J

- A15016

- 20

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER HOGAN LAMPE

Appellant :

:

:

:

:

:

:

:

: 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.: F iled: October 22, 2020

Tyler Hogan Lampe appeals from the judgment of sentence

, entered in

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

jury for one count each of rape of an u nconscious person 1 and sexual assault, 2

and two counts each of aggravated indecent assault 3 and indecent assault

. 4

Upon careful review, we affirm.

The trial court set forth th e 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).J

- A15016

- 20

- 2

-

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 part y, 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)

som eone, 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.J

- A15016

- 20

- 3

-

On March 18, 2016, [L.H.] reported the in cident 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 natura l

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

Lam pe 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 wit h Pa.R.A.P. 1925. On appeal, Lampe raises

the f ollowing 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

f or 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?J

- A15016

- 20

- 4

-

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

- 4 5. We disagree . T here was sufficient evidence to

su pport each of Lampe’s convictions.

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

is well

- settled:

In examining a challenge to the sufficiency of the evidence , we must deter mine whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth, there is

sufficient evidence to enable the fact [

- ] fin der to find every

element of the crime beyond a reasonable doubt. The Commonwealth may sustain i ts 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 in compatible 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).

La mpe claims that the Commonwealth failed to establish the offenses

of rape, aggravated indecent assault, and indecent assault of an unconsciousJ

- A15016

- 20

- 5

-

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

testimon y that L.H. was makin g 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

_________________ __________ ______ ____ _______

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 “w e get up to the door of [L.H.] and Tyler’s room where you can still hear the noises and then I’m lik e [,] 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 h e “interrupted [Lampe] having wha t [Myers] thought at the time was consensual se x.” 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 n oises.” Id. On cross

- examination, Tomassini testified that she could hear noises coming from L.H., but not from Lampe. Id. at 310

- 11.J

- A15016

- 20

- 6

-

[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

interpre ting section 3121(3) of the Crimes Code in Commonwealth v. Erney

,

698 A.2d 56 (Pa. 1997). In that case, the appellant argued tha t 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 offe red 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 s he 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, therefor e, 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, an d 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.

_________________ __________ ______ ____ _______

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.J

- A15016

- 20

- 7

-

Id. The Court concluded that “the evidence support[ed] the findings that the

victim was intermittently unc onscious 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 w as so intoxicated she was “blacking in and out” ;

victi m 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 t he 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.J

- A15016

- 20

- 8

-

Id. at 4 8. 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 b ack 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, l ike 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 h er 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, t he Commonwealth

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

meaning of the relevant statutes ; c onsequently, 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

_________________ __________ ______ ____ _______

7 Each of these statutes require s proof that defendant acted “ without the compl a inant’s consent

. ” (emphasis added).J

- A15016

- 20

- 9

-

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 suffic ient 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

— remo ved 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 perpetrato r because [L.H.] recounted intermittent facts about the encounter, but not those specifically concerning her own behavior, and stated after

the

- 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 complai nant is unconscious and unable to form consent, then the same principle applies to Mr. Lampe. A s he had absolutely no memory of this encounter, he too was unconsciousJ

- A15016

- 20

- 10

-

Next, Lampe raises a challeng e 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 o f

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

credibili ty of the witnesses. The trial court will award a new trial

_________________ __________ ______ ____ _______

and incapable of forming consent and was a victim of ra pe on the same basis as [L.H.].

A ppellant’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 t he weight of the

evidence.J

- A15016

- 20

- 11

-

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

tria l 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 cla im 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 Commo nwealth’ 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 co uld 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 verdi ct 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 o f 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 fin der of fact, which is free to believe all,

part, or none of the evidence, and to assess the credibility of the witnesses.”).J

- A15016

- 20

- 12

-

After our review of the record, we cannot say that the jury’s verdict was so

contrary to the evidence , discussed supra , as to shoc k 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 t rial court’s R ape S hield 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

valu e 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 dou bt. 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.J

- A15016

- 20

- 13

-

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 r eview 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 S hield L aw 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 co nsent 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).J

- A15016

- 20

- 14

-

18 Pa.C.S.A. § § 3104(a) ; (b) (emphasis added)

. Additionally, we have

pre viously 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 pos sible reasons to fabricate the rape claim: (1)

_________________ __________ ______ ____ _______

10 We ha ve 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) “A lthough 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 defend ant
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 tha t 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 speculat ion 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 admi tted 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)J

- A15016

- 20

- 15

-

“[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

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

Here, the trial court’s R ape S hield 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

inte rnal 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, tur ned over multiple statements wherein they specificallyJ

- A15016

- 20

- 16

-

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. Tomassin i, 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 Toma ssini 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 q uestion 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 all eged 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.J

- A15016

- 20

- 17

-

[W]e already have on the record, alleged victim thinks defendant

is hot or attractive. Then we have [Tomassini] s aid 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, w e 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 R ape S hield L aw 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 defe nse 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 tha t agreement and asked the trial court to make a ruling to preclude that evidence pursuant to R ape S hield L aw, and to instruct exculpatory witnesses [] Myers and [] Tomassini outside of the presence of the jury about limitations of their testimony before

th ey 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 j ury 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, o n the first day of trial, Lampe’s counsel informed the court that “[The Commonwealth attorney] and I have discussed some issues regarding R ape S hield. We’re in agreement. We had prepared aJ

- A15016

- 20

- 18

-

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 purs uant 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] do esn’t agree with some of the characterization of the testimony, but [] agrees it’s

not R ape S hield [

. ] ” 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 go ing 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 on

the

- 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 defend ant seeks admission of a victim’ s past sexual conduct under

. . . a constitutional exception to the Rape S hield 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 r aised for first time on appeal); s ee also Commonwealth v. Burns , 988 A.2d 684, 6 91 (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 w hy it is relevant[.] This procedure forces the defendant to
frame the precise issues and interests involved [.]” )(emphasis added).J

- A15016

- 20

- 19

-

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 tha t 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 th eir 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 narrati ve, 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 r egarding

their “opinion about the character of another witness.” N.T. Jury Trial,J

- A15016

- 20

- 20

-

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 writt en motion under section 3104(b). 14

We have previously discussed the purpose behind the enactment of

Pennsylvania’s R ape S hield L aw:

Rape shield laws in general are legislative recognitions of the

minimal probative value of a complainant’s sexual history an d are

_________________ __________ ______ ____ _______

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

several other R ape S hield issues raised by Lampe, collectively, under a single heading. See Trial Court Opinion, 12/16/19, at 5

- 8. The trial court explained

its R ape S hield 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 wer e not permitted to testify about [L.H.’s] character in this way.

Trial Court Opinion, 12/16/19, at 6

- 7.J

- A15016

- 20

- 21

-

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 w hether

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, t he trial court was clearly concerned with this exact type of attack

on collateral issue s

. 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 i t’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 t he Commonwealth .] I saw a glimpse of that in prior

exhibits in the case. . . . It’s a t ragic 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. S ee 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 vict im).J

- A15016

- 20

- 22

-

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 [

- ] deg ree 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

instruct ed the jury that voluntary intoxicat ion 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 largeJ

- A15016

- 20

- 23

-

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 cross

examination of Lampe’s expe rt 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, on e 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 he ars [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 render ing 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

h usband and relayed to [d]efense [c]ounsel that she and the other jurors wereJ

- A15016

- 20

- 24

-

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

“ t he jury instructions l eft 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).

H ere, 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? Anyb ody 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

- 25

-

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

. La mpe 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 w anted 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: Fra nkly, 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. Melendez

Rodriguez , 856 A.2d 1278, 1287 (Pa. Super. 2004); see Pa.R.A.P. 302(a)

(providing that issues not raised before tri al 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 appe al. 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.J

- A15016

- 20

- 26

-

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 contem poraneously. See Melendez

- Rodrigue z , 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 c laim further . Specifically, Lampe po ints 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 k now 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 comme nts 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 then

nominee Supreme Court Ju stice Brett Kavanaugh. The tensionJ

- A15016

- 20

- 27

-

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 ne w 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 n ot in evidence.”)

. Nothing related to the Supreme Court

confirmation hearings for then

- nominee Brett Kavanaugh was admitted into

evidence. Similarly, a ll 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 mad e 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 o f jurors crying upon reading

the verdict; (4) his perception that the defense was not allowed to adequatelyJ

- A15016

- 20

- 28

-

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

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

indepe ndent 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 Co mmonwealth 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 hear ing to further explore th is

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

n ot 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 beJ

- A15016

- 20

- 29

-

received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge

and e xperience, 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 j uror 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 La mpe’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 notJ

- A15016

- 20

- 30

-

limited to outside i nfluences

, 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 in to the jury’s deliberations, the o ther jurors’ minds or emotions

in reaching their decision upon the verdict

, and the juror s ’ mental p rocesses

in connection with the deliberations. See Steele

, supra

. N o 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 decisio n of this

matter.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1 0/22/20