she was] still not 

interested in having sex with Mark.” N.T., 4/18/16, at 125. He had 

returned to his dormitory room and “sent [her] text messages asking to 

have sex.” Id. at 117. She testified that she showed the texts to Ms. 

Urban, and then:

[They] talked about it and . . . laughed at him, like, he thought I 

would go and have sex with him after I just said that I didn’t 

want to. . . . I thought it was really funny that after that big spiel 

about not giving it up, that he would then ask me to go have 

sex.

Id. She testified that she turned him down in a text message reply. Id. at 

122-23. She asserted that she rejected his offer because she was not ready 

to have sex with anyone at that point.

Ms. Kane then explained that Appellant asked her if she “wanted more 

to drink,” and she “said, yes, because [she] didn’t think [she] was as drunk 

as [she] was, in retrospect. So he left to go and get alcohol from his room.” 

N.T., 4/18/16, at 126. Ms. Kane testified that before Appellant returned, her 

friend, Catherine Senior, entered Ms. Kane’s dormitory room but did not 

drink any alcohol. N.T., 4/19/16, at 59. Ms. Kane stated that Appellant

returned with “shots of vodka from a water bottle that he brought,” then “he 

offer[ed] to go get more alcohol.” N.T., 4/18/16, at 126-27. Ms. Kane 

asserted that, when Appellant returned again:

He gave me one shot and then said that we were going to go 

shot for shot, meaning that we were going to drink at the same 
J-S23021-17

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time. And he gave — he gave me at least more than three 

shots, but I’m not exactly sure how many he gave me.

Id. at 127. She testified that those shots made her “so out of it” and “very, 

very drunk.” Id. at 129. Ms. Kane testified that, “[a]fter those shots,” she 

“felt the drunkest.” N.T., 4/19/16, at 50; see also id. at 59, 63.

Ms. Kane testified that eventually Appellant sat on her bed and began 

rubbing her thigh. N.T., 4/18/16, at 135-36, 139, 141. She said that her 

thoughts were disconnected and she had difficulty processing what was 

happening. See id. at 142, 145. She remembers that Appellant moved her 

shorts and stuck his finger in her vagina, after which her hand “flopped 

backward,” she felt pain, and then “blacked out,” so that she does not 

remember clearly. Id. at 145-46. She testified that she felt limp and could 

not move. Id. at 147. When she awoke, she found Appellant on top of her, 

naked, with his penis in her vagina. Id. at 147-50. She testified that she 

went in and out of consciousness but remembers waking again to find 

Appellant behind her, where he was naked and “grinding her,” and waking 

another time to find him with his penis inside her vagina. Id. 151-53. She 

testified:

And I realized, oh, he is having sex with me. And the pain that I 

felt, I then knew what was going on. And I don’t remember 

anything after that.

Id.

When asked if she consented to sexual intercourse with Appellant, Ms. 

Kane answered negatively. N.T., 4/18/16, at 142-44, 150. She testified 
J-S23021-17

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that Appellant never said anything to her about wanting to have sex with 

her, nor even made any flirtatious comments to her; it never occurred to her 

that Appellant wanted to have sex with her. She added that she never said 

anything to him to suggest that she was interested in having sex with him, 

and it never crossed her mind that sex was a possibility with Appellant or 

anyone else that night. Id. at 143-44.

Ms. Kane asserted that as soon as Appellant left her room, she told 

Ms. Urban that she was raped — “And Maria was telling me, you know, oh, 

my first time wasn’t good either. And I’m, like, no, I was raped.” N.T., 

4/18/16, at 157-58. 

Catherine Senior testified that Ms. Kane was “pretty drunk” on the

night of the incident. N.T., 4/19/16, at 122. Ms. Senior also testified that 

the next morning Ms. Kane called her and asked her to come to her 

dormitory room; when Ms. Senior arrived, Ms. Kane told her that “she 

doesn’t want to have sex and that he did it anyway.” Id. at 132.

Steven Massaro testified that, when Ms. Kane entered his dormitory 

room, “she was intoxicated and she had [a] mason jar which had liquid in it 

that I presumed was alcohol[.]” N.T., 4/19/16, at 244. Tyler Claycomb 

corroborated this testimony, stating that Ms. Kane had “a mason jar with a 

straw in it, so it had alcohol in it,” from which she continued to drink after 

she entered his room. Id. at 261-62. He described Ms. Kane as already 

drunk when she entered his dormitory room. Id. at 261-62, 264. 
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Mr. Claycomb further testified that he went to see Ms. Kane in her dormitory 

room later that night, by which time she was “very drunk.” Id. at 266.

Chase Adams, a roommate of Mr. Massaro and Mr. Claycomb, testified 

that when he saw Ms. Kane that night —

She was very drunk. And Cate [Senior] was there trying to, like, 

help her get in her pajamas to go to bed. And she was, like, 

fighting with Cate and, like, giggling and being really loud. So 

she was very intoxicated at that point. . . . She was falling 

around, didn’t really have a sense of anything going on. Like, 

she had fallen off her chair and was, like, laying on the floor 

laughing for a good five minutes. So it was easy to tell that she 

was very intoxicated. . . . [She was s]lurring words[.]

N.T., 4/19/16, at 305-06, 320. Mr. Adams also testified that prior to the 

night in question, Ms. Kane had told him, Mr. Claycomb, and Ms. Senior that 

she had no sexual experience, that she was waiting for sex, and that she 

was not a believer in casual sex. Id. at 297.

Mark Dukes testified that he saw alcohol in Ms. Kane’s dormitory 

room. N.T., 4/20/16, at 42. He also confirmed that, during the night of the 

incident, Ms. Kane told Appellant, Ms. Urban, and him that she was a virgin, 

was waiting for the right person, and was not “rushing into it.” Id. at 45-46.

Christopher Burke, Appellant’s roommate, testified that on the 

morning of January 22, 2015, Appellant told Mr. Burke that he had sexual 

relations with an unnamed girl the night before and had taken her virginity. 

N.T., 4/20/16, at 63-64.

Maria Urban testified that Ms. Kane was “really drunk.” N.T., 4/20/16, 

at 78. She also testified that Ms. Kane told Appellant that she did not want 
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to have sex. Id. at 83-84, 91. Ms. Urban further testified that she, herself, 

eventually passed out from alcohol consumption, but that when she awoke 

during the night, she saw Appellant having sex with Ms. Kane. She 

described Ms. Kane as looking “limp” and “dead.” Id. at 92. She added that 

she did not hear Appellant nor Ms. Kane speak while he was having sex with 

her. Id. Ms. Urban stated that she did not see Ms. Kane kiss Appellant, 

stroke him, or move at all. Id. at 92-93. Ms. Urban admitted that, due to 

her inebriation, she “didn’t put two and two together that [Ms. Kane] wasn’t 

moving. [She] just didn’t add it up.” Id. at 94. She described the 

experience as “really weird and confusing.” Id. Ms. Urban continued that, 

when Ms. Kane awoke, she was “really upset, really confused” and said she 

did not know what happened. Id. at 95. Ms. Urban added that, when Ms. 

Kane realized what had happened, she immediately said that she had not 

wanted to have sex. Id. at 95-96.

Twelve hours after these events, Ms. Kane, under police supervision, 

made a recorded call to Appellant in an attempt to gain admissions from 

Appellant relating to his criminal conduct. During this recorded call, the 

following conversation occurred:

[Ms. Kane:] But, but like what, what did, what did, did you, 

did you use a condom yesterday?

[Appellant:] We, I didn’t even come, so it, I don’t even, it 

was like, it wasn’t even that long.

[Ms. Kane:] What happened, I don’t remember?
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[Appellant:] Wait, can you, like, um, I’m like actually 

making blankets for like kids at a hospital right now, I’m not 

even lying, it’s at Sykes [Student Union] right now.

[Ms. Kane:] Dude, I, I need to know what happened, I’m 

not sure[. W]hat if I’m pregnant?

[Appellant:] We had . . . You’re not pregnant, I didn’t. . . I 

swear to god, you’re not pregnant.

* * *

[Ms. Kane:] Did you use a condom?

[Appellant:] What?

[Ms. Kane:] Did you use a condom?

[Appellant:] Yes, the second time.

* * *

[Ms. Kane:] So you didn’t use a condom the first time?

[Appellant:] No.

[Ms. Kane:] What if I got a disease or something?

[Appellant:] I don’t, I just got tested . . . at Sykes, at that 

thing like two weeks ago . . . not two weeks ago, two months 

ago.

[Ms. Kane:] How dare you? You knew that I didn’t want to 

have sex, I literally said that, yesterday, in front of you.

[Appellant:] You said you did . . . I was passed out and 

then you like . . . yeah, I was actually passed out and you woke 

up, woke me up . . . 

[Ms. Kane:] Kyle, I was drunk yesterday . . . you got me 

drunk.

[Appellant:] I was . . . I was passed out.
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[Ms. Kane:] You got me drunk and had sex with me when 

you knew that I didn’t want to have sex . . . while I was sober, I 

said that to you.

* * *

[Appellant:] Like, literally, like the first time, it was for two 

minutes and I was, like I was so drunk I literally passed out on 

you, and I woke up, you woke me up . . . wait, I actually have to 

leave right now . . . like I can’t have this . . . 

* * *

[Ms. Kane:] Without a condom?

[Appellant:] What? No, the second time I actually had a 

condom.

[Ms. Kane:] OK, I don’t remember anything that happened.

[Appellant:] You weren’t even blacked out, you told me you 

weren’t even that drunk . . . 

[Ms. Kane:] But, I did say I was drunk?

[Appellant:] Wait, I, like can I actually, like because I’m in 

the middle of something right now, I’m actually making blankets 

for like kids in the hospital. . .

* * *

[Appellant:] [T]he second like I had a condom the second 

time and I still didn’t come.

* * *

[Appellant:] Can you wait, for like an hour and a half, 

because this is pretty important, and I didn’t, like you’re not 

pregnant . . . I, there’s (unintelligible)

* * *

[Ms. Kane:] [W]hat if I’m pregnant, dude? What if you 

actually did, what if you did come and you, and I’m pregnant?
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[Appellant:] You’re not pregnant, because I didn’t come . . . 

[Ms. Kane:] ‘Cause you didn’t use a condom . . . 

* * *

[Appellant:] I’ll get a Plan B pill if you’re really, like if you’re 

concerned . . . I don’t want you to freak out . . .

[Ms. Kane:] Do I need to go to the hospital?

[Appellant:] You don’t need to go to the hospital . . . oh my 

god. Like, you want me to go to Wawa, like after I’m done and 

get you Plan B?

[Ms. Kane:] What do you mean, go and get me Plan . . . 

are you saying that I have to go and take a freakin’ birth control 

pill?

[Appellant:] If you’re worried about it, I’ll go out and like 

walk to Rite-Aid and get you, like a Plan B pill if you’re worried 

about it.

* * *

[Ms. Kane:] You did it to me, though . . . while I was drunk 

. . . I wouldn’t have had to be worried about it.

* * *

[Ms. Kane:] Were you drunk?

[Appellant:] Yeah . . . (Unintelligible) . . . like are you sure 

. . . 

* * *

[Ms. Kane:] Yeah, I wanna know, like, why? When I had 

already told you that I didn’t wanna have sex, I had multiple 

times said that I’m a virgin . . . 

* * *

[Appellant:] [Y]ou told me, you’re like, I wanna have sex 

. . .
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[Ms. Kane:] When I was drunk?

[Appellant:] Like, I asked you, like, I asked you, like are 

you sure? And then you told me like the second time you 

weren’t even drunk . . . 

[Ms. Kane:] While I was . . . but I already . . . while I had 

been drinking, and after I had been drinking you asked me if I 

wanted to have sex and I said yes?

[Appellant:] Yeah, because we were making out and, then 

like, it happened.

[Ms. Kane:] It happened?

[Appellant:] Maggie, do you want me to, like honest to god, 

this is like if you’re worried, like if you’re pregnant, like . . . 

[Ms. Kane:] What if I am pregnant? What happens if I am 

pregnant?

[Appellant:] That’s what I’m saying . . . do you want me to 

go to Wawa and get you Plan B?

[Ms. Kane:] Are you saying that if I am pregnant, you, you 

would want me to just go and get a birth control pill?

[Appellant:] That’s what happens, that’s, do you know what 

Plan B is?

[Ms. Kane:] It’s a contraceptive.

[Appellant:] Exactly . . . do you want, like if you’re worried 

about it, that much . . . I didn’t come in you . . .

[Ms. Kane:] I’m saying, if I’m already preg . . .

[Appellant:] You’re not pregnant . . . you can’t get pregnant 

in . . . 

[Ms. Kane:] How do you know I’m not pregnant?
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[Appellant:] Oh, my god, you it just . . . you’re not already 

pregnant. . . . Do you want me to get you Plan B? Do you want 

me to?

[Ms. Kane:] Why do you keep saying that? That, that’s . . . 

why is that the only option if I was pregnant?

[Appellant:] What . . . I don’t know (Unintelligible)

[Ms. Kane:] What if the condom didn’t work . . . condoms 

break, you know?

[Appellant:] It didn’t break . . . well, it didn’t . . .

[Ms. Kane:] How do you know the condom didn’t break?

[Appellant:] Alright, do, like, alright . . . 

* * *

[Ms. Kane:] Well, I wanna know what happens if I am 

pregnant.

[Appellant:] I will get you Plan B and then you won’t be 

pregnant. You can’t be pregnant after you take Plan B.

[Ms. Kane:] So I should go to the hospital?

[Appellant:] You don’t get . . . I can get Plan B at CVS . . . 

people get Plan B all the time.

[Ms. Kane:] So, you’re gonna buy me Plan B?

[Appellant:] Yeah . . . I will spend forty bucks on Plan B for 

you if you’re worried . . . I don’t want you to worry about it.

* * *

[Ms. Kane:] What did you do with, what did you do with the 

condom?

[Appellant:] I threw it out.

* * *
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[Ms. Kane:] Yeah . . . ‘cause I wanna know if it worked. 

‘Cause you took, like you took my virginity, dude, and if I’m 

pregnant from that? You take my virginity . . . 

[Appellant:] Then I will get you, if you’re worried about 

being pregnant, then I will get you Plan B. I have to go right 

now, though.

Tr. of Jan. 22, 2015 Consensual Call to Appellant by Ms. Kane at 1-10, 

attached to Trial Ct. Op., 10/19/16, as Ex. 1 (some formatting altered).2 

Appellant was eventually arrested, charged, and tried before a jury 

from April 18 to 20, 2016. On the second day of Appellant’s trial, the 

Commonwealth made an oral motion in limine for “evidentiary guidance” as 

to the use of the transcript of the telephone call:

[Commonwealth]: During the course of the conversation, it’s our 

position [Appellant] made a number of out-of-court self-serving 

statements that are inadmissible unless the Commonwealth 

chooses to bring them into evidence. The Commonwealth can 

bring them in under the Hearsay Rule of a statement by party 

opponent. But the defense cannot offer an out-of-court 

statement of their own client at trial. So I wanted to — my 

understanding is that . . . before we finish this witness and 

before we start cross, that we’re in agreement that the defense 

cannot cross-examine [Ms. Kane] about that phone call, or those 

out-of-court statements by [Appellant].

N.T., 4/19/16, at 3. In response, Appellant argued that there were “grounds 

for appropriate cross-examination” of Ms. Kane, because there were:

things Miss Kane said during that conversation as showing action 

inconsistent with someone who had just been raped by 

[Appellant] less than 24 hours prior. [W]hat Miss Kane said 

during that conversation she can be subject to crossexamination on.

 

2 We understand that the ellipses within the lines of the transcript signal 

pauses, not the removal or editing out of words. 
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N.T., 4/19/16, at 5.3 The trial court reserved its ruling pending a review of 

the transcript. Id. at 8.

After reviewing the transcript, the court prohibited its use. Appellant 

then preserved his argument for the record:

I think it’s certainly not a question of admissibility, it should be 

admissible in as much as what Miss Kane said during that 

conversation, it’s a question of weight, what weight that the jury 

should give it, if any, which is subject of them as the fact finders 

to make that determination. They can certainly choose to accept 

it and find it to be exculpatory. In that respect I think that the 

evidence must be admitted for purposes of cross-examination to 

show conduct that is inconsistent, quite frankly, with the actions 

of a person who was just raped not more than 12 hours earlier 

when given the opportunity to speak directly with the defendant. 

That’s why I provided the [trial c]ourt with a copy.

Certainly the copy of the transcript of what was said in the tape 

it’s clear she never once uses the word rape during that 

conversation. On many occasions she inquires about pregnancy. 

On many other occasions she inquires about the use of a 

condom. On several occasions she inquires about birth control 

or Plan B. This is clearly a conversation where she’s showing 

that her concern is with an unwanted pregnancy or perhaps a 

sexually transmitted disease but not rape. I think that that is 

exculpable evidence that should be put before the jury and allow 

them to make the decision on what weight to give it.

N.T., 4/19/16, at 88-89. Thus, Appellant argued that Ms. Kane’s conduct 

and her statements after the rape were inconsistent with her trial testimony, 

 

3 Appellant also posited that his recorded statements could be presented to 

the jury with a cautionary instruction. N.T., 4/19/16, at 5. The 

Commonwealth countered that Appellant could not introduce his side of the 

out-of-court conversation and no cautionary instruction would “fix that.” Id.

at 8. “It[’]s his opportunity to try to get his version of events in front of the 

jury without actually having to testify.” Id. Appellant responded that the 

court could exclude his statements. Id.
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and he therefore should have been permitted to use the transcript to 

impeach her.

After Appellant’s conviction, he was sentenced on July 18, 2016, to six 

to twenty years’ confinement followed by five years’ probation. Appellant 

did not file any post-trial or post-sentence motions. On July 21, 2016, 

Appellant filed a notice of appeal and retained different counsel for the 

appeal. 

Appellant now raises one issue for our review:

Whether the trial court erred by not permitting counsel the 

opportunity to cross-examine the alleged victim Marguerite Kane 

about inconsistent statements she made during a wire intercept 

with the Appellant the afternoon after the incident where such 

exclusion of evidence violated the Appellant’s constitutional due 

process right to present a full and complete defense under the 

Fifth, Sixth and Fourteenth Amendments of the United States 

Constitution and Article I, Section 9 of the Pennsylvania 

Constitution?

Appellant’s Brief at 3.

“The admissibility of evidence is a matter for the discretion of the trial 

court and a ruling thereon will be reversed on appeal only upon a showing 

that the trial court committed an abuse of discretion.” Commonwealth v. 

Towles, 106 A.3d 591, 603 (Pa. 2014) (citations omitted).

Appellant argues that the trial court should have permitted him to use 

the transcript of the telephone call as a prior inconsistent statement during 

his cross-examination of Ms. Kane. Appellant’s Brief at 11. Appellant 

asserts:
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By not permitting cross-examination about prior inconsistent 

statements the [trial c]ourt violated the Appellant’s constitutional 

due process right to present a full and complete defense. The 

admissibility of the contents of these statements by Ms. Kane 

are critical in this appeal. The Appellant maintains that he, 

through counsel, should have been permitted to cross-examine 

Ms. Kane on the inconsistencies in the wire intercept with the 

trial testimony.

The defense theory was that the sexual contact between Ms. 

Kane and the Appellant was consensual. Defense counsel 

attempted to demonstrate that Ms. Kane, throughout the night 

in question, was able to articulate, act and carry herself in a 

manner inconsistent with being drunk, thus demonstrating that 

she was aware and consented to the sexual acts with the 

Appellant. In order to do this, defense counsel attempted to test 

the credibility of Ms. Kane’s testimony. . . . At no point during 

her testimony did Ms. Kane ever state that she was sober when 

she was with the Appellant. However during the wire intercept 

she stated: “You got me drunk and had sex with me, when you 

know that I didn’t want to have sex . . . while I was sober, I said 

that to you.” Her statement from the wire intercept indicates 

that she was sober at some point with the Appellant prior to any 

sexual contact. This is an inconsistent statement and one that 

trial counsel should have been permitted to use for crossexamination. . . . 

Also, during the wire intercept Ms. Kane was confronted with 

the fact that the Appellant had asked her if she wanted to have 

sex and she had verbally responded by saying “yes.” Again, 

counsel should have been permitted the opportunity to crossexamine Ms. Kane with respect to this specific fact. . . . 

Not allowing counsel the opportunity to cross-examine Ms. Kane 

about inconsistent statements, and ultimately test her credibility, 

violated the Appellant’s due process rights.

Id. at 11-12. Appellant argues that his right to a fair trial was denied 

because the court improperly limited his ability to cross-examine Ms. Kane 
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under Pa.R.E. 611 and 613. Id. at 16-19.4 

The trial court stated that it “thoroughly reviewed the transcript of the 

consensual call to determine if there are any inconsistent statements within 

the phone call or statements that are inconsistent with her trial testimony.” 

Trial Ct. Op. at 8. The court said that it found no inconsistencies:

It is determined that there are no inconsistent statements and 

that [Appellant]’s argument is without merit. Throughout this 

conversation, it was clear that the victim was consistent in 

stating that she did not know what happened. She confronted 

[Appellant] with the fact that he knew she was a virgin and she 

did not want to have sex. She was trying to get [Appellant] to 

tell her why he did it and questioned whether he used a condom 

and whether she could be pregnant. There were no inconsistent 

statements within the recorded call nor were her statements 

inconsistent with her trial testimony. 

Id. at 12.

We agree with the trial court that the portions of the phone call that 

Appellant identified as inconsistent statements were not, in fact, inconsistent

with Ms. Kane’s trial testimony. We do not agree that a woman’s statement 

that she is concerned about pregnancy or contracting a sexually transmitted 

 

4 Rule 611(b) states: “Cross-examination of a witness . . . should be limited 

to the subject matter of the direct examination and matters affecting 

credibility, however, the court may, in the exercise of discretion, permit 

inquiry into additional matters as if on direct examination.” Rule 613(a) 

states:

A witness may be examined concerning a prior inconsistent 

statement made by the witness to impeach the witness’s 

credibility. The statement need not be shown or its contents 

disclosed to the witness at that time, but on request, the 

statement or contents must be shown or disclosed to an adverse 

party’s attorney.
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disease is any way inconsistent with her contention that she was raped. Nor 

do we agree that Ms. Kane’s failure to say the word “rape” on the recorded 

call is inconsistent with her testimony that she was raped. In fact, when a 

friend made comments to Ms. Kane that were inconsistent with Ms. Kane’s 

contention that she was raped, Ms. Kane corrected her friend immediately. 

N.T., 4/18/16, at 158.

We also conclude that Appellant is not entitled to relief with respect to 

additional portions of the phone conversation that he identifies in his brief to 

this Court.5 Appellant focuses on two additional portions of the 

conversation, and we shall address each separately. 

The first of the additional phone call excerpts identified by Appellant 

does not relate to any statement by Ms. Kane, but rather to a statement by 

Appellant himself. Appellant argues: “Appellant had asked her if she 

wanted to have sex and she had verbally responded by saying ‘yes.’ . . . 

Counsel could have questioned her about being confronted with this fact by 

 

5 We question whether Appellant properly preserved his issue with respect to 

these additional statements, as he did not identify them in his argument to 

the trial court. “It is beyond cavil that if the ground upon which an objection 

is based is specifically stated, all other reasons for its exclusion are waived.” 

Commonwealth v. Hitcho, 123 A.3d 731, 769 (Pa. 2015) (brackets and 

citation omitted). “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). The trial 

court never had the opportunity to rule on whether the specific statements 

currently challenged on appeal were prior inconsistent statements, since 

Appellant did not ask it to consider those statements. We find it 

unnecessary to decide this case on the basis of waiver, however.
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Appellant and her response, or lack thereof.” Appellant’s Brief at 15. 

Appellant’s argument refers to the following excerpt from the recorded call:

[Appellant:] You told me, you’re like, I wanna have sex[.]

[Ms. Kane:] When I was drunk?

[Appellant:] Like, I asked you, like, I asked you, like are 

you sure? And then you told me like the second time you 

weren’t even drunk[.]

[Ms. Kane:] While I was . . . but I already . . . while I had 

been drinking, and after I had been drinking you asked me if I 

wanted to have sex and I said yes?

Tr. of Jan. 22, 2015 Consensual Call at 9. It is clear from this excerpt that it 

was Appellant who said that Ms. Kane consented to sexual intercourse, not

Ms. Kane. Because this statement was not by Ms. Kane, it cannot be

considered a prior inconsistent statement and Ms. Kane could not have been 

cross-examined about it. See Pa.R.E. 613(a) (“A witness may be examined 

concerning a prior inconsistent statement made by the witness”). 

Appellant appears to contend that Ms. Kane’s “response, or lack 

thereof” to his assertion that she consented should be treated as a 

statement by Ms. Kane. See Appellant’s Brief at 15. Appellant cites no 

authority in support of such a contention, and we know of none. In 

Commonwealth v. Ragan, 645 A.2d 811 (Pa. 1994), the Supreme Court of 

Pennsylvania stated:

[i]f a witness had been under a duty to speak on a prior 

occasion, or if it would have been natural for the witness to have 

spoken on such an occasion, but the witness remained silent, the

witness may be impeached by showing that the present 
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testimony included a fact as to which he had been silent on a 

prior occasion.

In the case at bar, defense witnesses Tyrone Simmons, Daniel 

Hunter, and Tameka Brown all testified that at the time they 

learned of appellant’s arrest they had been aware that someone 

other than appellant had murdered Darren Brown. It would only 

seem natural that one in possession of such information would 

have immediately contacted the authorities in order to exculpate 

an individual who they supposedly knew was wrongly accused. 

Thus, the prosecution was entitled to impeach their credibility by 

bringing out the fact that they failed to take any such action.

Id. at 826 (emphasis in original; citations omitted). The facts of this case 

are not comparable to those in Ragan. Appellant did not ask Ms. Kane a 

question that would naturally elicit a statement like that at issue in Ragan. 

Rather, he told Ms. Kane that she had stated that she wanted to have sex 

with him, causing Ms. Kane to repeat that assertion back to him in the form 

of a question that sought clarification of what he claims to have happened 

and what he claims was her state of inebriation. Ms. Kane never expressed 

agreement with Appellant’s assertion. Cf. Commonwealth v. Parker, 104 

A.3d 17, 29 (Pa. Super. 2014) (holding a question is a statement if it 

includes an implied assertion), appeal denied, 117 A.3d 296 (Pa. 2015). 

Appellant also challenges Ms. Kane’s statements about her alcohol 

consumption and her level of intoxication. He explains:

At trial, Ms. Kane testified that leading up to and including the 

entire sexual episode she was very drunk, in fact, as drunk as 

she has ever been in her lifetime. At no point during her trial 

testimony did Ms. Kane ever state that she was sober when she 

was with the Appellant. . . . That statement both impeaches her 

credibility as a witness, because it is inconsistent with her trial 

testimony, and the statement lends some support to the defense 

theory at trial that she, in fact, consented to the sexual acts. 
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Ms. Kane’s statement during the wire intercept was that “You got 

me drunk and had sex with me, when you know that I didn’t 

want to have sex...while I was sober, I said that to you” is an 

inconsistent statement and the trial court erred by not 

permitting counsel to cross-examine Ms. Kane about that specific 

statement. 

. . . Not only does this specific statement contradict her 

testimony, but it would also lend some support to the defense 

theory that she wasn’t very drunk and consented to the sexual 

acts with the Appellant. Throughout the trial, counsel attempted 

to demonstrate this fact by highlighting Ms. Kane’s ability to 

effectively communicate with friends and other students in her 

dorm, physically move around her dorm and room, change 

clothes, meet Mr. Dukes and converse with him (including 

providing him with her telephone number), share text messages 

from Mr. Dukes with Ms. Urban and the Appellant, reply to the 

text messages from Mr. Dukes about his sexual advances 

towards her, have additional conversation with Ms. Senior and 

the Appellant and finally converse one-on-one with the 

Appellant. 

. . . Ms. Kane testified at length about what she drank and how 

much she drank. For a significant portion of the night she was 

drinking without the Appellant even being around. . . . Again, 

her statement from the wire intercept is inconsistent with her 

trial testimony.

Appellant’s Brief at 14-16. 

The Commonwealth replies that Appellant’s “argument is illogical. 

Defense counsel can point to no place in the transcripts of the wire intercept 

or the trial in which [Ms. Kane] stated she was sober at the time of the rape 

or that she consented to the sexual acts. . . . At best this is a collateral 

matter.” Commonwealth’s Brief at 19.

The first part of Ms. Kane’s telephone statement that Appellant 

references — that Appellant “got [her] drunk,” Tr. of Jan. 22, 2015 

Consensual Call at 3 — is not inconsistent with her trial testimony. At trial, 
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Ms. Kane related how Appellant brought vodka to her room and gave her 

several shots of it, making her “very, very drunk.” N.T., 4/18/16, at 129. 

The second part of Ms. Kane’s telephone statement that is highlighted 

by Appellant — her statement that she told Appellant she did not want to 

have sex “while [she] was sober,” Tr. of Jan. 22, 2015 Consensual Call at 3 

— requires closer examination. As Appellant points out, Ms. Kane testified 

during trial that she was intoxicated throughout the evening of January 21, 

2015 and the following morning. N.T., 4/18/16, at 114-15, 125. On careful 

review, however, we do not find the stark inconsistency that Appellant 

posits.

First, as the Commonwealth points out, there is no inconsistency in 

Ms. Kane’s statements that she was intoxicated at the time Appellant 

sexually penetrated her. At trial, she testified that by that time she was so 

intoxicated that her body went limp, her thoughts were disconnected, and 

she went in and out of consciousness. N.T., 4/18/16, at 142, 145, 147, 

151-53. In the phone call, Ms. Kane told Appellant, “You did it to me . . . 

while I was drunk.” Tr. of Jan. 22, 2015 Consensual Call at 6. 

Appellant’s contention is that Ms. Kane’s telephone statement that she 

told Appellant “while [she] was sober” about her preference to remain a 

virgin raises questions about whether she also was sober (or, at least, 

sufficiently sober to consent) at the time he penetrated her. But nothing in 

Ms. Kane’s telephone statement contradicts her trial testimony that her 

inebriation increased as the night progressed. Although Ms. Kane stated at 
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trial that she was drunk from the time when she visited Mr. Claycomb and 

Mr. Massaro in their dorm room, she also testified that at that time she was 

“still walking and talking” and “[k]new what [she was] doing.” N.T., 

4/18/16, at 97. When she later returned to her own room and Appellant 

asked her if she wanted more to drink, she “said, yes, because [she] didn’t 

think [she] was as drunk as [she] was, in retrospect.” Id. at 126. It was 

around this time, before imbibing Appellant’s vodka, that Ms. Kane discussed 

her desire to preserve her virginity. See id. at 80, 85, 114-16; N.T., 

4/20/16, at 45-46. The sexual intercourse happened later, after Appellant 

gave Ms. Kane “at least more than three shots” of vodka and she passed 

out. N.T., 4/18/16, at 126-27, 129; N.T., 4/19/16, at 50, 59, 63. 

Appellant’s telephone statements were consistent with this course of events. 

That her telephone call characterized her state at the time she expressed her 

virginity preference as “sober” while at trial she said she was intoxicated but 

“still walking and talking” and with knowledge of “what [she was] doing” 

does not present such an inconsistency as to make the trial court’s exclusion 

of the evidence an abuse of discretion, and we see no violation of Appellant’s 

due process rights in the trial court’s ruling. We note that Appellant did not 

even make this argument about an inconsistency in Ms. Kane’s statements 

regarding her degree of inebriation when he sought to use the phone call 

transcript in the trial court. See N.T., 4/19/16, at 5, 8, 88-89.

Moreover, insofar as the evidentiary ruling affected Appellant’s ability 

to test Ms. Kane’s credibility in testifying that she was intoxicated when the 
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sexual penetration took place, we believe any error was harmless. All the 

witnesses corroborated Ms. Kane’s testimony that she became increasingly 

intoxicated as that evening progressed. Ms. Senior, Mr. Claycomb, 

Mr. Adams, and Ms. Urban testified that Ms. Kane was extremely intoxicated 

on the night in question, with her outward signs of intoxication including a 

lack of coordination, falling down, and slurring her words. N.T., 4/19/16, at 

122, 261-66, 305-06, 320; N.T., 4/20/16, at 78. They said she nevertheless 

was lucid when discussing her sexual preferences, telling Appellant that she 

did not want to have sexual relations. N.T., 4/20/16, at 45-46, 84. But 

Ms. Urban testified that she then witnessed Appellant having intercourse 

with Ms. Kane while Ms. Kane was immobile and unresponsive. Id. at 83, 

91-93. Ms. Urban also asserted that Ms. Kane, upon regaining 

consciousness, was upset and confused, said she did not know what had 

happened, and, as soon as she realized that Appellant had had sexual 

relations with her, told Ms. Urban that she had not wanted to have 

intercourse. Id. at 95-96.

“The accused is entitled to a fair trial, not a perfect trial.” 

Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994). As the 

Supreme Court explained in Commonwealth v. Story, 383 A.2d 155 (Pa. 

1978):

[A]n error may be harmless where the properly admitted 

evidence of guilt is so overwhelming and the prejudicial effect of 

the error is so insignificant by comparison that it is clear beyond 

a reasonable doubt that the error could not have contributed to 

the verdict. . . . Once the court determines that the evidence of 
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guilt is overwhelming, it then decides if the error was so 

insignificant by comparison that it could not have contributed to 

the verdict.

Id. at 166; see also Commonwealth v. Jacoby, __A.3d__, 2017 WL 

4287343, *13-*14 (Pa., Sept. 28, 2017); Rasheed, 640 A.2d at 898. 

Based on our review of the record, we conclude that any error that may 

have occurred based upon the trial court’s exclusion of the phone 

conversation and resulting restriction of Appellant’s ability to cross-examine 

Ms. Kane about her degree of intoxication throughout the evening preceding 

the crime was harmless. The properly admitted evidence of guilt was so 

overwhelming and the prejudicial effect of the error was so insignificant by 

comparison that it is clear beyond a reasonable doubt that the error could 

not have contributed to the verdict. See id. Appellant is therefore not 

entitled to relief.

Judgment of sentence affirmed. 

Judge Olson joins the memorandum. 

Judge Musmanno files a dissenting memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2017