Commonwealth v. Jorgenson

517 A.2d 1287, 512 Pa. 601, 1986 Pa. LEXIS 918

• Court: Supreme Court of Pennsylvania
• Decided: November 20, 1986
• Docket: 160 E.D. Appeal Docket 1985
• Status: Published

Opinions

OPINION OF THE COURT

ZAPPALA, Justice.

This appeal arises out of the Appellant’s conviction of rape, indecent sexual assault, and simple assault. Prior to trial the Appellant filed a motion in limine requesting that the court exclude evidence of seminal acid phosphatase found in a pair of black panties worn by the victim the night of the alleged rape and the testimony of the emergency room physician who examined the victim and found her to be internally bruised. The purpose of the motion was to exclude this evidence because of the Appellant’s perception that the Rape Shield Law, Act of May 18, 1976, P.L. 120, No. 53 § 1, 18 Pa.C.S.A. § 3104 barred the explanatory testimony required to rebut the Commonwealth’s evidence.¹ Prior to the commencement of trial, counsel for the Appellant and the Commonwealth requested a hearing on the motion, specifically for the court to consider the testimony of a witness who allegedly had sexual relations with the victim around the time of the alleged rape. Without taking any testimony, the trial court denied the motion citing Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980).² Thereafter the Appellant was convicted. Timely post-trial motions were filed asserting that the trial court erred in denying the Appellant’s motion in limine, and were denied by the trial court. Superior Court affirmed (Olszewski and Johnson, Del Sole dissenting). We granted allocatur to review the use of the Rape Shield Law in this instance in light of Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983) and now reverse.

In Majorana, the defendant attempted to introduce evidence of a sexual encounter between the victim and himself two hours before the victim was allegedly raped. The purpose of the evidence was not to question the victim’s chastity but to explain the presence of semen in the victim’s body. Both the trial court and the Superior Court refused to permit the admission of this evidence based upon the Rape Shield Law. In reversing we stated:

We do not believe the legislature intended to prohibit relevant evidence which directly negates the act of intercourse with which a defendant is charged. Where, as here, a defendant offers evidence of intercourse close enough in time to the act with which he is charged that it is relevant to explain the presence of objective signs of intercourse, the protections afforded to the complainant by the Rape Shield Law do not apply. Such evidence should be admitted, subject to the usual rules of admissibility of evidence, in particular the balancing of probative value against prejudicial effect.

Such an interpretation is consistent with the goals of the Rape Shield Law in protecting the victim’s reputation and does not deny the defendant’s right to introduce relevant evidence in his own defense. Cases where consent is genuinely “at issue” are treated according to the exception set forth in the statute. However, in cases such as that which we have here, where denial of the act, not consent is at issue, evidence of consensual intercourse between defendant and complainant is limited to evidence of an act close enough in time to account for the objective signs of intercourse and is further limited to the purpose of explaining the presence of those objective signs. However, a defendant cannot engage in the wide-ranging and harassing cross examination the statute legitimately prohibits.

Thus, the Rape Shield Law does not preclude appellant from explaining the presence of semen and sperm in the victim’s body. The act offered in explanation was not a prior “separate incident” but an alternative account of the events of that evening offered to counter the prosecution’s medical testimony. For that limited purpose it was admissible. To hold otherwise would deny appellant the chance to defend by presenting a denial of the prosecution’s case.

503 Pa. at 611, 470 A.2d at 84-85. Thus, we permitted the defendant’s testimony to explain the reasons for the evidence of sexual interaction.

In the appeal now before us the Appellant requested that all evidence be excluded which would require rebuttal testimony of a prior sexual activity. Although the Commonwealth now argues that the offer of proof in support of the Appellant’s motion is insufficient to meet the test set forth in Majorana, it did not do so before the trial court. Instead, the Commonwealth indicated that a hearing would be necessary to determine the credibility of the Appellant’s witness who allegedly had sexual relations with the victim near the time of the incident. The sole contention of the Commonwealth was that this witness did not in fact have sexual relations with the victim. Thus, the Commonwealth was arguing that the court would have to determine the credibility of the testimony offered.

Rather than hearing and evaluating this testimony to determine the witness’s credibility, the trial court held that the introduction of the Appellant’s evidence was barred by the Rape Shield Law. In so doing, it is clear that the trial court was of the belief that the Appellant’s evidence would not be admissible for any purpose. This determination was based upon Commonwealth v. Duncan, supra.

Unfortunately, neither the trial court nor the Superi- or Court had the benefit of our Majorana decision. Thus, no offer of proof would have been sufficient to overcome the trial court’s reliance upon Commonwealth v. Duncan, supra. In light of the Majorana case, it is clear that the trial court was in error.

Since the record has not been developed such that this Court can review it in evaluating the application of Commonwealth v. Majorana, it is necessary that we remand this matter to the trial court for a hearing on the testimony which the Appellant wishes to offer in support of his motion. If the trial court determines that the offered testimony does not meet the test of Majorana, then a new trial would not be warranted on this ground and this Court would have to review the remaining issues raised in this appeal. However, if the trial court determines that the witness’s evidence would be credible and relevant, then a new trial would be warranted.

Accordingly, the Order of the Superior Court is reversed and the matter is remanded to the Court of Common Pleas of Lancaster County for further disposition consistent with this Opinion.³

LARSEN, J., filed a dissenting opinion. PAPADAKOS, J., filed a dissenting opinion in which LARSEN and HUTCHINSON, JJ., joined.

1 . The Act states:

(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 reputation 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).

2 . In Commonwealth v. Duncan, supra, the Superior Court held that the Rape Shield Law required the exclusion of any evidence regarding the past sexual conduct of the victim and any third persons.

3 . Both the trial court and the Superior Court held that any error in the admissibility of the Appellant’s testimony was harmless in light of the other testimony Appellant introduced with regard to stains on the panties. Because a defendant is not denied the opportunity to proceed with alternative defenses, such error cannot automatically be deemed harmless.