DocketNumber: 3289
Judges: Sole, Tamilia, Hoffman
Filed Date: 11/27/1991
Status: Precedential
Modified Date: 10/19/2024
The Commonwealth takes this appeal from the Order of October 25, 1990 granting defendant James C. Smith’s motion for a new trial after the trial court overturned a pretrial Order excluding evidence under the rape shield statute.
Defendant was charged with rape
At the preliminary hearing, the victim testified as to the extent of defendant’s assaults, including the acts of intercourse. Prior to trial, the Commonwealth presented before the Honorable Jane C. Greenspan a motion in limine to preclude defendant’s introduction of the rape kit results.
Following briefs and oral argument on defendant’s post-verdict motions for a new trial and in arrest of judgment, the trial court denied defendant’s motion in arrest of judgment but granted the motion for a new trial on the basis that the rape kit test results were relevant and admissible for the limited purpose of explaining the victim’s motive in naming defendant and did not in any way embarrass the victim or tend to make the rape shield law less effective (N.T., 10/25/90, pp. 5-6). This appeal followed.
On appeal, the Commonwealth argues separate procedural, substantive and policy issues in which it contends the trial court erred and which require reversal by this Court. In effect, this Court is again called upon to determine the scope of Pennsylvania’s rape shield law. The statute provides:
§ 3104. Evidence of victim’s sexual conduct
(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputa*368 tion evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).
18 Pa.C.S. § 3104.
At common law, and to some extent even today, a rape victim often suffered secondary abuse at the hands of the judicial system through aggressive defense counsel who “essentially put the victim on trial.” In response to these abuses, the federal government and the states enacted rape shield laws which “were intended to end the abuses ... by limiting the harassing and embarrassing inquires [sic] of defense counsel into irrelevant prior sexual conduct of sexual assault complainants.” Commonwealth v. Nieves, 399 Pa.Super. 277, 286, 582 A.2d 341, 346 (1990) (citations omitted). The rape shield statute “is a bar to admission of testimony of prior sexual conduct involving a victim, whether it is consensual or the result of nonconsensual or assaultive behavior, unless it has probative value which is exculpatory to the defendant.” Commonwealth v. Johnson, 389 Pa.Super. 184, 195-196, 566 A.2d 1197, 1202 (1989), allocatur granted, 525 Pa. 643, 581 A.2d 569 (1990) (emphasis added). To that end, limited exceptions to the broad exclusion of the rape shield law have arisen to demonstrate the rape shield law “will bow to a defendant’s right to confront and cross-examine when a specific proffer demon
In this case, the Commonwealth claims defendant’s offer of proof was inadequate to meet the requirements of Nieves and Troy for relevance, probativeness and necessity. During the hearing on the Commonwealth’s motion in limine, the following exchange occurred between defense counsel and the court in regard to the admission of the rape kit results:
MR. FRANZEL [defense counsel]: On the issue of credibility and the relevance of this test to credibility, it goes beyond that. The Complainant consistently has maintained to the police, in the police reports, that she never had intercourse with the Defendant.
At the preliminary hearing, for the first time, she said that there was intercourse with the Defendant. In fact, in the hospital reports—
THE COURT: Why was this a rape, if she continually said that she didn’t have intercourse with the Defendant? Why did they arrest him if—
MR. FRANZEL: The charges are Indecent Assault and Involuntary Deviate Sexual Intercourse.
On the hospital records, it says, “Denies any intercourse.” So, it goes to the credibility of this witness. I think that all of this is part of the whole factual underpin-^*370 ning of the case, touching on the credibility of this witness.
THE COURT: Any of that evidence goes to the credibility of the complaining witness, but there is a protection, under the Rape Shield Law, that overrides that, which has been upheld time and time again.
I need to see the difference here____
(N.T., 11/2/89, pp. 6-7.)
Defendant maintains this exchange was sufficient to breach the rape shield protection, even though defendant did not then, or at any other time in the hearing, make the specific argument he now makes, namely, that the victim never accused defendant of raping her prior to learning the results of the rape kit, but did so later to avoid her grandmother’s possible anger upon discovering the victim had had sexual intercourse with someone. In support of this argument, defendant relied upon this Court’s decision in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), a rationale adopted by the trial court in awarding defendant a new trial. We find merit in the Commonwealth’s claim the trial court erred in this regard.
In Black, the defendant’s daughter accused him of rape. The defendant then offered testimony of his daughter’s consensual sexual relationship with her brother, who had been thrown out of the family home shortly before the daughter brought the charges against the defendant. The defendant offered this testimony to demonstrate a specific motive or bias for the daughter to make false allegations. This Court found the rape shield law may not be used to exclude relevant evidence attacking credibility or showing a witness’ bias. Id., 337 Pa.Superior Ct. at 557, 487 A.2d at 401. The holding in Black, however, should be viewed quite narrowly, as later cases have applied it “only where the victim’s credibility was allegedly affected by bias against or hostility toward the defendant, or the victim had a motive to seek retribution.” Commonwealth v. Boyles, 407
In this case, defendant, at the motion in limine, only made a general attack on the victim’s credibility in not alleging intercourse with defendant earlier, which, as the hearing court noted correctly, could be made frequently were it not for the statutory protection of the shield law. Defendant only raised the issue of bias as it affected the victim’s credibility upon the conclusion of the trial. For these reasons, we find defendant’s claim procedurally defective, and we reverse the Order of the trial court granting a new trial. Were the facts of this case different, our discussion would cease at this point. In the interest of public policy, however, we also address the substantive claims raised by the Commonwealth, inasmuch as they involve other important issues within the ambit of the rape shield law.
As discussed infra, evidence sought to be admitted over the broad exclusion of the rape shield law must be analyzed in light of three factors: (1) its relevance to attack credibility or show bias; (2) its probative value versus its prejudicial effect; and (3) whether alternative means exist to attack credibility or show bias. Black, supra; Nieves, supra. Evidence is relevant if it “logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 108 (1989).
We find the evidence sought to be admitted in this case of dubious relevance to attack the victim’s credibility because we are unable to discern from the record before us any bias against or hostility toward the defendant on the part of the victim, as required to invoke the narrow holding of Black and skirt the rape shield law. Boyles, supra. To the contrary, the record indicates a close, almost paternal relationship between the victim and defendant prior to the assaults. The victim and her brother called defendant “Dad” and the victim was encouraged to visit him in order to get away from her housing project.
As to the second factor in Black, we find little probative value in the test results, and, therefore, the evidence clearly is outweighed by its prejudicial effect.
[Tjhere is ... a persistent belief among some people that a woman or girl would not be assaulted unless she provoked the assault by acting promiscuously or deliberately placed herself in a situation where an assault could be anticipated. This is particularly so when the parties
Johnson, supra, 389 Pa.Superior Ct. at 188, 566 A.2d at 1199.
Finally, we find defendant had ample alternative means to attack the victim’s credibility and develop his claim of bias without the Johnson Rape Kit results. Defendant was able to cross-examine the victim and attack her credibility through the use of her prior inconsistent statements to the police, her brother and her grandmother; through questioning directed at the suddenness of her allegation of rape after she went to the hospital; and through the use of the other hospital records that include her denial of sexual intercourse.
Were this Court to uphold the trial court’s Order, replete as it is with inferences the victim falsely accused defendant of rape rather than face the opprobrium and ire of her grandmother for having had consensual sexual intercourse, we would effectively remove children from the protections of the rape shield law by finding child victims likely to cry “rape” when confronted by evidence of sexual activity, rather than deal with the possible anger of parents or guardians. We find no authority to allow such a weakening of the rape shield law. After careful review of the record and analysis of the rape shield law and cases interpreting it, we conclude the facts in this case do not warrant a deviation from the application of the law as the issue reduces itself simply to a consideration of whether other sexual conduct following the alleged rape, unconnected with appellant, is admissible as evidence. We conclude it is not. Order reversed. Case remanded for sentencing. Jurisdiction relinquished.
. 18 Pa.C.S. § 3104.
. Id., § 3121.
. Statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure, simple assault and corruption of a minor.
. Although no reason was given, the Commonwealth is of the opinion the test was performed mistakenly by the examining physician, who thought the victim was there as the result of a rape that had just occurred. (Brief of Appellant, p. 5; N.T. 11/2/89, pp. 5-6.)
. Although it was agreed by the parties the sperm found was not defendant's, it is not clear whether this agreement was derived from the length of time since defendant’s last assault, or, as stated by the Commonwealth, from the results of a subsequent analysis of the sperm sample. Further, it is also unclear who was aware of these results, especially the victim or her grandmother.