December 13, 2016
CHARLES ALBERT MASSEY, III
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
Patrick M. Blanch (Zinicola, Blanch & Overand, PLLC, on
briefs), for appellant. 
Victoria Johnson, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Petty, O'Brien and Russell Argued at
G. RUSSELL, JR. JUDGE
Albert Massey, III, appellant, was convicted by a jury of
abduction with intent to defile in violation of Code §
18.2-48 and two counts of rape in violation of Code §
18.2-61. On appeal, he contends the trial court erred by: (1)
denying his motion for a new trial because the Commonwealth
failed to timely disclose exculpatory evidence; (2) not
finding certain police reports exculpatory; (3) admitting
into evidence the preliminary hearing testimony of the victim
during the Commonwealth's case-in-chief; and (4)
excluding a text message the victim sent to a friend on the
day of the preliminary hearing.
was arrested on September 4, 2013, for two counts of rape and
one count of simple abduction. The preliminary hearing was
held on November 1, 2013, in the Fairfax County Juvenile
& Domestic Relations District Court. The victim, P.E.,
testified that she previously had been engaged to appellant
and had lived with him for approximately nine months. They
broke off the engagement in April of 2013 after she was
released from a five-day involuntary stay in a rehabilitation
facility. Her time in the rehabilitation facility was the
result of the combined efforts of her father and the
appellant to place her there.
stated that appellant telephoned her late at night on
September 3, 2013, because he needed to talk to someone about
the difficult time he was having in coping with a sick
grandmother. She allowed him to visit her at her studio
apartment in Fairfax, and he arrived close to midnight. After
trying to console appellant, she asked him to leave because
it was late and she needed to be at work early the next
morning. Appellant did not want to go and indicated that he
would sleep on the couch. Initially, P.E. agreed, but she was
unable to sleep and felt uncomfortable with appellant being
in her apartment. Again, she asked him to leave, but he
testified that she opened the door for appellant to leave,
but he shut the door and dragged P.E. towards her bed. He
threw her onto her bed and raped her twice. At some point
during the night he struck her in the face and strangled her
until she "black[ed] out or nearly black[ed] out."
The next morning, appellant allowed P.E. to get dressed, but
did not permit her to go to work because of the bruising on
her face. He drove them to a house in Alexandria where they
used to live so that appellant could pack some of his
belongings for a trip to his home state of Mississippi.
Before leaving the house, appellant bound P.E.'s hands
and feet with clear packing tape, covered her in a blanket,
and placed her in the back seat of his car. Appellant
eventually removed the tape from P.E. and left her on a road
near her parents' home in Fairfax.
cross-examination, defense counsel asked P.E. several
questions that P.E. claimed she was unable to answer,
including the following:
[Appellant's Counsel]: Tell me, when was the first time
you had sex with him after you broke off the engagement?
[P.E.:] I don't recall.
[Appellant's Counsel]: Well, was it a matter of days[?]
Would you agree with that?
[P.E.:] I'm not sure.
admitted that, while intoxicated, she telephoned appellant
from a bar on June 13, 2013, and he took her home, yet she
did not remember whether she had sex with him on that
occasion. She also remembered that she was in a bar on July
13, 2013, and called appellant on that night. She stated that
"[i]t's possible" that she had sex with him
that evening. P.E. also called appellant from her
parents' house in July, and indicated that it's
"possible" she had sex with him at that time,
although she was too drunk to remember. P.E. was also
questioned about her stay with appellant in August:
[Appellant's Counsel]: Did you or did you not stay in his
for fifteen days out of the thirty days in August of this
[Appellant's Counsel]: Yes, and do you remember those
[P.E.:] Not particularly, no.
[Appellant's Counsel]: Why?
[P.E.:] I guess I just tried to block them out.
[Appellant's Counsel]: Well, was there drinking and sex
or all of those nights?
[P.E.:] Maybe some.
instances of lapses in memory included her inability to
remember if she exchanged text messages with appellant on
September 3, 2013, whether there was any discussion about who
used the condoms beside her bed, whether she remembered
throwing appellant's keys on September 3, and whether she
communicated with "Adam" on September 4.
response to P.E. stating that appellant "usually told my
dad that I had problems or issues, and that he was trying to
help me[, ]" counsel asked P.E., "Didn't
[appellant] and your father collaborate on that path to help
you?" P.E. replied "Yes."
P.E.'s response, the Commonwealth objected to the line of
questioning on the basis of relevance, and the court
sustained the objection. In response, appellant's counsel
stated "All right." At that time, he neither
presented an argument designed to overcome the objection nor
did he proffer questions he would have asked or answers he
expected to receive to any such questions but for the
court's ruling on the Commonwealth's objection.
district court certified all charges to the grand jury. The
grand jury returned four indictments. In addition to the
charges that were pending at the time of the preliminary
hearing, the grand jury indicted appellant for an additional
charge - abduction with the intent to defile in violation of
Code § 18.2-48.
died prior to trial. Appellant filed a motion in
limine to exclude P.E.'s preliminary hearing
testimony from his trial arguing that introduction of the
preliminary hearing transcript violated Rule 2:804(b)(1) and
appellant's Sixth Amendment right of confrontation.
Specifically, appellant argued in the motion that the
preliminary hearing transcript should not be read at trial
because "defense counsel was precluded during his
cross-examination from inquiring into several important
matters" and because "after the preliminary
hearing, through the course of discovery, the Commonwealth
produced to defense counsel numerous materials that
contradict [P.E.'s] testimony that could have been used
to contradict" her.
court allowed the transcript of P.E.'s testimony to be
read into evidence in its entirety. Thus, the jury heard
P.E.'s statements regarding a lack of memory and her
affirmative response to the question, "Didn't
[appellant] and your father collaborate on that path to help
Taylor, an acquaintance of appellant, testified at
appellant's jury trial that she spoke with appellant at
12:30 p.m. on September 4. Appellant told Taylor that he
thought he needed help. He told her that he and P.E. had
fought and that he "kind of made her have sex with
[him]." Taylor asked if he had sexually assaulted P.E.,
and his response was "Yes." He also told Taylor he
had bound P.E. with tape, wrapped her in a blanket, and
driven her to her father's home.
Commonwealth called Elizabeth Roach, a Sexual Assault Nurse
Examiner who works at INOVA Fairfax Hospital. Roach performed
a sexual assault examination on P.E. on September 4, 2013.
Roach testified in detail about the numerous bruises and
abrasions P.E. had over significant portions of her body. She
testified that her examination revealed a reddened area on
the hymen, indicating a fresh injury. She agreed that the
injury was consistent with a report of "forcible penile
vaginal penetration." Roach also testified regarding
P.E.'s report to her on the morning of September 4.
According to Roach, P.E. reported that, the previous night,
she had been in her apartment. Her ex-fiancée was
there. He was not allowing her to leave. She said he had
forcible penile vaginal penetration with her twice, on two
occasions. That he strangled her on several occasions. She -
he also suffocated her by putting his hand over her nose and
mouth, making it difficult for her to breathe. And on another
occasion, stuck a sheet into her mouth to make it difficult
for her to breathe, so that - she felt that it was so she
wouldn't scream. She said that her hands and her feet
were bound with the tape and that she was wrapped in a
blanket and put in the back seat of the car and removed.
also testified, without objection, that "post-traumatic
stress" causes victims of sexual assault to have memory
issues. Comparing memories of the sexual assault to a deck of
cards, Roach testified that "it takes [victims] a while
to retrieve all the cards. Sometimes they never retrieve them
in their lifetime; sometimes they may retrieve a card years
or months later. So they have a hard time . . . to tell a
story in a complete start to finish." Roach also stated
that post-traumatic stress can explain why a sexual assault
victim may give inconsistent accounts of the same event to
testified that he and P.E. fought on the night of September
3, 2013. They engaged in a mutual physical fight and then
engaged in consensual sex as a way to make up. Appellant
testified that, prior to the sexual activity, P.E. had asked
him to leave and opened the door to the apartment so that he
could leave. Appellant acknowledged refusing to leave and
closing the door. Furthermore, he claimed that P.E.
threatened to scream if he did not leave, began screaming
when he refused, and that he grabbed her and placed his hand
over her mouth, apparently for the purpose of muffling her
screams. He claimed to have done this in an effort to get her
to "calm down." Appellant admitted to hitting P.E.
in the past and binding her wrists and ankles on this
occasion. He also acknowledged that he told Taylor that he
"kind of made [P.E.] have sex with [him]."
the course of trial, multiple text messages that had been
sent by P.E. were introduced. Regarding her appearance at the
preliminary hearing, P.E. texted a friend that
appellant's "attorney was an idiot and when he cross
examined me I gave him nothing to work with . . . . It was
almost fun. I even questioned him when he was talking about
irrelevant info, but the judge got a little upset with me for
that[.]" Regarding her testimony, she texted another
I kinda wish you could've seen the way I handled the
cross examination with his retarded lawyer, I gave him
nothing. And it was awesome. . . . He was throwing all sorts
of stupid shit out at me about me being in a bar on August
13th and whatnot and when I respond with I don't recall
he couldn't do anything with it[.]
sought to introduce yet another text message P.E. sent to a
friend the morning of the preliminary hearing. In the text
message, which was marked as Defendant's Exhibit 14 for
identification, P.E. wrote "Is it sick that I'm
making myself look really good right now just to piss him
off?" Although appellant initially withdrew the exhibit
in response to the Commonwealth's objection, he
eventually changed course and sought its admission, arguing
that it showed animus against him and reflected a present
sense impression of P.E. shortly before her preliminary
hearing testimony. The Commonwealth objected on the grounds
that it was hearsay not within any exception. The trial court
refused to admit Defendant's Exhibit 14 into evidence on
the grounds that it was not relevant.
parties called Detective David Kroll of the Fairfax County
Police Department in their respective cases. Detective Kroll
was the member of the Major Crime Division, Adult Sex Unit,
who investigated the events. In the Commonwealth's case,
Detective Kroll testified regarding his investigation, his
interactions with P.E., and evidence that was collected as
part of the investigation. In appellant's case, Detective
Kroll was examined extensively regarding potential
inconsistencies in P.E.'s story. Of particular note,
Detective Kroll acknowledged that P.E. initially had claimed
to have been on the lease for appellant's residence but
later admitted she was not.
also introduced a nude photograph of P.E. that showed her
posed on a bed while holding a wine glass. The photograph was
taken some time prior to the events in question. The
Commonwealth objected to the relevance of the photograph.
Appellant noted that, during her preliminary hearing
testimony, P.E. had testified that she had never allowed
appellant to take nude photographs of her, and therefore, the
apparently posed picture called her credibility into
question. The trial court admitted the photograph into
the jury convicted appellant of two counts of rape and one
count of abduction with the intent to defile. On May 18, 2015,
appellant filed a motion to dismiss or, in the alternative,
to set aside the verdict alleging a violation of Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, he argued
that, prior to her preliminary hearing testimony, the
Commonwealth was in possession of information that could have
been used to attack P.E.'s credibility and that the
failure to disclose such information prior to the testimony
being given should have resulted in her preliminary hearing
testimony being excluded at trial. The trial court denied the
appeal, appellant raises nine assignments of error. Eight of
the assignments of error take issue with the decision of the
trial court to admit P.E.'s preliminary hearing testimony
into evidence at trial. The ninth assignment of error
challenges the trial court's exclusion of Defendant's
Admission of Preliminary Hearing Testimony at Trial
well established that, when a witness dies after testifying
at a preliminary hearing, the preliminary hearing testimony
may be read into evidence at trial so long as certain
safeguards have been met. As the Virginia Supreme Court has
the preliminary hearing testimony of a witness who is absent
at a subsequent criminal trial may be admitted into evidence
if the following conditions are satisfied: (1) that the
witness is presently unavailable; (2) that the prior
testimony of the witness was given under oath (or in a form
of affirmation that is legally sufficient); (3) that the
prior testimony was accurately recorded or that the person
who seeks to relate the testimony of the unavailable witness
can state the subject matter of the unavailable witness's
testimony with clarity and in detail; and (4) that the party
against whom the prior testimony is offered was present, and
represented by counsel, at the preliminary hearing and was
afforded the opportunity of cross-examination when the
witness testified at the preliminary hearing.
Longshore v. Commonwealth, 260 Va. 3, 3-4, 530
S.E.2d 146, 146 (2000); see also Va. R. Evid.
2:804(b)(1). Here, appellant does not challenge that the
preliminary hearing transcript is an accurate recitation of
P.E.'s prior testimony. He readily concedes that P.E.
testified under oath at the preliminary hearing, that her
death rendered P.E. unavailable at trial, and that his
counsel appeared at the preliminary hearing and
he argues that various circumstances combined to deny his
counsel the ability to conduct an effective
cross-examination of P.E. at the preliminary hearing. He
argues that his inability to conduct an effective
cross-examination denied him his Sixth Amendment right to
confront his accuser, and therefore, it was error for the
trial court to admit P.E.'s preliminary hearing testimony
at his trial.
appellant asserts eight assignments of error regarding the
admission of P.E.'s preliminary hearing testimony at
trial, the alleged errors can be divided into five
categories: (1) the cross-examination at the preliminary
hearing was defective because the Commonwealth failed to
timely disclose information it was required to disclose
pursuant to Brady, (2) the cross-examination at the
preliminary hearing was defective because potential
impeachment evidence that was not subject to disclosure under
Brady was discovered by the defense after the
preliminary hearing, (3) the cross-examination at the
preliminary hearing was defective because the judge at the
preliminary hearing improperly limited its scope, (4)
P.E.'s repeated failure to remember things during the
cross-examination at the preliminary hearing rendered her
"unavailable" for cross-examination, and (5) the
cross-examination at the preliminary hearing was defective
because the charges appellant faced changed after the
preliminary hearing. We address each contention in turn.
Alleged Brady Violations
argues that he was denied his right of confrontation because
the Commonwealth failed to disclose inconsistent statements,
one explicit and one implicit, made by P.E. that were in the
Commonwealth's possession and could have been used to
impeach P.E. Specifically, appellant notes that the
Commonwealth was aware that, during the investigation, P.E.
had claimed that she was on the lease for appellant's
residence, but later conceded she was not. Appellant also
argues that the Commonwealth was required to disclose that
P.E. told the officers investigating the current offenses
that appellant "was getting aggressive and holding [her]
arms or pushing" her during an incident in Alexandria on
June 5, 2013, but the Alexandria Police Department's
contact form regarding the June 5, 2013 incident indicated
that P.E. "stated that [appellant] has assaulted her in
the past but not tonight." Appellant argues that this
constitutes an inconsistent statement because her later
statement to investigators in Fairfax indicates an assault
took place on June 5, 2013.
Commonwealth argues that there was no Brady
violation because the statements were disclosed by the
Commonwealth more than a year prior to trial. Thus, the
Commonwealth asserts that its Brady obligation was
satisfied even though, because of P.E.'s intervening
death, appellant did not have the statements when he was in a
position to cross-examine P.E. Alternatively, the
Commonwealth argues that appellant has not demonstrated that
the statements were of such a quality or character that would
require reversal of the jury's verdict. Because we find
that, due to the nature of the statements, appellant has
failed to satisfy the elements necessary for a finding of a
Brady violation, we need not and do not address the
Commonwealth's argument that disclosure before trial but
after the relevant testimony was given at the preliminary
hearing was sufficient to satisfy any Brady
Brady violation occurs when the government fails to
disclose evidence materially favorable to the accused."
Youngblood v. West Virginia, 547 U.S. 867, 869
(2006). "Brady obligations extend not only to
exculpatory evidence, but also to impeachment
evidence[.]" Coley v. Commonwealth, 55 Va.App.
624, 630, 688 S.E.2d 288, 292 (2010). To establish a
Brady violation, a defendant must establish that:
a) The evidence not disclosed to the accused must be
favorable to the accused, either because it is exculpatory,
or because it may be used for impeachment; b) the evidence
not disclosed must have been withheld by the Commonwealth
either willfully or inadvertently; and c) the accused must
have been prejudiced.
Hicks v. Dir., Dep't of Corr., 289 Va. 288, 299,
768 S.E.2d 415, 420 (2015) (quoting Workman v.
Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374
argues that the identified inconsistent statements constitute
impeachment material, and thus, he satisfies the first
Brady element. It is true that, in general, a witness
may be impeached through the use of prior inconsistent
statements. See Va. R. Evid. 2:607(a)(vi) and 2:613.
However, the mere fact that prior to testifying, a witness
has made multiple statements that are inconsistent with each
other does not render such inconsistencies admissible in a
method for introducing extrinsic evidence regarding prior
inconsistent oral statements for the purpose of impeaching a
witness' testimony is set forth in Virginia Rule of
Evidence 2:613(a)(ii). In addition, the rule provides that
"[e]xtrinsic evidence of collateral statements is not
[T]he test as to whether a matter is material or collateral,
in the matter of impeachment of a witness, is whether . . .
the cross-examining party would be entitled to prove it in
support of his case. Therefore, when the circumstances [of
the other event] have no intimate connection with the main
fact; if they constitute no link in the chain of evidence . .
. they ought to be excluded. Evidence . . . which cannot
be used for any purpose other than for impeachment . . .
is certainly collateral to the main issue.
McGowan v. Commonwealth, 274 Va. 689, 695, 652
S.E.2d 103, 105-06 (2007) (emphasis added) (internal
quotation marks and citations omitted) (brackets in
this standard, the statements appellant contends that he was
denied the use of are clearly collateral. First, we note
that, although there is evidence that P.E. made statements
that were inconsistent with each other, none of the
pertinent statements identified by appellant as potential
Brady material are inconsistent with P.E.'s
preliminary hearing testimony. At the preliminary
hearing, P.E. did not testify as to who was on the lease of
appellant's residence or whether appellant assaulted her
on June 5, 2013. Furthermore, neither the identity of who was
on the lease of the Alexandria residence nor whether there
had been an assault on June 5, 2013, shed any light on the
question of whether or not appellant raped and abducted P.E.
in September 2013.
the relevant statements are merely collateral, appellant
could not have used them to impeach P.E. at the preliminary
hearing. As such, appellant has failed to establish that
"[t]he evidence not disclosed to the accused [was]
favorable to the accused . . . because it may [have been]
used for impeachment, " and therefore, has failed to
establish that the Commonwealth violated its obligations
under Brady. Workman, 272 Va. at 644, 636
S.E.2d at 374.
the statements could have been utilized in the examination of
P.E., appellant has not made the necessary showing of
prejudice required by Brady. To establish the
necessary prejudice, appellant must show that the statements
were material. For Brady purposes,
[e]vidence is material if there is a reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. However,
it is not necessary to demonstrate by a preponderance that
disclosure of the suppressed evidence would have resulted
ultimately in the defendant's acquittal. A conviction
must be reversed if the accused shows that the favorable
evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the
Coley, 55 Va.App. at 631, 688 S.E.2d at 292
(internal quotation marks and citations omitted). "The
question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence."
Hicks, 289 Va. at 299, 768 S.E.2d at 420 (internal
quotation marks and citations omitted).
the verdict is worthy of confidence. As described above, the
subject statements do not directly touch on appellant's
guilt or innocence of the crimes charged, but deal with
purely collateral matters that would not have been properly
admitted and are unlikely to have had any effect on the
jury's verdict if they had been admitted. The only
possible use of the statements was to call P.E.'s
credibility into question, something that appellant was able
to do through other means, including the introduction of
multiple text messages from P.E.
the record contains other evidence of appellant's guilt,
ranging from the testimony of Taylor and Roach to the
appellant's damning acknowledgements that he "kind
of made [P.E.] have sex with [him], " that he sexually
assaulted P.E., and that he bound P.E. with tape before
dropping her off near her parents' home.
we know that at least one of the statements would not have
changed the jury's ultimate conclusion because the jury
became aware of the statement through other means. Detective
Kroll testified at trial that P.E. initially had said she was
on the lease of the Alexandria residence only to admit later
she was not. In short, the record as a whole leaves little
doubt that the appellant not becoming aware of the statements
until after P.E.'s preliminary hearing testimony had no
effect on the outcome of the trial. Accordingly, appellant
has not established the requisite prejudice to make a
successful challenge under Brady.
Discovery of Non-Brady Impeachment Material after
the Preliminary Hearing
next challenges the admission of P.E.'s preliminary
hearing testimony at trial by arguing that he first learned
of other evidence that could have been used to impeach P.E.
only after she testified. For example, P.E. testified at the
preliminary hearing that appellant called her on the night of
the rapes. Appellant acknowledges this was true, but notes
that subsequently recovered phone records demonstrate that,
in addition to receiving a call from appellant that evening,
P.E. also called appellant. Additionally, appellant notes
that at the preliminary hearing P.E. testified that she did
not permit appellant to take nude photographs of her, but
eventually a nude photograph of P.E., taken by appellant, was
discovered that appears to show P.E. as a willing participant
from the manner in which she is posed. Although he received
at least some of this evidence from the Commonwealth,
appellant recognizes that it cannot form the basis of a
Brady violation because the Commonwealth did not
possess it at the time of the preliminary hearing and
produced it well before trial.
fact that additional information that might have been used in
the examination of a witness is discovered after the witness
testifies does not render the examination infirm. The need
for finality requires that witness testimony and trials
conclude and not be reopened for claims of newly discovered
evidence or potential impeachment material except under the
most limited of circumstances. Cf. Rule 1:1; Code
§ 19.2-327.10 et seq. (regarding proceedings
for challenging a conviction with non-biologic,
unlike cases where such materials are first discovered after
trial, the evidence at issue here was discovered prior to
trial, and thus, appellant had the opportunity to, and did in
fact, use the material. Appellant used both the phone records
and the photograph to raise substantial questions about
P.E.'s credibility. The after-discovered impeachment
material was placed before the jury, allowing the jury to
make a determination as to whether or not it raised a
reasonable doubt regarding the ultimate issues - rape and
abduction. The jury very well may have concluded
that P.E. was less than forthcoming about certain issues,
such as her participation in the nude photograph; however,
the jury determined that it believed P.E.'s testimony
regarding the rapes and the abduction. There is
nothing improper or inconsistent about such a conclusion.
See Bazemore v. Commonwealth, 42 Va.App. 203, 213,
590 S.E.2d 602, 607 (2004) (recognizing that the factfinder
is "free to believe or disbelieve, in part or in whole,
the testimony of any witness").
argues that his inability to utilize the information while
examining P.E. in front of the jury dictates a different
result. He argues that other means of using the impeachment
evidence are not a sufficient substitute for live
cross-examination, noting his "inability to
cross-examine [P.E.] about all of these inconsistencies and
elicit her corresponding reactions at trial. Merely pointing
out inconsistencies in her written statements does not
satisfy the right to confrontation." In short, appellant
argues that he had a right for the factfinder to see P.E.
squirm when confronted with the potential inconsistencies.
appellant were correct in this assertion, the use of prior
recorded testimony always would be constitutionally infirm.
The unavailability of the witness in such a situation will
always deprive the jury of the opportunity to view how the
witness reacts when testifying, and yet, even appellant
concedes that, at least in theory, such a process does not
automatically render the testimony constitutionally suspect.
Although it is preferable for the factfinder to observe the
demeanor of every witness when making credibility
determinations, it simply is not a constitutional
requirement. As the United States Supreme Court observed more
than a century ago,
general rules of law of this kind, however beneficent in
their operation and valuable to the accused, must
occasionally give way to considerations of public policy and
the necessities of the case. . . . The law, in its wisdom,
declares that the rights of the public shall not be wholly
sacrificed in order that an incidental benefit may be
preserved to the accused.
Mattox v. United States, 156 U.S. 237, 243 (1895).
Regarding the right of confrontation, the Court concluded
that "[t]he substance of the constitutional protection
is preserved to the prisoner in the advantage he has once had
of seeing the witness face to face, and of subjecting him to
the ordeal of a cross-examination." Id. at 244.
Because appellant had the opportunity to cross-examine P.E.
at the preliminary hearing and was allowed to introduce the
subsequently discovered impeachment materials, his right of
confrontation was satisfied in this case.
Alleged Limitation of Cross-Examination at the Preliminary
next asserts that he was denied his right to confront P.E.
because the judge at the preliminary hearing impermissibly
limited the scope of his cross-examination. Specifically, he
argues that the "preliminary hearing judge limited
[appellant]'s cross-examination of [P.E.] on the subject
of [appellant]'s efforts to get [P.E.] into
rehabilitation, which was the basis of [appellant]'s
trial defense [that P.E. was lying], and which related to
bias and motive to fabricate." Because the record is
insufficient to support such a conclusion, we disagree with
bases his argument that his cross-examination was improperly
limited on the following exchange at the preliminary hearing:
[Appellant's Counsel]: Did [appellant] often talk to your
father about the problems that the two of you had?
[P.E.:] Yes, he usually told my dad that I had problems or
issues, and that he was trying to help me.
[Appellant's Counsel]: Okay. Didn't he and your
father collaborate on that path to help you?
[Commonwealth]: Your Honor, I'm going to object to
relevance at this point.
[Trial Court]: I would sustain the objection.
[Appellant's Counsel]: All right.
further questions were asked regarding this point, and
appellant did not proffer any questions he would have asked
or answers he hoped to receive but for the ruling of the
court on the Commonwealth's objection.
P.E.'s preliminary hearing testimony, including the
exchange detailed above was read into evidence at trial.
Accordingly, the jury heard P.E.'s acknowledgement that
appellant and her father previously had discussed ways to
help her. Appellant was free to use that concession to
establish that P.E. had a motive to lie against him in hopes
of avoiding another trip to a treatment facility or because
she resented his efforts in this regard. Thus, the trial
court did not prevent appellant from making the argument at
issue by sustaining the Commonwealth's objection.
extent that appellant is arguing that there were additional
questions he would have asked and additional answers he would
have received to further his "motive to fabricate"
attack on P.E.'s version of events, the record does not
permit us to reach such a conclusion. "In Virginia, when
testimony is rejected before it is delivered, an appellate
court has no basis for adjudication unless the record
reflects a proper proffer." Ray v.
Commonwealth, 55 Va.App. 647, 649, 688 S.E.2d 879, 880
(2010) (internal quotation marks and citation omitted). For a
proffer to be sufficient, it must allow us to examine both
the "admissibility of the proposed testimony, " and
whether, even if admissible, its exclusion
"prejudiced" the proffering party. Molina v.
Commonwealth, 47 Va.App. 338, 368, 624 S.E.2d 83, 97
(2006) (citations omitted). "The failure to proffer the
expected testimony is fatal to [the] claim on appeal."
Id. at 367-68, 624 S.E.2d at 97. Here, appellant
made no proffer of any kind, and thus, we cannot conclude
from this record whether the court below erred in sustaining
the Commonwealth's objection.
we could determine that the court below erred in sustaining
the Commonwealth's objection, we would still have to
determine whether the error constituted harm. Here, appellant
failed to establish what questions he would have asked and
what the answers to those questions were expected to be. We
can determine prejudice only upon "proper proffer
showing what the testimony would have been." Holles
v. Sunrise Terrace, Inc., 257 Va. 131, 135, 509 S.E.2d
494, 497 (1999); Molina, 47 Va.App. at 368, 624
S.E.2d at 97 (citations omitted). Even when "we are not
totally in the dark concerning the nature of the evidence,
" we still must "know enough about the
specifics" to be able to "say with assurance"
that the lower court committed prejudicial error. Smith
v. Hylton, 14 Va.App. 354, 358, 416 S.E.2d 712, 715
(1992). Because the record is silent as to those specifics
and sufficient evidence was admitted to allow appellant to
make the "motive to fabricate" argument, we cannot
say that the ruling on the objection was such that it
rendered the cross-examination of P.E. infirm to the point
that her preliminary hearing testimony should not have been
admitted at trial.
Allegation that P.E.'s Lack of Memory at Preliminary
Hearing Rendered Her Unavailable for Cross-Examination
next challenge to the admission of P.E.'s preliminary
hearing testimony, appellant advances the novel argument that
his counsel was unable to cross-examine P.E. at the
preliminary hearing because she feigned a lack of memory
regarding certain lines of inquiry. Appellant bases his claim
on Turner v. Commonwealth, 284 Va. 198, 726 S.E.2d
325 (2012), and Jones v. Commonwealth, 22 Va.App.
46, 467 S.E.2d 841 (1996), cases which hold that a witness
testifying to a lack of memory is "unavailable" for
the purpose of the hearsay exception related to the use of
prior testimony. He argues that the multiple instances of
P.E. testifying "I don't recall" or only that
"it's possible" coupled with the subsequent
text messages where she appeared to brag about stonewalling
appellant's attorney made her "unavailable, "
thus depriving him of his right to cross-examine her.
simply stretches the cases dealing with
"unavailability" for hearsay purposes too far.
These cases do nothing more than establish the circumstances
in which the hearsay exception applies; they do not purport
to hold that the Sixth Amendment is violated every time a
witness for the Commonwealth testifies on cross-examination
that he or she does not remember something. We decline
appellant's invitation to extend them in such a fashion.
not at all unusual for a witness to testify that they do not
recall or remember specific details or events. To the extent
that such memory lapses all favor one side, the witness is
subject to having his credibility attacked. Here, appellant
used the alleged memory lapses and the subsequent text
messages from P.E. suggesting that she had stonewalled
appellant's attorney at the preliminary hearing to attack
P.E.'s credibility. That this credibility attack did not
result in an acquittal does not mean that appellant was
denied his right of cross-examination. Accordingly, the trial
court did not err in allowing P.E.'s preliminary hearing
testimony to be read at trial.
Change in Charges after the Preliminary Hearing
also challenges the admission of P.E.'s preliminary
hearing testimony at his trial on the grounds that, at the
time of the preliminary hearing, he had yet to be charged
with abduction with the intent to defile. According to
appellant, the addition of the charge after the preliminary
hearing denied him the ability to "cross-examine about a
specific existing charge, " and, as such, denied him a
resolution of this issue is controlled by the decision of the
Supreme Court of Virginia in Fisher v. Commonwealth,
217 Va. 808, 232 S.E.2d 798 (1977). In Fisher, the
Supreme Court had to
consider whether testimony given by a witness during a
preliminary hearing on a murder charge may properly be
received as substantive evidence for the prosecution in the
subsequent trial for both the murder and a robbery arising
out of the same occurrence when the witness is deceased at
the time of trial.
Id. at 809, 232 S.E.2d at 799. Despite the fact that
the defendant had yet to be charged with the robbery at the
time of the preliminary hearing, the Supreme Court affirmed
his convictions for both murder and robbery, holding that
[t]he robbery and murder indictments grew out of one
transaction, the events of which took place "in a matter
of split second." The evidence of the murder necessarily
included the facts surrounding the robbery. And
defendant's cross-examination [at the preliminary
hearing] unavoidably dealt not only with the two issues
common to both charges . . . but also with the details of the
robbery. Under these circumstances, such evidence was
properly received by the trial court in support of the
Id. at 814, 232 S.E.2d at 802.
time of the preliminary hearing, appellant was charged with
two counts of rape and with one count of abduction.
Subsequently, the abduction with the intent to defile charge
was added. The additional charge did not change the basic
nature of the allegations, rather, it only added an
additional element, the intent to defile, which the
Commonwealth was required to prove. Just as in
Fisher, P.E.'s testimony at the preliminary
hearing addressed the elements of the subsequently added
charge. She testified in detail about the rapes,
appellant's refusal to let her leave her apartment, his
physically forcing her to the bed, his forcing her to
accompany him to his residence, and his subsequent binding
her with packing tape. Appellant's counsel engaged in
significant cross-examination of P.E. related to each of
these issues. In sum, although the charge was added after the
preliminary hearing, the factual basis of the new charge was
fully developed at the preliminary hearing and appellant
could and did conduct a thorough cross-examination of P.E.
related to those facts.
that application of Fisher to these facts is
potentially fatal to his argument, appellant advances the
alternative argument that "there is doubt that
Fisher is still good law . . ., " suggesting
that the United States Supreme Court's decision in
Crawford v. Washington, 541 U.S. 36 (2004),
implicitly overruled the result in Fisher. We
Fisher or the instant case, the issue in
Crawford was not the admission of preliminary
hearing testimony where the witness had been subject to
extensive cross-examination. Rather, the challenged statement
in Crawford was an out-of-court, unsworn police
interview with the defendant's wife that occurred outside
the presence of defendant's counsel. 541 U.S. at 39-40.
When, because of the marital privilege, defendant's wife
refused to testify at trial, the state sought (and was
allowed) to admit her police interview as evidence.
Id. at 40-41. The United States Supreme Court
reversed the defendant's conviction, holding that the
statement was admitted in violation of the Sixth Amendment
because "[w]here testimonial evidence is at issue,
however, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for
cross-examination." Id. at 68. Because the
preliminary hearing testimony that was admitted in
Fisher was subject to cross-examination and was
admitted only after a finding of unavailability, we conclude
that Crawford did not overrule Fisher as it
pertains to the issue before us.
conclusion is buttressed by our decision in Schneider v.
Commonwealth, 47 Va.App. 609, 625 S.E.2d 688 (2006). In
addressing an argument that Crawford had altered
Virginia's longstanding requirements for the admission of
preliminary hearing testimony, we held "our law
regarding the admissibility of preliminary hearing testimony
has always required unavailability and an opportunity for
cross-examination and complies with the new requirements of
Crawford without alteration." Id. at
613, 625 S.E.2d at 690. Accordingly, the trial court did not
err in allowing P.E.'s preliminary hearing testimony to
be read at trial.
Proposed Defendant's Exhibit 14
argues that the trial court erred in declining to admit into
evidence proposed Defendant's Exhibit 14, a text message
P.E. sent to a friend the morning of the preliminary hearing.
In the text message, P.E. wrote, "Is it sick that
I'm making myself look really good right now just to piss
him off?" Appellant argues that the text message should
have been admitted because it "demonstrate[s] that [she]
was attempting to anger or provoke [him] during the
preliminary hearing, that she was not afraid of him, and that
her testimony was colored by bias, prejudice, and hatred
toward [him]." Appellant also contends that the message
was admissible because "[a] reasonable juror . . . may
have concluded that [her] efforts to appear more sexually
attractive to [appellant] at the preliminary hearing in this
case made it less likely that [he] had actually raped"
the admissibility of evidence is within the discretion of the
trial court and [the appellate court] will not reject the
decision of the trial court unless [the appellate court]
find[s] an abuse of discretion." Midkiff v.
Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578
(2010). A "trial judge's ruling will not be reversed
simply because an appellate court disagrees." Thomas
v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738,
743 (internal quotation marks and citation omitted),
adopted upon reh'g en banc, 45 Va.App. 811, 613
S.E.2d 870 (2005). Instead, a reviewing court can only
conclude that an abuse of discretion has occurred in cases
where "reasonable jurists could not differ" about
the correct result. Id.
this deferential standard, we cannot say that the trial court
erred in refusing to admit the text message. P.E.'s text
message on the morning of the preliminary hearing is, at
best, tangential to the issues of whether or not appellant
raped and abducted her in September 2013. Furthermore, given
all the text messages, inconsistencies, and P.E.'s
preliminary hearing testimony, it was clear to the jury that
there was a degree of animus between P.E. and appellant at
the time she testified. In short, we simply cannot say that
the trial court abused its discretion in refusing to admit
proposed Defendant's Exhibit 14.
foregoing reasons, appellant's convictions for rape and
abduction with the intent to defile are affirmed.
 Appellant was represented by different
counsel from the time of the preliminary hearing through the
jury's verdict. His present counsel represented him
regarding the post-trial motions and on appeal.
 The Honorable Charles J. Maxfield
presided over the proceedings that are the subject of these
issues on appeal.
 Although appellant's motion in
limine did not specifically reference Brady v.
Maryland, 373 U.S. 83 (1963), it detailed information
that was, at the time of the preliminary hearing, in the
Commonwealth's possession and that appellant contended
was exculpatory. Accordingly, the motion in limine
sufficiently preserved appellant's Brady
argument for appellate review.
 Only counsel's questions and
P.E.'s answers were read at trial; the jury did not hear
and therefore was not aware of any objections that had been
raised at the preliminary hearing or how the judge resolved
 The jury also convicted appellant of
simple abduction. Post-trial, appellant argued that, at most,
the evidence established one continuous abduction from the
confrontation at P.E.'s door, throughout the rapes, and
until P.E. was released near her parents' home the next
day. The trial court agreed and set aside the simple
 The next day, appellant filed another
motion to set aside the verdict. The trial court denied the
motion except for the portion that sought dismissal of one of
the abduction counts.
 In pertinent part, the Sixth Amendment
guarantees a criminal defendant the right "to be
confronted with the witnesses against him."
 For purposes of our analysis, we will
assume without deciding that P.E.'s statement to the
Alexandria police on June 5, 2013, that she was not assaulted
on that occasion is inconsistent with her later description
of the June 5, 2013 incident to Fairfax police.
 Appellant does not argue that the
statements were exculpatory in and of themselves, rather he
limits his argument to his desire to use the statements to
impeach P.E.'s credibility.
 Proposed Defendant's Exhibit 14
was not admitted. We address this issue in Section II
 We once again note that there was
other evidence which corroborated P.E.'s testimony
regarding the rapes and the abduction, not the least of which
was appellant's acknowledgment of his statement to
Patricia Taylor that he "kind of made [P.E.] have sex
 We acknowledge that, in the normal
course, litigants have no need to offer proffers in
preliminary hearings in courts not of record. However, when,
as here, the preliminary hearing testimony becomes the trial
testimony because of the unavailability of the witness, such
a step is necessary to create a sufficient record for
 The evidence in this case is that
such a lack of memory may be more likely to occur with the
victims of sexual assaults. Comparing memories of sexual
assault to a deck of cards, Nurse Roach testified, without
objection, that "it takes [victims] a while to retrieve
all the cards. Sometimes they never retrieve them in their
lifetime; sometimes they may retrieve a card years or months
later. So they have a hard time . . . to tell a story in a
complete start to finish." Roach also stated that
post-traumatic stress can explain why a sexual assault victim
may give inconsistent accounts of the same event to different
people. This explanation is consistent with P.E.'s
testimony at the preliminary hearing that she "just
tried to block  out" aspects of her relationship with
 We note that P.E.'s testimony
regarding the events in her apartment related to appellant
preventing her from leaving the apartment and dragging her to
the bed, about which she was cross-examined, fully make out
the elements of abduction. See Epps v. Commonwealth,
66 Va.App. 393, 404, 785 S.E.2d 792, 797 (2016) (finding that
blocking the kitchen door and detaining the victim was a
separate abduction unnecessary to accomplishing the crime of
assault and battery). Coupled with the testimony about the
subsequent rapes, the elements of abduction with the intent
to defile were all addressed in P.E.'s preliminary
 Even if the pertinent part of
Fisher has been called into question by
Crawford, we hold that appellant's Sixth
Amendment right to confrontation was satisfied in this case.
Crawford makes clear that the Sixth Amendment
requires that the accused be allowed to confront his accuser.
Implicitly, this requires that there be an accusation of
which the accused is aware. Here, the accusations were
established by P.E.'s testimony with which appellant was
confronted and which he was able to subject to
cross-examination. Because the abduction with intent to
defile charge was fully made out by P.E.'s accusations at
the preliminary hearing appellant could and did confront his
accuser regarding her accusations, satisfying the Sixth
Amendment guarantee as recognized in
 Appellant's challenge to the
exclusion of proposed Defendant's Exhibit 14 deals solely
with an evidentiary ruling and, unlike his challenges to the
admission of the preliminary hearing testimony, does not
raise a constitutional issue.
 Even if it were error not to admit
proposed Defendant's Exhibit 14, we conclude that any
such potential error was harmless. In cases of
non-constitutional harmless error, if we are "sure that
the error did not influence the jury, or had but slight
effect, the verdict and judgment should stand."
Anderson v. Commonwealth, 282 Va. 457, 467, 717
S.E.2d 623, 628 (2011) (citations omitted). Here, given all
of the evidence, including both the challenges to P.E.'s
credibility and the substantive evidence of appellant's
commission of the crimes (especially his confession to Taylor
that he "kind of made [P.E.] have sex with [him]"
and subsequent acknowledgement that he committed a sexual
assault on P.E.) leads inexorably to the conclusion that the
admission of proposed Defendant's Exhibit 14 would not
have altered the outcome.