J-S07005-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN JONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 551 MDA 2018

Appeal from the Judgment of Sentence February 28, 2018

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0005514-2016, 

CP-67-CR-0006180-2016

BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.: FILED APRIL 17, 2019

Appellant, Kevin Jones, appeals from the judgment of sentence entered 

on February 28, 2018, following his jury trial convictions for two counts each 

of burglary and criminal trespass and one count each of theft by unlawful 

taking, indecent assault, and criminal attempt of sexual assault.1 We affirm.

We briefly summarize the facts and procedural history of this case as 

follows. This appeal involves two separate incidents that occurred on July 17, 

2016. At trial, M.E.2testified that while sleeping in her bed, she awoke at 

4:00 a.m. to find a man holding her hand. N.T., 10/30/2017, at 109. She 

told him to leave and he did. Id. M.E. noticed that a bottle of tequila was 

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1 18 Pa.C.S.A. §§ 3502(a)(1), 3503(a)(1)(ii), 3921(a), 3126(a)(1), 

901(a)/3124.1, respectively.

2

 We use the victims’ initials to protect their identities. 
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missing and that a window was open. Id. at 114-117. Police responded to a 

call from M.E. and she gave them a description of the intruder. Id. at 112.

Sometime later, police took M.E. to make an identification of a person they 

had taken into custody. Id. at 113. M.E. identified Appellant as the 

perpetrator. Id. She also identified Appellant at trial. Id. 

P.S. also testified at trial. She testified that she returned home on July 

17, 2016 between 1:00 a.m. and 2:00 a.m. after imbibing alcohol at a party. 

Id. at 126. P.S. testified that she had consensual sex with a male friend and 

that she fell asleep afterwards, but awoke to someone kissing her and feeling 

her breasts. Id. at 128-131. She also testified that the man was trying to

penetrate her vagina with his flaccid penis and his hand. Id. at 131-134. P.S. 

testified that she assumed it was her male friend but that she smelled 

cigarette smoke and realized that she did not know the person in bed with 

her. Id. at 131-132. P.S. demanded the man identify himself and leave. The 

man replied, “I’m Kevin Jones” and acted as if they knew each other. Id. at 

132. P.S. testified that she did not know the man and asked him to leave until

he finally acquiesced. Id. Before leaving, the man asked P.S. for a bottle of 

tequila that he left in her room. Id. at 135. She gave it to him and he left. 

Id. P.S. called the police. Id. at 136. When she went outside, police already 

had Appellant in custody inside a police car, the bottle of tequila was on top 

of the car, and P.S. was able to identify Appellant. Id. at 137. Police 

recovered a pair of unidentified boxer shorts from P.S.’s bedroom. Id. at 140. 

P.S. went to York Hospital where a trauma nurse performed a sexual assault
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examination. Id. at 140. P.S. gave a statement to police two days after the 

incident. Id. at 144. P.S. identified Appellant at trial. Id. at 137. 

On November 2, 2017, a jury convicted Appellant of the aforementioned 

charges. On February 28, 2018, the trial court sentenced Appellant to an 

aggregate term of 12 to 24 years of incarceration. Appellant filed a timely 

post-sentence motion on March 8, 2018. The trial court denied relief on March 

13, 2018. This timely appeal resulted.3 

On appeal, Appellant presents the following issues for our review:

1. The trial court erred when it misapplied the Rape Shield Law 

(Pa.R.E. 412/18 Pa.C.S.[A.] § 3104) by prohibiting Appellant 

from cross-examining the victim on prior sexual conduct on the 

evening of the incident. Appellant offered the testimony to 

demonstrate the victim had a poor memory of the evening and 

to demonstrate she was not credible as to the events of her 

allegation that Appellant assaulted or attempted to assault her 

in a sexual manner. Such impeachment testimony falls outside 

the scope of Section 3104, it was relevant, and it was not so 

overly prejudicial that the trial court should have prohibited the 

line of questioning of the victim. This limitation on 

cross-examination was an abuse of discretion, and a violation 

of Appellant’s confrontation rights under the Sixth Amendment 

of the U.S. Constitution and Article I, Section 9 of the 

Pennsylvania Constitution.

2. The Commonwealth presented insufficient evidence to convict 

Appellant of burglary beyond a reasonable doubt because the 

Commonwealth failed to prove Appellant entered the residence 

with the intent to commit a crime, namely, theft by unlawful 

taking.

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3

 Appellant filed a notice of appeal on March 23, 2018. On April 26, 2018, 

the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on 

August 8, 2018.
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Appellant’s Brief at 5.

In his first issue presented, Appellant claims that the trial court abused 

its discretion when it relied upon the Rape Shield Law at 18 Pa.C.S.A. § 3104 

to prohibit him from cross-examining P.S. regarding her consensual sexual 

activity on the same night, just prior to the incident at issue. Appellant’s Brief 

at 15-21. Appellant claims that the line of questions were not directed toward 

her virtue and chastity. Id. at 15. Instead, Appellant argues that questions 

about the prior sexual encounter between P.S. and her male friend4 were 

necessary because of discrepancies in her testimony as P.S. “had difficulty 

remembering whether [Appellant’s] penis penetrated her vagina, which is a 

necessary element for [s]exual [a]ssault.” Id. Thus, Appellant maintains 

“[t]he questioning about [P.S.’s] memory, including the earlier sexual activity 

occurring only several hours earlier, directly affected the jury’s assessment of 

her credibility.” Id. Additionally, Appellant claims that the Commonwealth 

opened the door to the prior consensual sexual activity by introducing 

evidence that in P.S.’s “inebriated and half-asleep state, she did not realize it 

was not her earlier sexual partner, [] but instead [Appellant] who returned to 

bed with her and attempted sexual intercourse.” Id. at 20-21. 

Our standard of review of a trial court's ruling on the admissibility of 

evidence is as follows:

A trial court's ruling on the admissibility of evidence of the sexual 

history of a sexual abuse complainant will be reversed only where 

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4

 P.S.’s friend did not testify at trial.
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there has been a clear abuse of discretion. An abuse of discretion 

is not merely an error of judgment, but if in reaching a conclusion 

the law is overridden or misapplied or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias, or ill will, as shown by the evidence or the record, discretion 

is abused.

Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) 

(internal quotations and citation omitted).

The Rape Shield Law provides:

(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 proposed evidence 

pursuant to the standards set forth in subsection (a).

18 Pa.C.S.A. § 3104.

Here, upon our review of the record, Appellant did not file a written 

motion or make an offer of proof prior to trial and the trial court did not 

determine whether an in camera hearing was warranted pursuant to 18 

Pa.C.S.A. § 3104(b). Instead, Appellant sought to question P.S. at trial about 
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consensual sex with an unrelated third-party. N.T., 10/30/2017, at 145-146. 

An en banc panel of this Court, however, has previously determined:

We have repeatedly stated that a defendant who desires to 

introduce evidence of the victim's prior sexual conduct must file a 

written motion and make a specific offer of proof prior to trial. 

See Commonwealth v. Beltz, 829 A.2d 680, 684 (Pa. Super.

2003) (failure to make written motion bars review of decision at 

trial to exclude); Commonwealth v. Kunkle, 623 A.2d 336, 339 

(Pa. Super. 1993), appeal denied, 637 A.2d 281 (Pa. 1993) 

(defendant's oral motion during trial, rather than a written motion 

and specific offer of proof, was wholly inadequate and there was 

no abuse of discretion by the trial court when it barred evidence 

pertaining to the prior sexual assault of the victim). We will 

presume that the legislature intended “shall” to be mandatory in 

the statute at hand. See generally Commonwealth v. 

Menezes, 871 A.2d 204, 209 (Pa. Super. 2005), appeal denied, 

890 A.2d 1057 (Pa. 2005). [T]he rape shield laws, as enacted by 

the various states, “were intended to end the abuses fostered by 

the common law rule by limiting the harassing and embarrassing 

inquiries of defense counsel into irrelevant prior sexual conduct of 

sexual assault complainants.” Commonwealth v. Nieves, 582 

A.2d 341, 346 (Pa. 1990), appeal denied, 600 A.2d 952 (Pa. 

1991). The requirement of a specific proffer of evidence was 

designed to prevent a “fishing expedition” into the areas protected 

by the Rape Shield Law. Commonwealth v. Wall, 606 A.2d 449, 

457 (Pa. Super. 1992), appeal denied, 614 A.2d 1142 (Pa. 1992).

In determining whether the application of the Rape Shield Law 

violates a defendant's constitutional rights to confront and 

cross-examine witnesses against him, this [C]ourt has [] held:

In Pennsylvania, we have come to resolve this 

question through a relatively elaborate procedure 

which is designed to ensure that no evidence of the 

victim's sexual history is introduced unless and until it 

can be established that to exclude such evidence 

would lay victim to the very raison d'etre of the trial 

itself: the pursuit of truth. The process begins with the 

defendant submitting a specific proffer to the court of 

exactly what evidence he or she seeks to admit and 

precisely why it is relevant to the defense. This 
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procedure forces the defendant to frame the precise 

issues and interests involved, and prevents him or her 

from embarking upon ‘fishing expedition style 

intrusions on Rape Shield Law protections.’ Where the 

proffer is but vague and conjectural, evidence of the 

victim's past sexual conduct will be excluded and no 

further inquiry need be entertained.

Burns, 988 A.2d at 690–691 (some citations omitted).

Here, there was no written motion or offer of proof filed prior to trial. 

Such failure was fatal to Appellant’s claim and bars our review of the trial 

court’s decision to prohibit the line of questioning. Moreover, assuming 

arguendo that Appellant properly raised and preserved the claim, our review 

leads to the conclusion that the trial court properly precluded the evidence in 

contention. We have recently reiterated:

[T]he Rape Shield Law must at times yield to a defendant's right 

to cross-examine witnesses and instructs the trial court to conduct 

a balancing test that considers whether the proposed evidence is 

relevant to attack credibility, whether the probative value 

outweighs the prejudicial impact and whether there are 

alternative means to challenge credibility:

Evidence that tends to impeach a witness' credibility 

is not necessarily inadmissible because of the Rape 

Shield Law. When determining the admissibility of 

evidence that the Rape Shield Law may bar, trial 

courts hold an in camera hearing and conduct a 

balancing test consisting of the following factors: (1) 

whether the proposed evidence is relevant to show 

bias or motive or to attack credibility; (2) whether the 

probative value of the evidence outweighs its 

prejudicial effect; and (3) whether there are 

alternative means of proving bias or motive or to 

challenge credibility.

Also, this [C]ourt has held that evidence of past sexual conduct 

by the victim with third persons is of little relevance to the issue 
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of consent between the victim and a defendant when the victim 

and defendant did not have a prior sexual relationship.

Commonwealth v. Cramer, 195 A.3d 594, 603 (Pa. Super. 2018) (internal 

citations and original emphasis omitted). 

Here, the trial court determined that the prejudice to the victim 

outweighed the probative value of the proffered evidence and there were 

alternative means to test the victim’s credibility. It opined that Appellant 

tested the victim’s credibility by questioning: (1) the victim about her level 

of intoxication and recollection of events; (2) the trauma nurse about the 

victim’s ability to remember details of the incident; and, (3) the officer who 

memorialized the victim’s statements soon thereafter. See Trial Court 

Opinion, 8/8/2018, at 25. Moreover, the trial court noted that the jury was 

able to “sift” through the victim’s testimony in determining her credibility, 

because it acquitted Appellant of a “completed sexual assault” and, therefore, 

could “draw a distinction regarding penetration.” Id. We agree with the trial 

court’s balancing assessment and discern no abuse of discretion in precluding 

cross-examination about P.S.’s prior unrelated sexually activity. Accordingly, 

Appellant’s first claim lacks merit.

Next, Appellant claims that the Commonwealth failed to present 

sufficient evidence to support his conviction for burglary, because it did not 

prove that Appellant entered M.E.’s residence with the intent to commit a 

crime therein. Appellant’s Brief at 22-24. In sum, he contends:

While [Appellant] stole a bottle of tequila for which a jury 

convicted him, the circumstances do not suggest that he entered 

with such intent. He did not immediately raid the liquor cabinet, 
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nor did he rummage through any other areas of the home looking 

for valuables. At best, the evidence demonstrates that after 

[M.E.] realized he was in the residence and told [him] to leave, 

[Appellant] grabbed the bottle of tequila on the way out the door. 

This demonstrates [Appellant’s] intent to steal the bottle formed 

after, not contemporaneously, with the act of entering [M.E.’s] 

residence without permission.

The Commonwealth may contend that [Appellant] was in the 

process of committing some form of assault on [M.E.] and that is 

sufficient to demonstrate a contemporaneous intent to commit a 

crime as he entered the residence. However, [M.E’s] testimony 

demonstrates that [Appellant] never took any steps to get into 

bed or remove his (or her) clothes while in [M.E.’s] residence. 

[Appellant] held her hand and talked to her until she woke up and 

told him to leave. When told to leave, he did so immediately. 

Beyond a tenuous assumption based on these facts, no other 

evidence was presented to suggest [Appellant] entered [M.E.’s] 

residence with an intent to commit any crime.

Id. at 23-24. 

Our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant's guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the finder of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.
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This standard is equally applicable to cases where the evidence is 

circumstantial rather than direct so long as the combination of the 

evidence links the accused to the crime beyond a reasonable 

doubt. Although a conviction must be based on more than mere 

suspicion or conjecture, the Commonwealth need not establish 

guilt to a mathematical certainty.

Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018) (internal 

citations and quotations omitted).

“Burglary is defined as the act of entering or occupying a structure with 

intent to commit a crime therein.” Commonwealth v. Baker, 2018 WL 

6729840, at *4 (Pa. Super. 2018), citing Commonwealth v. Magnum, 654 

A.2d 1146, 1147 (Pa. Super. 1995); 18 Pa.C.S.A § 3502(a)(2). A “totality of 

the circumstances” approach is implemented where “[t]he Commonwealth 

must establish, as part of its evidentiary burden, additional evidence that goes 

beyond the mere breaking in of a door or window.” Baker, 2018 WL 6729840, 

at *4 (citation omitted). Our Supreme Court has also stated:

[I]n order to secure a conviction for burglary, the Commonwealth 

is not required to allege or prove what particular crime [a 

defendant] intended to commit after his forcible entry into the 

private residence. A conclusion to the contrary would place the 

police and citizens of this Commonwealth in the dangerous 

position of having to permit a burglar to take a substantial step 

towards the commission of a particular crime, potentially risking 

violence, in order to secure a conviction for burglary. 

Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994).

5

 In addition, 

flight can constitute circumstantial evidence of consciousness of guilt. See 

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5

 Apropos to the instant case, the Alston decision also cited Justice James 

T. McDermott’s decision in Commonwealth v. Wagner, 566 A.2d 1194, 

1194 (Pa. 1989), wherein Justice McDermott stated:
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Commonwealth v. Housman, 986 A.2d 822, 831 (Pa. 2009) (citation 

omitted).

Here, Appellant intentionally and surreptitiously entered M.E.’s premises 

by opening and climbing through a window. Once inside, Appellant sat quietly 

next to M.E. and held her hand while she slept. When the victim woke up 

and demanded Appellant leave, he fled. The fact that Appellant did not 

commit any sexual or physical acts against M.E. (ostensibly because she 

awoke and demanded Appellant leave) did not prohibit a jury from finding that 

Appellant intended to commit a crime against the victim when he entered her 

home through a window. The Commonwealth was not required to specify the 

intended crime and Appellant did not have to take a substantial step towards 

the commission of a specific crime. Moreover, Appellant does not dispute that 

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When a stranger first tries to enter your garage, and then breaks 

the window of your door, on a given evening, neither you nor a 

jury should be considered harsh, if you believe he is not an aimless 

waif bringing compliments of the evening, or a passing sojourner 

of eccentric ways, or a harmless loiterer in the evening shadows.

Those supporting reversal would have us believe that hiding in 

your bedroom under such conditions is an unnecessary foolishness 

in the presence of simple pleasantries. They would see no evil 

through such jaundiced eyes, hear none in the melodious tinkle of 

your breaking window, and obviously would say no evil of a man 

with an umbrella. The jury could find, and did, more sinister 

reasons afoot. I would leave the appellant[, Wagner,] where they 

found him, doing what they had every right to believe he was 

doing, attempting a burglary.

Alston, 651 A.2d at 1095, citing Wagner, 566 A.2d at 1194.
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he actually stole a bottle of tequila from the residence while inside. Instead,

he contends that he did not form an intent to take the liquor prior to entry. 

Based upon a totality of the circumstances, however, the jury was free to 

determine otherwise and we will not usurp that decision. Finally, Appellant 

fled the residence and the jury was free to infer that Appellant’s consciousness 

of guilt further supported an intent to commit a crime. Based upon the totality 

of the circumstances and viewing the evidence in the light most favorable to 

the Commonwealth as verdict winner, we conclude that there was sufficient 

evidence showing Appellant intended to commit a crime before entering M.E.’s 

residence. Hence, the trial court did not abuse its discretion or err as a matter 

of law in rejecting Appellant’s sufficiency challenge and Appellant’s second 

issue fails.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/17/2019