Commonwealth v. Creider

361 A.2d 352, 240 Pa. Super. 403, 1976 Pa. Super. LEXIS 2094
CourtSuperior Court of Pennsylvania
DecidedMarch 29, 1976
DocketAppeal, No. 78
StatusPublished
Cited by21 cases

This text of 361 A.2d 352 (Commonwealth v. Creider) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Creider, 361 A.2d 352, 240 Pa. Super. 403, 1976 Pa. Super. LEXIS 2094 (Pa. Ct. App. 1976).

Opinion

Opinion by

Spaeth, J.,

Appellant was convicted by a judge sitting without a jury of forcible rape, and on February 22, 1973, following the denial of post-verdict motions and the completion of a pre-sentence investigation, was sentenced to serve three and one half to seven years in prison and to pay the costs of prosecution. On July 1, 1974, in response to appellant’s Post Conviction Hearing Act petition, the lower court filed an order allowing appellant to appeal nunc pro tunc from the judgment of sentence.

The statute in effect on the date of appellant’s conviction was the Act of June 24, 1939, P.L. 872, §721, as amended 1966, Special Sess. No. 3, May 12, P.L. 84, §1, 18 P.S. §4721, which read in pertinent part: “Whoever has unlawful carnal knowledge of a woman, forcibly and against her will, is guilty of rape ....”

The incident giving rise to the charge of rape occurred on July 5, 1971. On the evening of that date, Susan Baker, age 16, was walking her dog on a rural road when three men - appellant, Phillip Stoner, and [405]*405Darryl Selby - drove up in a pickup truck, and began to talk with her. During the conversation Susan noticed cows escaping from a nearby pasture and asked the men to help her herd them back inside the fence. While in the field doing this, appellant forced Susan to the ground, removed her clothing below her waist with the help of Stoner, and had sexual intercourse with her forcibly and without her consent.1 When a police car stopped near the parked pickup truck, appellant and his two companions fled across the field. Appellant was arrested later that evening at the home of a friend.

On this appeal appellant contends that the trial court erred in refusing to permit cross-examination of the prosecutrix as to her prior sexual experience, and that the verdict was against the weight of the evidence.

I

On cross-examination of the prosecutrix, defense counsel asked: “Had you had sexual relations with a male before this night?” When the Commonwealth objected that the question was irrelevant, defense counsel said: “Your Honor, she has testified she had sexual relations with this man and it is possible for a young girl and she is young not to know the full ramifications of that term and I would like to explore it on cross-examination.” The court properly sustained the objection.

It is preposterous to contend, as appellant seems to, that a person must have experienced sexual intercourse to know what it is. If counsel doubted the prosecutrix’s comprehension, he could have asked her to define sexual intercourse. Instead, he only asked the following:

“Q. Who told you to use the word penetrated?
“A. I figured it meant intercourse, which it does, and to me it meant intercourse and he did.
[406]*406“Q. Well, then you are saying no one told you to use the word penetrated?
“A. I asked my mom if that’s what it meant; and she said it did.”

We have held elsewhere that “the word ‘intercourse’ has a common meaning which is generally understood.” Commonwealth ex rel. Wood v. Maroney, 199 Pa. Superior Ct. 561, 564, 186 A.2d 864, 866 (1962), cert. denied, 374 U.S. 854 (1963).

Appellant also contends that the question should have been allowed to impeach the general credibility of the prosecutrix. A witness’s prior sexual experience or lack of it, however, is not relevant to credibility, and may therefore not be inquired into to impeach credibility. This has long been the law of Pennsylvania.2 As early as 1835 Chief Justice Gibson so held in harsh but eloquent language: “Granting that universal immorality includes want of veracity, yet a man may be generally vicious without being universally so. He may be intemperate, incontinent, profane and addicted to many other vices that ruin the reputation, and yet retain a scrupulous regard for truth. Countless instances of such partial exemption from depravity are in the knowledge of every one. It is after all, character for veracity alone with which the jury have to do; and why not let it come to them in the first instance without admixture of ingredients that may alter its quality and corrupt its influence? If character for veracity be the legitimate point of inquiry, and if to this complexion it must come at last, it follows that it is the only one, and that an inquiry into anything else is illegitimate ....” Gilchrist v. McKee, 4 Watts 380, 381 (Pa. 1835).3

[407]*407Appellant has cited Commonwealth v. Eberhardt, 164 Pa. Superior Ct. 591, 67 A.2d 613 (1949), as “authority ... for the singular purpose of establishing that in Pennsylvania a prosecutrix in a rape case may be asked if she had intercourse on prior occasions.” Appellant’s brief at 3. This is, however, an inaccurate statement of that case.

First, Eberhardt is limited to cases where consent of the victim is offered as a defense: “At common law, and under the statute [citation omitted] evidence of bad reputation for chastity is admissible on a rape charge as substantial evidence bearing on the question of the female’s consent .... In the present case the complainant had testified to intercourse by force and without her consent, and to the extent that evidence of . her bad reputation for chastity tended to show consent on her part it necessarily had a direct bearing on her credibility. It is not necessary for us to go so far as to hold that bad reputation for chastity would affect her credibility generally and as to all elements of the crime charged. ” Id. at 603-604, 67 A.2d at 619. (Emphasis supplied.) Here, not only was consent not offered as a defense, but appellant himself testified that the prosecutrix did not consent.

Second, even where consent is at issue, it is settled that the credibility of a prosecutrix’s testimony that she did not consent may not be tested by cross-examining her about her prior chastity or whether she had engaged in specific acts of intercourse; the examiner is limited to proof of her prior reputation for chastity.4 This is shown [408]*408by the decision in Commonwealth v. Wink, 170 Pa. Superior Ct. 96, 84 A.2d 398 (1951). There, the charge was statutory rape. The statute in effect, the Act of June 24, 1939, supra, 18 P.S. §4721, provided that “if the jury shall find that such woman child was not of good repute, and that the carnal knowledge was with her consent, the defendant shall be acquitted of rape, and be convicted of fornication.” The prosecutrix testified that she had not consented to the intercourse but had submitted only because the defendant had threatened her with a revolver. On cross-examination designed to show, inter alia, that the prosecutrix was “a trollop” and “a prevaricator,” id. at 100, 84 A.2d at 400, the defendant’s counsel “got her to admit that she had had intercourse before her relations with [the defendant].” Id. at 101, 84 A.2d at 401.

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Cite This Page — Counsel Stack

Bluebook (online)
361 A.2d 352, 240 Pa. Super. 403, 1976 Pa. Super. LEXIS 2094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-creider-pasuperct-1976.