J-S14029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT JAMES STEVENS,

Appellant No. 1842 EDA 2014

Appeal from the PCRA Order of June 9, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000245-2010

and CP-45-CR-0000246-2010

BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 27, 2015

Appellant, Robert James Stevens, appeals from the order entered on 

June 9, 2014 denying his petition filed under the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm. 

This Court previously outlined the factual background of this case as 

follows:

In the early morning hours of September 10, 2009, Complainant 

was at her home with her friend. Appellant arrived and became 

angry. Complainant told him that she was going to drive her 

friend home. As Complainant was driving her friend home, 

Appellant began following them in his own vehicle. Appellant 

used his vehicle to strike Complainant’s vehicle and eventually 

forced her vehicle off the roadway. . . . Appellant was taken into 

custody in that case on January 10, 2010.

Although Appellant was the subject of a temporary protection 

from abuse order restricting his contact with Complainant, he 

called her from jail and told her to post his bail. Complainant 
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refused. Appellant, however, managed to arrange his bail 

through a third party based on promises that he would repay the 

cost of his bail and post bail for a fellow inmate. Appellant was 

released from jail on January 14, 2010, on the condition that he 

have no contact with Complainant, but he went directly to 

Complainant’s house. . . . 

Appellant entered Complainant’s home and began punching her 

in the face and head. He emptied Complainant’s purse on the 

floor, took $400[.00] in cash, and forced her to write a personal 

check for $2,000[.00]. He then bound her with duct tape and 

went outside to deliver the cash and check to the individuals who 

had posted his bail. He returned to the home and continued to 

strike Complainant until she lost consciousness. Complainant 

stated that when she momentarily regained consciousness, she 

was on the floor of her living room and Appellant was having 

sexual intercourse with her.

Appellant then took Complainant to her father’s truck, which she 

had been using after the September 10, 2009 incident, and 

placed her in the front passenger seat. Appellant drove the 

truck, but went off the roadway, struck a tree, and then 

careened into a mailbox of a residence. The owner of the 

residence came out to investigate the accident. Appellant 

approached him, told him that his dog was injured, and asked 

him for a ride. He dropped Appellant off at a nearby home and 

drove back to his own home. 

Upon further investigation around his mailbox, the owner of the 

residence saw Complainant in the front passenger seat of her 

father’s truck with her head leaning against the passenger side 

window. There was blood on the window and around her head. 

He went inside his home to have his wife call 911. By the time, 

he was ready to go back outside, Appellant had borrowed a 

second vehicle, picked up Complainant, and driven away from 

the scene of the accident. 

Appellant rented a motel room, and on the morning of January 

15, 2010, drove Complainant to the home of their mutual 

friends. Complainant went inside the residence, but was so 

bruised that their friends did not immediately recognize her. 

Appellant told them that she had been injured in a car accident. 

Complainant told one of the friends that Appellant had caused 

her injuries. The friend drove Complainant to a Pennsylvania 
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State Police barracks where she gave a statement implicating 

Appellant. 

Meanwhile, the other friend arranged for Appellant to go to a 

cabin, but called the State Police when Appellant left his 

residence. The State Police ultimately stopped and captured 

Appellant as he was driving on State Route 33. When searching 

Complainant’s home, investigators discovered ropes tied to the 

bedposts of Complainant’s bed. Complainant stated those ropes 

were not on the bed prior to the assault and suggested Appellant 

may have had intercourse with her on the bed. 

Appellant, after waiving his Miranda1rights, admitted that he 

had gone to Complainant’s home after being released on bail. 

Appellant also stated that they had consensual sexual 

intercourse three times, that Complainant had been driving her 

father’s truck at the time of the accident, and that she sustained 

her injuries in that accident. 

Commonwealth v. Stevens, 69 A.3d 1284 (Pa. Super. 2013) (unpublished 

memorandum), at 1-4 (certain footnote omitted). 

The procedural history of this case is as follows. Appellant was 

charged via two criminal informations with criminal mischief,2aggravated 

assault,3kidnapping,4 unauthorized use of a motor vehicle,5simple assault,6

 

1 Miranda v. Arizona, 384 U.S. 436 (1966). 

2 18 Pa.C.S.A. § 3304(a)(5).

3 18 Pa.C.S.A. § 2702(a)(1).

4 18 Pa.C.S.A. § 2901(a)(3).

5 18 Pa.C.S.A. § 3928(a).

6 18 Pa.C.S.A. § 2701(a).
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making terroristic threats,7 burglary,8trespassing,9sexual assault,10

unlawful restraint,11 robbery,12 two counts of rape,13 and two counts of 

recklessly endangering another person.14 The two informations were 

consolidated for trial and, on November 2, 2010, Appellant was found guilty 

of all charges and was eventually sentenced to an aggregate term of 46 to 

92 years’ imprisonment. After post-sentence proceedings concluded, this 

Court affirmed the judgment of sentence. Commonwealth v. Stevens, 69 

A.3d 1284 (Pa. Super. 2013) (unpublished memorandum).

On July 24, 2013, Appellant filed a pro se PCRA petition. Counsel was 

appointed and filed an amended petition. On March 21, 2014, an 

evidentiary hearing was held. On June 9, 2014, the PCRA court denied 

Appellant’s PCRA petition. This timely appeal followed.15 

 

7 18 Pa.C.S.A. § 2706(a)(1).

8 18 Pa.C.S.A. § 3502(a).

9 18 Pa.C.S.A. § 3503(a)(1)(i).

10 18 Pa.C.S.A. § 3124.1.

11 18 Pa.C.S.A. § 2902(a)(1).

12 18 Pa.C.S.A. § 3701(a)(1)(i). 

13 18 Pa.C.S.A. § 3121.

14 18 Pa.C.S.A. § 2705. 

15 On July 3, 2014, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

(Footnote Continued Next Page)
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Appellant presents one issue for our review:

Whether the [PCRA c]ourt erred by finding that trial counsel’s 

failure to file a pretrial [m]otion to [s]ever and a pre-trial 

[m]otion under Pennsylvania's Rape Shield Law did not amount 

to ineffective assistance of counsel which so undermined the 

truth determining process that no reliable adjudication of guilt or 

innocence took place[?]

Appellant’s Brief at 4. 

“[W]e review a denial of PCRA relief to determine whether the findings 

of the PCRA court are supported by the record and free of legal error.” 

Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014) (internal 

quotation marks and citation omitted). “The scope of review is limited to the 

findings of the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.” Commonwealth 

v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) (citation omitted).

Appellant’s lone claim on appeal is that his trial counsel rendered 

ineffective assistance. Our Supreme Court has explained:

[T]o prove counsel ineffective, [a PCRA] petitioner must 

demonstrate: (1) the underlying claim has arguable merit; (2) 

no reasonable basis existed for counsel’s actions or failure to 

act; and (3) the petitioner suffered prejudice as a result of 

counsel’s error such that there is a reasonable probability that 

the result of the proceeding would have been different absent 

such error. Counsel is presumed to have rendered effective 

assistance. 

(Footnote Continued)

Pa.R.A.P. 1925(b). On July 17, 2014, Appellant filed his concise statement. 

On August 6, 2014, the trial court issued a statement adopting its June 9, 

2014 opinion. Appellant’s lone issue on appeal was included in his concise 

statement. 
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A court is not required to analyze the elements of an 

ineffectiveness claim in any particular order of priority; instead, 

if a claim fails under any necessary element of the 

ineffectiveness test, the court may proceed to that element first. 

Finally, counsel cannot be deemed ineffective for failing to raise 

a meritless claim. 

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations 

omitted).

Appellant first argues that trial counsel was ineffective for failing to file 

a pre-trial motion to sever the two cases. We conclude that failure to seek 

severance did not prejudice Appellant. Appellant contends that the failure to 

sever the cases prejudiced him because it permitted details regarding the 

first incident to be admitted into evidence, thereby allowing the jury to infer 

that there was a motive for his commission of the crimes in the second 

incident. This argument, however, ignores Pennsylvania Rule of Evidence 

404(b). That rules provides, in relevant part:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with 

the character.

(2) Permitted Uses. This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident. In a criminal case this evidence is admissible 

only if the probative value of the evidence outweighs its potential 

for unfair prejudice.

Pa.R.Evid. 404(b) (emphasis added).

In this case, Appellant’s whole argument is that evidence of the first 

incident permitted the jury to infer that he had a motive for commission of 
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the second incident. This falls within the express terms of permissible uses

of a prior bad act since proof of a motive is the first example listed in Rule 

404(b). See Commonwealth v. Hairston, 84 A.3d 657, 669 (Pa. 2014) 

(prior bad act evidence admissible as it was used to prove motive); 

Commonwealth v. Green, 76 A.3d 575, 585 (Pa. Super. 2013), appeal 

denied, 87 A.3d 318 (Pa. 2014) (same); Commonwealth v. Wholaver, 

989 A.2d 883, 897 (Pa. 2010) (same); Commonwealth v. Malloy, 856 

A.2d 767, 775-776 (Pa. 2004) (same). 

The probative value of the first incident also outweighed the potential 

for its unfair prejudice. The evidence was highly probative as it provided the 

full picture of Appellant’s related crimes and why he went to Complainant’s 

house and assaulted her. The evidence of the first incident did not have “a 

tendency to suggest decision on an improper basis or divert the jury’s 

attention away from its duty of weighing the evidence impartially.” Parr v. 

Ford Motor Co., 2014 WL 7243152, *9 (Pa. Super. Dec. 22, 2014) (en 

banc) (internal quotation marks and citations omitted) (defining unfair 

prejudice). Instead, the evidence was merely adverse to Appellant’s case –

as is most evidence offered by the Commonwealth. Therefore, even if trial 

counsel had successfully had the two informations severed for trial, the first 

incident would have been admissible at the trial on the charges relating to 
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the second incident. Accordingly, Appellant was not prejudiced by trial 

counsel’s failure to seek severance.16

Appellant next contends that his trial counsel was ineffective for failing 

to file a motion seeking permission to offer evidence of Complainant’s prior 

consensual sexual encounters with Appellant. In particular, Appellant argues 

that he previously engaged in consensual bondage and rough sexual 

intercourse with Complainant. He contends that because Complainant 

alleged that she was restrained with ropes during one of the sexual assaults, 

 

16 It is for these same reasons that Appellant’s underlying claim lacks 

arguable merit. As this Court has explained:

Our Supreme Court has established a three part test . . . for 

deciding the issue of joinder versus severance of offenses from 

different informations. The court must determine whether the 

evidence of each of the offenses would be admissible in a 

separate trial for the other; whether such evidence is capable of 

separation by the jury so as to avoid danger of confusion; and, if 

the answers to these inquiries are in the affirmative, whether the 

defendant will be unduly prejudiced by the consolidation of 

offenses. 

Commonwealth v. Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013) 

(citation omitted).

As discussed above, the evidence of the first incident would have been 

admissible at the trial relating to the second incident and Appellant was not 

unduly prejudiced from the consolidation of the offenses. Finally, it was 

easy for the jury to separate the offenses because, as Appellant notes, the 

incidents were separated by both time and location. Therefore, Appellant’s 

underlying claim lacks arguable merit. 
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this evidence of consensual bondage was highly relevant to the issue of 

consent. 

Appellant’s trial counsel attempted to cross-examine Complainant 

regarding her prior consensual bondage with Appellant. The Commonwealth 

objected on the basis that the evidence was irrelevant. See Pa.R.Evid. 401. 

The trial court sustained the objection and ruled the evidence irrelevant. On 

direct appeal, this Court held that the trial court erred by sustaining the 

objection based upon Rule 401. Commonwealth v. Stevens, 69 A.3d 

1284 (Pa. Super. 2013) (unpublished memorandum), at 10-13. This Court, 

however, determined that the trial court should have sustained the objection 

based upon the Rape Shield Law because Appellant failed to file a written 

motion outlining his intention to cross-examine Complainant regarding their 

previous consensual bondage. Id. at 13. 

Under Pennsylvania’s Rape Shield Law, 

(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 sexual 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 victim is at issue and such evidence is otherwise 

admissible pursuant to the rules of evidence.

(b) Evidentiary proceedings. A defendant who proposes to offer 

evidence of the alleged victim’s past sexual conduct pursuant to 

subsection (a) shall file a written motion and offer of proof at the 

time of trial. If, at the time of trial, the court determines that 

the motion and offer of proof are sufficient on their faces, the 

court shall order an in camera hearing and shall make findings 

on the record as to the relevance and admissibility of the 
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proposed evidence pursuant to the standards set forth in 

subsection (a).

18 Pa.C.S.A. § 3104. 

We conclude that Appellant’s underlying claim lacks arguable merit. 

The Commonwealth’s theory of the case was not that Appellant tied up 

Complainant and then raped her while she was conscious. Instead, the 

Commonwealth’s theory was that Appellant beat Complainant unconscious, 

restrained her with ropes, and then raped her. As this Court stated on 

Appellant’s direct appeal, “it strains reason to believe that Appellant’s proffer 

of prior consensual bondage was probative on the question of consent in 

light of the trial evidence that Appellant beat Complainant into a state of 

unconsciousness and then raped her.” Commonwealth v. Stevens, 69 

A.3d 1284 (Pa. Super. 2013) (unpublished memorandum), at 13 n.7. 

Therefore, even if trial counsel had filed a written motion seeking permission 

to cross-examine Complainant regarding the prior consensual bondage, the 

evidence would have been inadmissible under the Rape Shield Law. 

Furthermore, Appellant has not proven actual prejudice as a result of 

trial counsel’s failure to file a written motion pursuant to the Rape Shield 

Law. In addition to Complainant’s testimony, there was substantial evidence 

of Appellant’s guilt consistent with the Commonwealth’s theory of the case 

and inconsistent with Appellant’s story. Specifically, Complainant had head 

wounds consistent with blunt force trauma inflicted by Appellant and 

inconsistent with injuries suffered in a car accident. Appellant admitted to 
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police that he had engaged in sexual intercourse with Complainant during 

this time period, when an active protection from abuse order was in place. 

Thus, even if Appellant were permitted to cross-examine Complainant 

regarding their prior consensual bondage, there is no reasonable probability 

that the result of the trial would have been different. Accordingly, the trial 

court properly concluded that Appellant failed to prove that trial counsel was 

ineffective and, therefore, correctly denied the petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2015