J-A15016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER HOGAN LAMPE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1205 EDA 2019

Appeal from the Judgment of Sentence Entered March 26, 2019

In the Court of Common Pleas of Chester County Criminal Division at 

No(s): CP-15-CR-0003528-2016

BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: Filed: October 22, 2020

Tyler Hogan Lampe appeals from the judgment of sentence, entered in 

the Court of Common Pleas of Chester County, following his convictions by a 

jury for one count each of rape of an unconscious person1 and sexual assault,2

and two counts each of aggravated indecent assault3 and indecent assault.

4

 

Upon careful review, we affirm.

The trial court set forth the facts of the case as follows:

On March 17, 2016, [Lampe] was a 19-year[-]old cadet in his 

freshman year at West Point. That night, [Lampe] went to West 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3121(a)(3). 

2 18 Pa.C.S.A. § 3124.1.

3 18 Pa.C.S.A. §§ 3125(a)(1), (a)(4). 

4 18 Pa.C.S.A. §§ 3126(a)(1), (a)(4).
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Chester University to visit friends, Jake Myers and Allison 

Tomassini. [Lampe] drank alcohol at [] Tomassini’s apartment. 

[Lampe] and Myers then attended a St. Patrick’s Day party, where 

more alcohol was consumed. Throughout the night, [Lampe]

drank a large amount of alcohol. [Lampe and Myers] then went 

back to Tomassini’s apartment, where they planned on sleeping 

that night. [] Tomassini lived with [L.H., the victim,] and Nora

Hughes. [L.H.] met [Lampe] at her apartment that night, but did 

not go out with [Lampe] and [Myers]. [L.H.] also consumed a 

large amount of alcohol that night. At some point during the 

night, [Lampe] stated that if he didn’t “smash” (have sex with) 

someone, he might try to get with [L.H.].

At approximately 2:00 a.m. on March 18, 2016, [Lampe] entered 

[L.H.’s] room after she had gone to bed. Both of their clothes 

were removed, folded, and placed in a pile. Tomassini could hear 

“sex sounds” coming from the room [next to her own]. She 

became upset and told Myers [what was occurring via phone call]. 

[] Myers and [] Hughes then entered [L.H.’s] room. [L.H.] awoke 

to [Lampe] being on top of her with his penis inside of her vagina 

and [] Myers yelling, “get off of her, get off of her.” N.T. [Trial,] 

10/9/18, [at] 46-47.

* * *

Due to the consumption of alcohol, neither [Lampe] nor [L.H.] has 

any recollection of the incident. [] Hughes, however, testified that 

she was not drinking that night and instead was studying for a 

test. [Id. at] 10. [Hughes] stated that when Tomassini called []

Myers [on the phone], [Hughes] and [] Myers ran upstairs. [Id.

at] 25. [] Hughes testified that she walked into the room where 

[Lampe] and [L.H.] were[,] right behind [] Myers. [Hughes] saw 

that [Lampe] was having sex with [L.H.], holding [L.H.’s] legs 

while [L.H.’s] eyes were closed, she was not moving[,] and her 

body was limp. [Id. at] 31-32, 66. [] Hughes testified that [L.H.]

was unconscious and passed out. [Id. at] 66. [Hughes] yelled at 

[Lampe] to get off [L.H.] and [] Myers had to pull [Lampe] off of 

[L.H.]. [Id. at] 33. [] Myers, [Lampe’s] lifelong best friend, 

testified that he heard [L.H.] say, “yes, Tyler,” two separate times. 

[] Hughes rebutted [] Myers[’] testimony, stating that [L.H.] never 

said “yes, Tyler,” and she heard [] Myers tell another person over 

the phone[, minutes after the incident, that] “Tyler raped her.”

[Id. at] 67-68.
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On March 18, 2016, [L.H.] reported the incident to police. She 

went to the hospital where she underwent an examination. 

Erythema (redness) was observed on both the left and right 

vaginal walls. Dr. Diane Kane of the Chester County Hospital 

testified that when a woman is aroused, there is natural 

lubrication in that area. N.T. [Trial,] 10/10/18, [at] 221. The 

inference is that [L.H.] was unconscious, and therefore, not 

aroused, which is why she suffered this injury to her vaginal walls.

At the direction of the police, [L.H.] participated in a wiretapped, 

recorded conversation with [Lampe]. [Lampe] admitted that he 

was so drunk, he had no idea what happened, but that he knew 

that [L.H.] would not have consented [].

Trial Court Opinion, 12/16/19, at 3-5. After a four-day trial, a jury found 

Lampe guilty of the above crimes. The court subsequently sentenced Lampe 

to three to six years’ incarceration. Lampe filed a post-sentence motion nunc 

pro tunc, and a “supplement,” both of which the court denied. Both Lampe 

and the trial court complied with Pa.R.A.P. 1925. On appeal, Lampe raises 

the following issues for our review, which we have renumbered for ease of 

disposition:

1. Whether the trial court erred in denying [] Lampe’s motion for 

judgment of acquittal due to an insufficiency of the evidence 

for unconsciousness and nonconsent?

2. Whether the trial court erred in denying [] Lampe’s motion for 

judgment of acquittal as the verdict was against the weight of 

the evidence for unconsciousness and nonconsent?

3. Whether the trial court erred in its [R]ape [S]hield rulings?

4. Whether the trial court, outside of the presence of the jury, 

erred in admonishing two exculpatory witnesses under threat 

of contempt against testifying truthfully and completely? 

5. Whether the trial court erred in instructing the jury that 

“intoxication is not a defense”?

6. Whether the trial court erred in failing to instruct the jury they 

could adjourn for the evening before first rendering a verdict?
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7. Whether the trial court erred in denying [] Lampe’s request for 

a new trial due to juror misconduct, or, in the alternative, 

denying [] Lampe’s request for a hearing to explore and 

develop evidence of juror misconduct?

Appellant’s Brief, at 4-5 (some capitalization omitted). 

Lampe first challenges the sufficiency of the evidence for each of his 

convictions. Lampe claims that none of his convictions is supported by 

sufficient evidence because L.H. was not unconscious and, furthermore, 

because the Commonwealth failed to prove L.H.’s lack of consent. See

Appellant’s Brief, at 35-45. We disagree. There was sufficient evidence to 

support each of Lampe’s convictions. 

Our standard of review for a challenge to the sufficiency of the evidence 

is well-settled:

In examining a challenge to the sufficiency of the evidence, we 

must determine whether, viewing all the evidence admitted at 

trial in the light most favorable to the Commonwealth, there is 

sufficient evidence to enable the fact[-]finder to find every 

element of the crime beyond a reasonable doubt. The 

Commonwealth may sustain its burden of proving every element 

of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. The established facts and circumstances 

do not have to be absolutely incompatible with the accused’s 

innocence, but any doubt is for the fact[-]finder unless 

the evidence is so weak and inconclusive that no probability of fact 

can be drawn from the totality of the circumstances as a matter 

of law.

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (internal 

citations omitted). 

Lampe claims that the Commonwealth failed to establish the offenses 

of rape, aggravated indecent assault, and indecent assault of an unconscious 
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person because the Commonwealth failed to prove that L.H. “[was] 

unconscious or [that Lampe knew] that [L.H. was] unaware that the sexual 

intercourse [was] occurring, and [] knew or recklessly disregarded the fact 

that [L.H.] was unaware that the intercourse was occurring.” Appellant’s 

Brief, at 36 (emphasis omitted).

5

 Specifically, Lampe points to witness 

testimony that L.H. was making audible sex noises, which were heard through 

the closed-door bedroom walls, to demonstrate that L.H. was not 

unconscious.

6 Lampe concludes that “[s]omeone who is asleep or unconscious 

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5 See 18 Pa.C.S.A. §§ 3121(a)(3), 3125(a)(4), and 3126(a)(4), which all 

require proof that the “complainant is unconscious or the person knows 

that the complainant is unaware” during the commission of the crime. 

(emphasis added).

6 At trial, Myers testified that “we get up to the door of [L.H.] and Tyler’s room 

where you can still hear the noises and then I’m like[,] it’s definitely confirmed 

what I’m about to walk in on.” N.T. Trial, 10/9/18, at 171. When asked what 

he saw when he opened the door, Myers testified “Silhouettes. It was pretty 

dark in there. So I can just kind of see bodies moving into each other. It’s 

mostly just noises. I can hear, it was easy to tell what was going on.” Id. at 

178. Finally, Myers agreed that he “interrupted [Lampe] having what [Myers] 

thought at the time was consensual sex.” Id. at 179. In response to who 

was making noises, Myers testified “[b]oth of them are moaning. [L.H.] is 

moaning a little bit louder. She says: [‘]Yes[,] Tyler[’] twice. . . .” Id. at 

217.

Tomassini testified that after Lampe left her room, “it was moments later I 

hear[d] sex noises.” Id. at 262. When asked to clarify what “moments” 

meant, Tomassini stated, “I was not looking at the time. I wasn’t paying 

attention to the time. I was just laying in my bed. The next thing I know, I 

heard sex noises.” Id. On cross-examination, Tomassini testified that she 

could hear noises coming from L.H., but not from Lampe. Id. at 310-11.
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[does] not make sex noises[,] . . . walk[], talk[], or us[e] the bathroom.” 

Id. at 40.

Our Supreme Court defined the term “unconscious” for purposes of 

interpreting section 3121(3) of the Crimes Code in Commonwealth v. Erney, 

698 A.2d 56 (Pa. 1997). In that case, the appellant argued that the statute

only protects victims who were “completely unaware of the event throughout 

the duration of the sexual assault upon them.” Id. at 59. The Court, in 

rejecting appellant’s claim and finding the evidence sufficient, stated: 

When the assault began, [the victim] displayed no awareness of 

external events. As the crime progressed, she believed that she 

was shouting for appellant to stop, but was completely unable to 

perceive how she was communicating—i.e., that she was merely 

mumbling. She offered no response when [] questioned [] during 

the assault. Additionally [the victim] had no knowledge of what 

ultimately brought an end to appellant’s actions[.] . . . Her 

complete lack of awareness of the duration of the assault further

indicates that she was not conscious throughout its entirety. 

Thus, despite her ability to perceive some aspects of the incident, 

her lack of knowledge of much of what occurred supports the 

finding that she was unconscious during portions of the assault 

and was, therefore, unable to consent to sexual intercourse. 

Because there was ample evidence from which the jury could 

properly find that the victim, during at least portions of the 

assault, lacked knowledge or awareness of both her own 

sensations and external events, and was not in the normal waking 

state, the evidence was sufficient to support the finding that she 

was unconscious within the meaning of the statute.

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Hughes testified that when she entered the room, L.H. “was making noises, 

but like not like words or anything.” N.T. Trial, 10/10/18, at 32. Hughes 

further testified that, upon entering the room with Myers, she noticed that 

L.H. was “laying on the bed,” id. at 66, “her eyes are closed,” id., “[a]nd she’s 

limp,” id., and “from that[, Hughes] perceive[d] that [L.H.] was unconscious 

or passed out.” Id. Hughes also testified that L.H. was making noise, and 

that Lampe was not. Id.
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Id. The Court concluded that “the evidence support[ed] the findings that the 

victim was intermittently unconscious throughout the assault and was at all 

relevant times in such impaired physical and mental condition so as to be 

unable to knowingly consent, [therefore] her submission to intercourse was 

involuntary.” Id. See also Commonwealth v. Diaz, 152 A.3d 1040 (Pa. 

Super. 2016), (interpreting the term “unconscious” for purposes of sections 

3121(a)(3) and 3126(a)(4) and finding sufficient evidence of unconsciousness 

where victim testified she was so intoxicated she was “blacking in and out”;

victim remembered some events preceding and during assault, but not all;

and victim could not communicate, and felt paralyzed, during assault).

Here, the evidence similarly showed that L.H. was, at the very least,

“intermittently unconscious” at the time of the assault. See Erney, supra. 

L.H. fell asleep with her clothes on and went to bed after a night of drinking. 

See N.T. Jury Trial, 10/9/20, at 45. She testified that the next thing she 

remembered was “waking up to [] Myers’ voice, and [] a light coming in front 

of the bedroom from the hallway, and [Lampe] standing—or not standing. I 

remember him over top of me.” Id. at 46. L.H. testified that she felt a penis 

inside of her vagina but she “didn’t know who[se] it was.” Id. at 47. She 

testified that she did not willingly have sex with Lampe and that she did not 

know he was inside of her until she was awakened by Myers. Id. L.H. testified 

that she heard Myers “yelling: Get off her. Get off her[,]” and then Lampe 

was “pulled off” of her. Id. After waking up, L.H. was confused and started 

crying. Id. She was also naked but had no memory of removing her clothing. 
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Id. at 48. L.H. had no recollection of going to the bathroom after being woken

up, even though Hughes testified that she brought her there immediately after 

the assault. Id. at 48. L.H. testified that she was still under the influence of 

alcohol when she went back to bed after the assault. Id. at 49. L.H. further 

testified that when she woke up the next morning, she “thought that I had 

been raped, but I was not exactly—I didn’t even understand what had 

happened or how it could have happened really.” Id.

Instantly, like in Erney, the evidence supports the conclusion that L.H.

“was intermittently unconscious throughout the assault and was at all relevant

times in such impaired physical and mental condition so as to be unable to

knowingly consent such that her submission to intercourse was involuntary.” 

Erney, supra at 59 (footnote omitted). Viewing the evidence in the light 

most favorable to the Commonwealth, as verdict winner, the Commonwealth

proved beyond a reasonable doubt that L.H. was unconscious within the

meaning of the relevant statutes; consequently, the evidence was sufficient

to sustain each of Lampe’s convictions under sections 3121(a)(3), 3125(a)(4),

and 3126(a)(4). See Lyons, supra.

Lampe also claims that the Commonwealth failed to prove L.H.’s lack of

consent under sections 3124.1, 3125(a)(1), and 3126(a)(1).7 However, we

must reject this claim because the Commonwealth established L.H.’s lack of

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7 Each of these statutes requires proof that defendant acted “without the 

complainant’s consent.” (emphasis added).
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consent through her unconscious state. See Diaz, supra at 1044 (finding

evidence sufficient to sustain appellant’s convictions for sexual assault and

aggravated indecent assault where Commonwealth established lack of consent

by victim’s unconscious state.) Therefore, the evidence was sufficient to

sustain each of the elements of Lampe’s convictions under sections 3124.1,

3125(a)(1), and 3126(a)(1) beyond a reasonable doubt.8 See Lyons, supra.

____________________________________________

8 Lampe argues under the sufficiency heading of his brief that, 

[i]t is practically impossible that, within such a short period of 

time, Mr. Lampe, uncharacteristically and drunkenly deviant (as 

argued by the Commonwealth in summation), stumbled into

[L.H.’s] room, navigated past [a] sleeping [friend] in another bed 

[next] to [L.H.’s] bed in the back corner, removed his jeans and 

shirt, removed her shorts, stockings, and underwear—each from 

her hips, down and off her legs—removed her shirt over her head 

and her bra from around her back, all without her assistance while 

she was unconsciously limp at 5'10" and 170 pounds, placed his 

and her clothing in a neat pile, then lifted up her legs and 

penetrated her and caused her to make sex noises heard through 

the walls all without waking her up. No reasonable jury could 

make sense of this. Such a theory to convict on rape goes against 

human experience and the laws of nature. . . .

. . . Mr. Lampe was distinguished as the perpetrator because 

[L.H.] recounted intermittent facts about the encounter, but not 

those specifically concerning her own behavior, and stated afterthe-fact that she did not provide consent because she was asleep. 

This is distinguished from Mr. Lampe who had completely no 

memory of the event. Should this Court decide, notwithstanding 

sex noises, that any alleged inability to recall certain portions of 

an incident due to independently induced intoxication is sufficient 

to show a complainant is unconscious and unable to form consent, 

then the same principle applies to Mr. Lampe. As he had 

absolutely no memory of this encounter, he too was unconscious 
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Next, Lampe raises a challenge to the weight of the evidence.

Specifically, Lampe claims that Hughes’ testimony was fraught with

uncertainty because she stated she did not know or was unsure of pertinent

facts upwards of twenty times; there was inconsistency as to how much

alcohol L.H. had to drink; there were discrepancies about the amount of

clothing Lampe removed from L.H. while she was unconscious; L.H.

remembered what occurred before and after the assault, but nothing during;

and all of the witnesses who testified agreed that they heard L.H. making sex

noises. See Appellant’s Brief, at 46-53.

Our standard of review for a challenge to the weight of the evidence is

well-settled:

A motion for a new trial alleging that the verdict was against the 

weight of the evidence is addressed to the discretion of the trial 

court. An appellate court, therefore, reviews the exercise of 

discretion, not the underlying question whether the verdict is 

against the weight of the evidence. The factfinder is free to 

believe all, part, or none of the evidence and to determine the 

credibility of the witnesses. The trial court will award a new trial 

____________________________________________

and incapable of forming consent and was a victim of rape on the 

same basis as [L.H.].

Appellant’s Brief, 44-46 (emphasis in original). This argument goes to the 

weight, rather than sufficiency of the evidence. See Commonwealth v. 

Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (when “[d]irected entirely to the 

credibility of the Commonwealth’s chief witness, [a]ppellant’s claim challenges 

the weight, not the sufficiency of the evidence.”). “The weight of the evidence 

is exclusively for the finder of fact, which is free to believe all, part, or none 

of the evidence, and to assess the credibility of the witnesses. . . . An 

appellate court cannot substitute its judgment for that of the jury on issues of 

credibility.” Id. (citations omitted). As further explained, infra, the trial court 

did not abuse its discretion with regard to its ruling on the weight of the 

evidence.
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only when the jury’s verdict is so contrary to the evidence as to 

shock one’s sense of justice. In determining whether this

standard has been met, appellate review is limited to whether the

trial judge’s discretion was properly exercised, and relief will only

be granted where the facts and inferences of record disclose a

palpable abuse of discretion. Thus, the trial court’s denial of a

motion for a new trial based on a weight of the evidence claim is

the least assailable of its rulings.

Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007).

In its Rule 1925(a) opinion, the trial court explained why it denied 

Lampe’s challenge to the weight of the evidence as follows:

In the instant case, the jury chose to find the Commonwealth’s 

witnesses credible and decided not to believe [Lampe’s] version 

of events. Based on a review of the evidence, the jury’s finding 

does not “shock one’s sense of justice.” Even though the defense 

tried to claim that [Lampe] did not commit the crimes charged, 

the Commonwealth presented sufficient evidence for the jury to 

conclude that he did, in fact, commit them. Although there was 

much more Commonwealth evidence than just her testimony, [] 

Hughes’ testimony alone could have convinced a jury of [Lampe’s]

guilt. [] Hughes was an unbiased, sober witness who literally 

walked in on [Lampe] having sex with an unconscious woman.

Based on the evidence introduced at trial, the court finds that 

[Lampe’s] claim that the verdict was against the weight of the 

evidence is without merit.

Trial Court Opinion, 12/16/19, at 11. 

Here, all of the witnesses were vigorously challenged and subject to 

cross-examination on the specific issues Lampe identified above throughout 

the course of the four-day trial. The jury ultimately believed the combined 

testimonies of L.H. and Hughes, and resolved the noted inconsistencies. See

Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (“The weight 

of the evidence is exclusively for the finder of fact, which is free to believe all, 

part, or none of the evidence, and to assess the credibility of the witnesses.”). 
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After our review of the record, we cannot say that the jury’s verdict was so 

contrary to the evidence, discussed supra, as to shock one’s sense of justice. 

See Cousar, supra. Therefore, the trial court acted within its discretion in 

denying Lampe’s motion for a new trial on the grounds that the verdict was 

against the weight of the evidence. Id.

Next, Lampe challenges the trial court’s Rape Shield ruling. Specifically, 

Lampe points to an interview that Detective Stan Billie of the West Chester 

Police Department conducted of Tomassini, as an example of the evidence he 

wishes to introduce.9 First, Lampe claims that the trial court erred when it 

excluded evidence of L.H.’s bias and her “ulterior motive to fabricate a claim 

of rape against [Lampe.]” Appellant’s Brief, at 30. Second, Lampe claims 

that the trial court erred when it “failed to consider whether the probative 

value of the evidence sought by [] Lampe outweighed the potential for unfair 

____________________________________________

9

In that interview, the following exchange took place:

Detective Billie: So prior to all this earlier in the day or earlier in 

the night, did you make any mention to anybody about Tyler 

coming over[?] I mean [‘]hands off[; h]e’s mine tonight,[’] or 

something like that?

[Tomassini]: Yeah. I said it to [L.H.] because she tends to, like, 

I don’t really know how to describe it. She really enjoys sex and 

she, when she gets drunk, she blacks out like every single time 

without a doubt. And I had a feeling that if she got drunk and was 

planning to go out, which she was, she was going to hook up with 

[Tyler] and make me uncomfortable.

Appellant’s Brief, at 26; Transcribed Taped Interview of Allison Tomassini, 

5/4/16, at 22-23.
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prejudice” because Lampe’s proposed evidence “is not inflammatory.” 

Appellant’s Brief, at 33. 

To the extent that these questions raise Confrontation Clause issues,

our standard of review is de novo and our scope of review is

plenary. Palmore, supra at 294. Moreover, when subsidiary evidentiary

issues are raised, we review the trial court’s determination for an abuse of

discretion. Id.

The Rape Shield Law is governed by section 3104 of the Crimes Code, 

which states:

(a) General rule.— Evidence of specific instances of the alleged

victim’s past sexual conduct, past sexual victimization, allegations

of past sexual victimization, 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 of any offense listed in subsection (c) 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, past

sexual victimization, allegations of past sexual victimization,

opinion evidence of the alleged victim’s past sexual conduct and

reputation 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).
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18 Pa.C.S.A. §§ 3104(a); (b) (emphasis added). Additionally, we have 

previously recognized a constitutional exception to this rule for evidence of 

the victim’s bias or motive for fabrication because “the Rape Shield Law may 

not be used to exclude relevant evidence showing witness bias or attacking a 

witness’ credibility.” Commonwealth v. Palmore, 195 A.3d 291, 295 (Pa. 

Super. 2018) (quoting Commonwealth v. Holder, 815 A.2d 1115, 1119 n.1

(Pa. Super. 2003)) (brackets omitted).

To satisfy the fabrication exception to the Rape Shield Law,10 Lampe 

claims that L.H. had three possible reasons to fabricate the rape claim: (1) 

____________________________________________

10 We have previously held that not all evidence showing fabrication or bias is 

admissible. “Pennsylvania’s Rape Shield Law may not be used to exclude 

relevant evidence showing witness’ bias or attacking credibility.” 

Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super. 1985) “Although 

logically relevant, evidence tending to show the victim’s prejudice or lack of 

credibility may be excluded if ‘it would so inflame the minds of the jurors that 

its probative value is outweighed by unfair prejudice.’” Id. (citation omitted).

The trial court must engage in a four-part inquiry if a defendant

seeks admission of a victim’s past sexual conduct under either the

statutory exception or a constitutional exception to the Rape

Shield Law. After a defendant provides notice that he or she

wishes to introduce such evidence, see 18 Pa.C.S.A. § 3104(b),

the trial court must determine if the proffered reason for

introduction of past sexual conduct evidence is mere speculation

or conjecture. If the proffered evidence is not speculation or

conjecture, the trial court must conduct an in camera hearing. At

the conclusion of that hearing

[t]he trial court must determine (1) if the evidence sought

to be admitted is relevant to the accused’s defense, (2)

whether the evidence sought to be admitted is merely

cumulative of evidence otherwise admissible at trial, and (3)
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“[L.H.] did not want to get in trouble with her roommate and friend, 

[Tomassini], who explicitly instructed [L.H.] not to pursue [] Lampe at the 

start of the night,” Appellant’s Brief, at 30 n.2; (2) “[L.H.] was upset about 

being ignored by John Putsch that night and found comfort in [Lampe],” id.; 

and (3) “[L.H.] used the allegation of assault to elicit responses from John 

Putsch[,] who otherwise ignored her.”11 Id. Lampe concludes that his 

proposed evidence is admissible under the exception to the Rape Shield Law 

for evidence of the victim’s bias and fabrication, pursuant to our decisions in 

Commonwealth v. Palmore, 195 A.3d 291 (Pa. Super. 2018), 

Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992), and 

Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985).

Here, the trial court’s Rape Shield ruling was made in response to the 

Commonwealth’s motion to exclude, on the second day of trial.12 Prior to 

____________________________________________

whether the evidence which the accused wishes to introduce

at trial is more probative than prejudicial.

Commonwealth v. Palmore, 195 A.3d 291, 295 (Pa. Super. 2018) (some 

internal citations omitted).

11 John Putsch, a neighbor living in an apartment adjacent to L.H.’s, had a 

non-exclusive “physical” relationship with L.H. at the time of the assault. N.T. 

Jury Trial, 10/8/18, at 27; N.T. Jury Trial, 10/9/18, at 257.

12 The Commonwealth explained why it made the motion:

I want to note for the record, the basis for when I asked the 

[c]ourt to give the instruction you did[] is that the statements I 

was provided by defense yesterday[,] pursuant to my discovery 

request, turned over multiple statements wherein they specifically 
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Myers and Tomassini testifying, the court warned them, under threat of 

contempt, not to testify regarding their “opinion about the character of 

another witness.” N.T. Jury Trial, 10/9/18, at 145. The court explained, “For 

example, Ms. Tomassini, you might have an opinion about [‘]I warned [L.H.]

not to sleep with [Lampe] that night because [of] my opinion of [L.H.] or past 

dealings with [L.H.’] I don’t want to hear anything like that. Do you 

understand that?” Id. at 146. Both Myers and Tomassini answered in the 

affirmative. Id. The court concluded, “Because a blurt out like that[] might 

result in a mistrial, and this case has been waiting for two-and-a-half years. 

That would not be fair to [] Lampe, and would not be fair to [L.H.] . . . You 

could possibly go on contempt citations on either one.” Id.

Lampe’s counsel then objected, and restated his position from an earlier 

sidebar conversation for the record:

In this case, we have a situation where both [] Hughes and [] 

Tomassini explicitly say to [L.H.]: [“]Do not hook up with 

[Lampe].[”] Their reasoning for that when I asked the question, 

not their excuse, [Tomassini’s] reasoning for that when I asked 

the question is [“]I know [L.H.] I know that she would be 

attracted to [Lampe].[”] Now, I don’t think that this is barred by 

[section] 3104 because it says 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 to the rules of evidence.

Id. at 147. The court then replied to counsel: 

____________________________________________

call [L.H.] a whore[,] and they also try to reference particular 

incidents, which is what led to that request[.]

N.T. Jury Trial, 10/9/18, at 149.
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[W]e already have on the record, alleged victim thinks defendant 

is hot or attractive. Then we have [Tomassini] said stay away 

from him, basically, and [L.H.] said I will. So I mean we have that 

in the record that there’s a concern from [Tomassini] that [L.H.]

might wind up with [Tomassini’s], you know, part-time boyfriend 

or friend with benefits [(Lampe)]. So that’s already in the record. 

My concern is starting to get into anything where you start to 

venture opinions about the sleeping habits of anybody, whether 

the defendant or victim, because it’s [] character evidence.

Id. at 148.

Here, we note that Lampe never filed a written motion and offer of proof

in the trial court.

13

 See 18 Pa.C.S.A. § 3104(b). “A defendant who proposes 

____________________________________________

13 In Lampe’s reply brief, he argues that he was misled at trial by the 

Commonwealth:

The procedural posture of the Rape Shield Law issue started on 

[d]ay 1 of trial when the [d]efense described on the record a 

written motion pursuant to 18 Pa.C.S.A. § 3104 it intended 

to file to ensure the theory of the defense would be admissible. 

As the Commonwealth reviewed the [d]efense motion and had no 

objection, the [d]efense and Commonwealth entered into an 

agreement as to the admissibility of this evidence.

On the second day of trial, the Commonwealth reneged on that 

agreement and asked the trial court to make a ruling to preclude 

that evidence pursuant to Rape Shield Law, and to instruct 

exculpatory witnesses [] Myers and [] Tomassini outside of the 

presence of the jury about limitations of their testimony before 

they testified. The [d]efense objected. The effect of the 

Commonwealth’s reneging, and the trial judge’s sanction and 

implementation of its ruling by admonishing (and intimidating) 

witnesses [Myers] and [Tomassini], eviscerated their testimony 

before the jury and denied [] Lampe a fair trial.

Appellant’s Reply Brief, at 8-9 (emphasis added; internal citations omitted). 

Our review of the record reveals that, on the first day of trial, Lampe’s counsel 

informed the court that “[The Commonwealth attorney] and I have discussed 

some issues regarding Rape Shield. We’re in agreement. We had prepared a 
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to offer evidence of the alleged victim’s past sexual conduct must file a 

written motion and make a specific offer of proof at the time of trial.” 

Commonwealth v. Beltz, 829 A.2d 680, 684 (Pa. Super. 2003) (quoting 

Commonwealth v. Kunkle, 623 A.2d 336, 339 (Pa. Super. 1993)) (emphasis 

added). Because Lampe did not file a written motion pursuant to section 

3104, but only made an oral objection, we cannot review this claim. See also 

____________________________________________

motion. We sent it to [the Commonwealth]. [The Commonwealth] doesn’t 

agree with some of the characterization of the testimony, but [] agrees it’s 

not Rape Shield[.]” N.T. Voir Dire and Motions, 10/8/18, at 16. The court 

then asked for clarification whether Lampe’s intention was to file a written 

motion, “You were going to file and you both agreed to that?” Id. at 17. 

Lampe’s counsel answered in the affirmative. Id. 

Here, defense counsel understood the procedure for filing a written motion, 

apparently had already drafted a written motion at the time of the above onthe-record conversation, and, informed the court that Lampe would file the 

written motion. Nothing prevented Lampe from filing that written motion. In 

fact, he was required to do so to preserve his claim. See Eck, supra at 1254 

(citing Commonwealth v. Johnson, 566 A.2d 1197 (Pa. Super. 1989) (en 

banc) (balancing determination between probative value and unfair prejudice, 

regarding defendant’s proffered evidence of fabrication, is made by trial court 

at in camera hearing similar to that outlined in 18 Pa.C.S.A. 3104(b)); see 

also Palomar, supra (“The trial court must engage in a four-part inquiry if a

defendant seeks admission of a victim’s past sexual conduct under . . . a

constitutional exception to the Rape Shield Law. After a defendant

provides notice that he or she wishes to introduce such

evidence, see 18 Pa.C.S.A. § 3104(b)[,]”) (emphasis added). Lampe’s claim

that the Commonwealth “reneged on th[e] agreement [between the parties

as to the admissibility of Lampe’s proposed evidence],” see Appellant’s Reply

Brief, at 8-9, even if true, is not enough to overcome the requirement that he

properly preserve the issue at trial. See Pa.R.A.P. 302(a) (providing that 

issues not raised before trial court are waived and may not be raised for first 

time on appeal); see also Commonwealth v. Burns, 988 A.2d 684, 691

(Pa. Super. 2009) (“The process begins with the defendant submitting a

specific proffer [] of exactly what evidence he or she seeks to admit and

precisely why it is relevant[.] This procedure forces the defendant to

frame the precise issues and interests involved[.]”)(emphasis added).
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Commonwealth v. Burns, 988 A.2d 684, 690-91 (Pa. Super. 2009) (failure 

to make written motion bars review of decision at trial to exclude).

Next, Lampe claims that the trial court erred and “violated due process 

of law” when it “admonished” Myers and Tomassini, prior to their testifying, 

as set forth above. Appellant’s Brief, at 18. Lampe notes that the trial court 

never warned any of the other witnesses about their testimony prior to 

testifying. Id. at 20. Lampe concludes that the

pre-testimonial admonishment of [Tomassini] and [Myers], at the 

time young college students who had never before been in a 

courtroom, preemptively tainted their credibility by limiting and 

chilling their testimony under a guise of improper and 

unconstitutional [R]ape [S]hield rulings. With a looming threat of 

contempt, the trial court’s actions . . . undercut the truth of 

[Tomassini’s] and [Myers’] testimony, provoked hesitation in their 

responses before the jury, and allowed the Commonwealth to 

fashion a false narrative, prompting the jury to discredit their 

sanitized testimony altogether. 

Id. at 21.

Our standard of review is as follows:

When ruling on a trial court’s decision to grant or deny a motion in

limine, we apply an evidentiary abuse of discretion standard of

review. The admission of evidence is committed to the sound

discretion of the trial court, and a trial court’s ruling regarding the

admission of evidence will not be disturbed on appeal unless that

ruling reflects manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (internal 

citations and quotation marks omitted).

Here, the trial court warned Myers and Tomassini not to testify regarding 

their “opinion about the character of another witness.” N.T. Jury Trial, 
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10/9/18, at 145. This warning was made in response to the Commonwealth’s 

request, which was based on the Commonwealth’s representation that there 

were “multiple statements wherein [Tomassini and Myers] specifically call 

[L.H.] a whore[,] and they also try to reference particular incidents[.]” Id. at 

149. The trial court evidently relied on the Rape Shield Law, despite Lampe’s 

failure to file any written motion under section 3104(b).14

We have previously discussed the purpose behind the enactment of 

Pennsylvania’s Rape Shield Law:

Rape shield laws in general are legislative recognitions of the

minimal probative value of a complainant’s sexual history and are

____________________________________________

14 The trial court’s Rule 1925(a) opinion addresses this issue, along with 

several other Rape Shield issues raised by Lampe, collectively, under a single 

heading. See Trial Court Opinion, 12/16/19, at 5-8. The trial court explained 

its Rape Shield rulings as follows:

In this case, [Lampe] sought to admit evidence related to [L.H.’s]

promiscuity. Specifically, the defense sought to introduce 

testimony from [] Myers and [] Tomassini that [L.H.] “was the 

type of girl they did not want [Lampe] engaging with.” See

Appellant’s Motion for Judgment of Acquittal, [at] 7. [] Tomassini 

and [] Myers think [L.H.] “sleeps around” and refer to her as a 

“whore.” N.T. [Jury] 10/9/18, [at] 147-49.

* * *

In this case, the court finds that the testimony [Lampe] wanted 

to introduce is mere conjecture about “the type of girl” [L.H.] was. 

This is exactly the type of evidence the Rape Shield Law is 

intended to preclude. In addition, this type of testimony was 

clearly more prejudicial than probative. Thus, the court properly 

applied the Rape Shield Law and ruled that the witnesses were not 

permitted to testify about [L.H.’s] character in this way.

Trial Court Opinion, 12/16/19, at 6-7. 
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designed to prohibit the travesty of presenting a noisome stream

of defense witnesses testifying to the sexual propensities of the

complaining witness. Pennsylvania designed its statute to rectify

these abuses. Our Supreme Court has explained that the specific

purpose of the Pennsylvania Rape Shield Law is to prevent a

sexual assault trial from degenerating into an attack upon the

collateral issue of the complainant’s reputation rather than

focusing on the relevant legal issues and the question of whether

the events alleged by the complainant against the defendant

actually occurred.

Commonwealth v. Jones, 826 A.2d 900, 908 (Pa. Super. 2003) (internal 

citations and quotation marks omitted). 

Here, the trial court was clearly concerned with this exact type of attack 

on collateral issues. See Jones, supra. After warning Myers and Tomassini, 

the trial court stated, “My concern is . . . where you start to venture opinions 

about the sleeping habits of anybody, whether the defendant or victim, 

because it’s character evidence.” N.T. Jury Trial, 10/9/18, at 148. The court 

concluded:

I have not been party to any of [the references to L.H.’s character

just noted by the Commonwealth.] I saw a glimpse of that in prior 

exhibits in the case. . . . It’s a tragic situation all the way around, 

but I don’t want to open it up to character assassination. 

That’s the whole point of the Rape Shield Act.”

Id. at 149 (emphasis added). We find no abuse of discretion under these 

circumstances. See Minich, supra. See also Kunkle, supra at 340

(defendant’s oral motion during trial, rather than written motion and specific 

offer of proof, was inadequate, and there was no abuse of discretion by trial 

court when it barred evidence pertaining to prior sexual assault of victim).
J-A15016-20

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Next, Lampe claims that the trial court erred in instructing the jury that 

intoxication is not a defense. Lampe points out that “intoxication was never 

raised as a defense, and, as it is not a jury charge available for offenses aside 

from first[-]degree murder, the trial court improperly included, at the 

Commonwealth's request, ‘Voluntary Intoxication or Drugged Condition No 

Defense’ as an instruction in this case.” Appellant’s Brief, at 53. Lampe 

argues that the instruction “erroneously misled the jury into believing [] 

Lampe was not allowed to be intoxicated but [L.H.] was, and this error fed the 

Commonwealth’s theory that intoxication caused [] Lampe to act out of 

character by raping another person.” Id.

Our standard of review for a challenge to a trial court’s jury charge is 

well-settled:

When evaluating jury instructions, the charge must be read as a

whole to determine whether it was fair or prejudicial. The trial 

court has broad discretion in phrasing its instructions, and may 

choose its own wording so long as the law is clearly, adequately, 

and accurately presented to the jury for its consideration.

Commonwealth v. Stokes, 615 A.2d 704, 708 (Pa. 1992) (quoting 

Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990)).

We have previously reviewed a similar situation where the trial court 

instructed the jury that voluntary intoxication is not a defense to a crime other 

than first-degree murder. In Commonwealth v. Graham, 576 A.2d 371 (Pa. 

Super. 1990), the trial court instructed the jury that voluntary intoxication 

was not a defense to aggravated assault. Id. at 375. In that case, we found 

no abuse of discretion because the appellant conceded he drank a large 
J-A15016-20

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quantity of alcohol, the prosecution made an issue of his intoxication during 

cross-examination, and the jury asked a question about the definition of 

intent. Id.

Here, Lampe concedes that he drank so much alcohol that he does not 

remember what happened. See Appellant’s Brief, at 45-46. In addition, the 

prosecution made an issue of Lampe’s intoxication through the crossexamination of Lampe’s expert witness on alcohol-induced blackouts, Dr. Elliot 

Atkins. See N.T. Jury Trial, 10/11/18, at 82-85. Moreover, though not raised 

as a defense, one of Lampe’s theories of the case is that he had drunken,

consensual sex with L.H. See N.T. Jury Trial, 10/11/18, at 153 (in closing 

argument, Lampe’s trial counsel stated to the jury “so if [Tomassini] hears the 

sounds of people having sex, and if she hears [L.H.] moaning in a pleasurable 

way, and if [Myers] hears [L.H.] say [‘Y]es Tyler,[’] then [L.H.] was not 

unconscious.”) We discern no abuse of discretion under these circumstances. 

See Stokes, supra. See also Graham, supra at 375 (trial court has power 

to decide whether additional information not requested by jury is necessary 

to assist jury in understanding issue involved).

Next, Lampe claims the trial court erred by failing to instruct the jury 

that it could adjourn for the evening before rendering a verdict. Lampe argues 

that this led to a rushed and coerced verdict, which was rendered at 10:30 

p.m. See Appellant’s Brief, at 57. Lampe also claims that “[t]he week after 

trial, [j]uror #9 came into contact with [d]efense [c]ounsel through her 

husband and relayed to [d]efense [c]ounsel that she and the other jurors were 
J-A15016-20

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unaware they could go home that evening without first rendering a verdict.” 

Appellant’s Brief, at 57. In further support of his claim, Lampe states that 

“the jury instructions left little room for interpretation. The jury was to eat 

dinner and schedule[d] to stay the night. . . . Alternate jurors were told they 

had the ability to watch the Eagles game that night as the others deliberated.” 

Id. (internal citations omitted).

Here, the Commonwealth argues that Lampe failed to preserve this 

issue since he did not object when given the chance to do so. We agree. 

Specifically, at trial, while the jury was present, the court stated its “game

plan” for the final stages of the trial:

THE COURT: Okay, everybody have a seat. Thank you, ladies 

and gentlemen. I always like to clue you in on what’s going on. 

This is the game plan. We’re going to be ready to do closings 

and charge and give you the case to deliberate. We will do that. 

We will have the closings at three o’clock. First, defense, then the 

Commonwealth. I will take a break. Then give you the jury 

charge. What I want you to do is because you have been patient,

between now and [] three, we will give you menus from Carlino’s 

so that you can order dinner so we can actually have a minute. 

When I finish, you will have food sitting there so you have a clear 

head and you can start deliberating. Okay, is that okay with 

everybody, with that schedule to stay tonight? Anybody 

have a problem with that[?] So, that’s the game plan. We 

can get the case to you today. The attorneys have been working 

diligently to move the case along. I will give you a little time to 

get your thoughts together for what they want to do by three. You 

can order now. At three, we will start the closings; okay. Thank 

you, see you then. Again, keep an open mind. You have not 

heard all the evidence.
J-A15016-20

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N.T. Jury Trial, 10/11/18, at 136 (emphasis added). Lampe argues that he 

preserved this issue at trial, as evidenced at the post-verdict motion hearing 

when the following on-the-record conversation took place:

[Lampe’s Attorney]: I want to make sure the record is complete. 

The [c]ourt gave us the opportunity Thursday afternoon to decide 

whether we wanted to close on Thursday afternoon or come back 

Friday and close. We agreed to close. I then requested that the 

[c]ourt close, that you charge the jury and then send them home 

and bring them back the next morning to begin deliberations.

THE COURT: Frankly, I don’t recall that part. I said no I would 

rather have them—

[Lampe’s Attorney]: You said: [‘]No, I’m not doing that.[’]

THE COURT: Okay, I’m glad you cleared up the record; fine.

N.T. Post-Verdict Motions Hearing, 12/5/18, at 28.

“[I]t is well established that absent a contemporaneous objection, the 

issue is not properly preserved on appeal.” Commonwealth v. MelendezRodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004); see Pa.R.A.P. 302(a)

(providing that issues not raised before trial court are waived and may not be 

raised for first time on appeal).

Only issues that are properly raised and preserved in the trial 

court may be considered on appeal. Pa.R.A.P.

302(a). Issues raised before or during trial are 

properly preserved for appeal. Pa.R.Crim.P. 720(B)(1)(c). So 

are issues raised in a timely optional post-sentence motion, 

provided those issues were properly preserved at the 

appropriate point in the proceedings. Pa.R.Crim.P. 720(B). 

For example, a criminal defendant could not assert a claim 

in a post-sentence motion for a new trial that evidence was 

erroneously admitted during his trial if he hadn’t lodged an 

objection during the trial when the evidence was admitted. 

Failure to object results in a waiver of the claim.
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Id. at 1288-89 (quoting Commonwealth v. Kohan, 825 A.2d 702, 705-06 

(Pa. Super. 2003)) (emphasis added). 

Here, the court offered its “game plan” and then gave Lampe an 

opportunity to object. See N.T. Jury Trial, 10/11/18, at 136. Lampe did not 

object contemporaneously. See Melendez-Rodriguez, supra. Instead, he 

waited until the post-sentence motion hearing, which was conducted several 

weeks later, to attempt to amend the record and insert an objection. See

N.T. Post-Verdict Motions Hearing, 12/5/18, at 28. Because this issue was 

not properly preserved at trial via contemporaneous objection, we cannot 

review this claim. See Melendez-Rodriguez, supra.

Finally, Lampe claims that the trial court erred when it denied his motion 

for a new trial based on evidence of juror misconduct. In the alternative, 

Lampe claims that the evidence of juror misconduct entitles him to a hearing 

to develop and explore the claim further. Specifically, Lampe points to a letter 

that juror #15 wrote to the court after the trial. In his letter to the court,

juror #15 identified statements made by other jurors in the courthouse 

hallways prior to deliberations—though he did not know exactly who made the 

statements, or who heard them—including, “Why didn’t they let [Lampe] take 

the stand?” and “In today’s day and age, like it or not, guys are guilty first.” 

Appellant’s Brief, at 58. Lampe further argues that 

[t]he reported comments reveal an outside influence improperly 

bearing on at least one member of the jury. This trial occurred 

the week following the United States Senate broadcasted hearing 

involving testimony of [Dr.] Christine Blasey Ford and thennominee Supreme Court Justice Brett Kavanaugh. The tension 
J-A15016-20

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from this event in the midst of the #metoo and #TimesUp! 

movement was palpable throughout trial, which concern was 

repeatedly RAISED by the [d]efense.

Id. at 59 (emphasis in original). 

We review Lampe’s motion for a new trial under the following standard:

The decision to grant or deny a motion for mistrial is within the

sound discretion of the trial court and will not be reversed absent

a flagrant abuse of that discretion. A mistrial is required only

when an incident is of such nature that its unavoidable effect is to

deprive the defendant of a fair trial. A mistrial is not warranted

when the event at trial which is alleged to have caused the

prejudice to the defendant is of a speculative nature.

Commonwealth v. La, 640 A.2d 1336, 1347 (Pa. Super. 1994) (internal 

citations omitted).

Here, during the jury charge, the court properly instructed the jury to

consider only the evidence admitted at trial. See N.T. Jury Trial, 10/11/18, 

at 188 (“In determining the facts, you must consider only the evidence that 

has been presented to you in the courtroom and the logical inferences that 

can be drawn from that evidence. You are not to guess, speculate or rely on 

matters that are not in evidence.”). Nothing related to the Supreme Court 

confirmation hearings for then-nominee Brett Kavanaugh was admitted into 

evidence. Similarly, all of the issues raised by juror #15 were matters not in 

evidence. See Letter from J. A. “Jay” Janson, 10/11/18, at 1-4 (raising 

concern regarding: (1) comments made by jurors in hallway, though he does 

not know who made them; (2) his subjective perception that deliberations 

should have lasted longer; (3) his observations of jurors crying upon reading 

the verdict; (4) his perception that the defense was not allowed to adequately 
J-A15016-20

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probe the true meaning behind a text message; (5) his perception that photos 

introduced by the Commonwealth at trial were misleading; (6) his 

independent research that “the moon that night was a waxing gibbous 

(~69%) and set at 03:33—meaning it would have been a very dark sky even 

a few hours prior to the alleged incident corroborating everyone’s testimony 

in the room that it was ‘very dark’”; (7) his perception of various 

inconsistencies in the evidence; and (8) his independent research of Hughes’ 

and Tomassini’s social media accounts). Any possible improper reliance by 

the jurors on matters not in evidence was cured by the court’s jury charge. 

See Commonwealth v. Williams, 381 A.2d 1285, 1291 (Pa. Super. 1977)

(reversible error can be cured by trial court’s prompt and adequate cautionary 

instruction). Moreover, jurors are presumed to follow the court’s instructions. 

See also Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992) (“The 

presumption in our law is that the jury has followed instructions.”). Therefore, 

the trial court did not abuse its discretion in declining to grant a new trial. 

See La, supra.

Lampe claims that he is entitled to a hearing to further explore this

alleged juror error. We disagree. A juror’s competency to testify as a witness

regarding the validity of a verdict is governed by Pa.R.E. 606, which states:

Upon an inquiry into the validity of a verdict, . . . a juror may 

not testify as to any matter or statement occurring during the 

course of the jury’s deliberations or to the effect of anything upon 

that or any other juror’s mind or emotions in reaching a decision 

upon the verdict or concerning the juror’s mental processes in 

connection therewith, and a juror’s affidavit or evidence of any 

statement by the juror about any of these subjects may not be 
J-A15016-20

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received. However, a juror may testify concerning whether

prejudicial facts not of record, and beyond common knowledge

and experience, were improperly brought to the jury’s attention

or whether any outside influence was improperly brought to bear

upon any juror.

Commonwealth v. Steele, 961 A.2d 786, 808 (Pa. 2008); Pa.R.E. 606(b). 

Our Supreme Court went on to explain Rule 606’s applicability:

This rule is often referred to as the “no impeachment rule.” We

recognized in Carter [v. U.S. Steel Corp. 604 A.2 1010 (Pa.

1992)] that the strict “no impeachment” rule provides a narrow

exception for “post[-]trial testimony of extraneous influences

which might have affected [or prejudiced] the jury during

deliberations.” Under this exception, pursuant to Carter, the

juror may testify only as to the existence of the outside influence,

but not as to the effect this outside influence may have had on

deliberations. Under no circumstances may jurors testify 

regarding their subjective reasoning processes.

. . . The exception only applies to outside influences, not

statements made by the jurors themselves.

Steele, supra at 808 (emphasis and brackets around “or prejudiced” in 

original).

Here, Lampe relies upon juror #15’s letter to the court detailing that 

juror’s concerns with the verdict, and juror #9’s statement to defense counsel 

that she and other jurors were unaware they could go home without first 

rendering a verdict. See Appellant’s Brief, at 58-60. Notably, juror #15 was 

an alternate juror, and was not present in the deliberation room during jury 

deliberations. In fact, much of the juror’s letter, and Lampe’s argument,

focuses on the alleged statements made by the jurors themselves, which 

testimony is not eligible for the Carter exception to the “no impeachment 

rule.” See Steele, supra. Moreover, juror #9’s proposed testimony is not
J-A15016-20

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limited to outside influences, see id., as that juror proposed to testify that 

she and the other jurors were “unaware they could go home that evening 

without first rendering a verdict.” Appellant’s Brief, at 57. This testimony

clearly delves into the jury’s deliberations, the other jurors’ minds or emotions 

in reaching their decision upon the verdict, and the jurors’ mental processes 

in connection with the deliberations. See Steele, supra. No such testimony 

is permitted; therefore, the court did not abuse its discretion in declining to 

grant a hearing to explore this issue further. See id.; see also Pa.R.E. 

606(b).

Judgment of sentence affirmed. 

Judge Strassburger joins this Memorandum.

Judge King did not participate in the consideration or decision of this 

matter.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/20