Key Takeaway: Specific and discrete appellate arguments must be raised, developed, and preserved at the trial court.

In this Pennsylvania Superior Court decision, the Court upheld the conviction of former high school drama teacher Seth Jason Reich. He was found guilty of multiple charges—including sexual assault, indecent assault, and furnishing alcohol to a minor—stemming from a 2019 incident involving a former student, M.R., and her friend, E.A. The gist of the case was that the Defendant, M.R., and E.A. met at a hotel at an agreed-upon date and time, consumed alcohol as agreed upon, and had sex. M.R. and E.A., who were both under the age of 21 but older than 18, later said they were too intoxicated to consent to sex with the Defendant. 

At trial, the Defendant argued that the sex was consensual with both women. In support, he pointed to hundreds of text messages memorialized in a group text thread on the WhatsApp phone application, which detailed the planning of the evening, which included explicit comments from all members of the group chat about having sex and drinking alcohol at the hotel.  Despite attempts by the defense to admit hundreds of explicit text messages to support his claims of consent, the trial court ruled these were largely inadmissible except for limited impeachment purposes due to Pennsylvania’s Rape Shield and as hearsay. 

The issue on appeal

On appeal, the Defendant argued the messages established the parties’ “state of mind” (i.e., that group sex was agreed upon and thus consensual). The state of mind exception is a recognized exception to the rule prohibiting hearsay. However, defense counsel did not argue this specific exception to the hearsay rule, which resulted in a waiver of the issue on appeal. The appeal also contested the exclusion of certain defense testimony and the trial court’s restrictions during closing arguments, but these claims were ultimately rejected. The Defendant’s conviction and sentence of 3–10 years in prison were affirmed.

Understanding the Court’s Decision

Defense counsel prepared a trial defense based on the issue of consent between the parties. In support, he possessed scores of text messages which tended to (1) establish the parties’ intention to engage in consensual sexual activities and (2) undermine the credibility of the victims at trial—only argued the second as a basis for admitting the text messages. Counsel only argued one of these points (credibility) in support of admitting the text messages at trial. Even though the subject was preserved on appeal (the admissibility of the text messages), the reason for admission was waived because counsel only argued credibility, not state of mind. Statements made that tend to establish a person’s state of mind or mental state can be an exception to the rule prohibiting hearsay, which is an out-of-court statement offered for its truth. Without raising and developing the correct basis for admission, counsel waived the argument on appeal. 

Impact of this ruling

Sometimes, a defendant will lose their case in the trial court but win on appeal. That cannot happen if your lawyer does not preserve all of your issues for appeal. When you go to trial, you need a lawyer who knows the rules and positions your case well for future appeals, if necessary.

Facing sexual assault charges or filing an appeal in Philadelphia?

If you are facing criminal sexual assault charges or want to appeal your conviction, we can help. Contact John F. McCaul for a free consultation to discuss the facts of your case. With years of experience in criminal defense in Philadelphia, John will develop the best legal strategy for your charges.