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COMMONWEALTH PENNSYLVANIA v. WILLIAM CLIFFORD DUNCAN (07/11/80)

filed: July 11, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM CLIFFORD DUNCAN, APPELLANT



No. 255 APRIL TERM, 1979, Appeal from Judgment of Sentence imposed February 16, 1979 in the Court of Common Pleas, Criminal Division, of Allegheny County at No. 7803989.

COUNSEL

Donald Calaiaro, Pittsburgh, for appellant.

Kemal Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Price, Hester and Cavanaugh, JJ.

Author: Cavanaugh

[ 279 Pa. Super. Page 396]

This is an appeal from a judgment of sentence imposed following appellant's conviction by a jury on charges of statutory rape, indecent assault, indecent exposure and corruption of minors. Appellant was sentenced to a term of imprisonment of not less than two and one half years nor more than five years.

According to testimony at trial, on June 23, 1978 Duncan, age 54, forced C. C., age 13, and two other minors into his automobile. He took the girls to his apartment where he had sexual intercourse with C. C. while the others watched. After giving the girls money and cautioning them not to tell anyone of the incident, he drove the girls home. The

[ 279 Pa. Super. Page 397]

    following day, C. C.'s mother learned that appellant had intercourse with her daughter and informed the police.

Appellant's argument on appeal is that he was denied procedural due process when the trial court erred in denying the admission of testimony as to the minor victim's past sexual conduct with a third person.*fn1 Duncan sought permission to testify that prior to the commission of the offenses charged he had inadvertently caught C. C. engaging in sexual intercourse with a third person; that Duncan informed the victim's cousin, who in turn related the information to Mrs. C. Mrs. C. later telephoned Duncan concerning the incident. Duncan maintains that the evidence was relevant and admissible for the limited purpose of showing that the victim's bias caused her to fabricate the charges against him.

Appellant admits that under the Pennsylvania "Rape Shield Law," 18 Pa.C.S.A. § 3104, evidence of the victim's past sexual conduct is not admissible in a rape case, including statutory rape cases. 18 Pa.C.S.A. § 3104 provides, in relevant part:

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 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 ...


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