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filed: May 7, 1982.


No. 628 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Luzerne County, No. 669 of 1978.


Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.

Joseph Giovananni, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham, Brosky, Wieand, Johnson, Montemuro, Popovich, DiSalle and Shertz, JJ. Montemuro, J., files a dissenting opinion in which Spaeth, Cavanaugh, Wieand and Popovich, JJ., join. DiSalle and Shertz, JJ., did not participate in the consideration or decision of this case.

Author: Johnson

[ 299 Pa. Super. Page 212]

Appellant and two co-defendants were charged with Rape,*fn1 Indecent Assault,*fn2 Unlawful Restraint*fn3 and Criminal Conspiracy.*fn4 At a jury trial appellant [hereinafter James] and one co-defendant [hereinafter Gerald] were convicted of Criminal Conspiracy and Unlawful Restraint. The third defendant [hereinafter Richard] was convicted of all four crimes.

[ 299 Pa. Super. Page 213]

This appeal by James is based on the assertion that the trial court erred in refusing to allow Richard to testify at the trial that he had engaged in consensual intercourse with the complainant earlier in the evening. The trial court refused to allow this testimony because the defendant had not filed a written motion and offer of proof of this evidence as he is required to do by the Rape Shield Law.*fn5

The charges arose out of an allegation by the complainant [hereinafter Carol] whose testimony at trial showed that at approximately 10:40 p. m. on a Sunday, she came out of a dance which she had attended with a girlfriend; she saw Richard standing beside a car; the other two defendants were inside the car; Richard asked her where she was going and she replied that she was looking for her girlfriend; Richard responded that the girlfriend had left; he then took her by the arm and put her in the back of the car which drove off, with James driving, Gerald in front, and Richard and Carol in the back seat. Richard then removed Carol's jeans and panties and forcibly engaged in sexual intercourse with her, while Gerald held her down. Gerald then tried to climb over the seat in order to rape her, but desisted when she pushed him away.

[ 299 Pa. Super. Page 214]

At about midnight, having been given back her jeans by James, Carol left the car when it pulled into the parking lot of a shopping center. She then saw another car approaching, and asked the couple inside it for help. They drove her to her home. From there she went to a hospital where she was examined. Tests were taken which indicated the presence of semen and live sperm in her vagina.

The testimony proposed by Richard, during the trial but at sidebar, and excluded by the trial court, was to the effect that Richard had in the past dated Carol and engaged in consensual intercourse with her, and in particular that earlier that same evening, at the dance, Carol had asked Richard to go for a walk, and that they had gone to a parking garage where they had engaged in consensual sexual intercourse in a waiting room. The Commonwealth objected to this testimony on the grounds that under the Rape Shield Law it was irrelevant and inadmissible, particularly in view of the defendant's failure to file a written motion pursuant to 18 Pa.C.S.A. § 3104(b).*fn6

The trial court sustained the Commonwealth's objection to any testimony about Carol's alleged prior sexual relationship with Richard. The court ruled that the defense could bring in whatever defense they had as to what happened in the car, but that they could not bring in "any evidence of specific acts of unchastity between the Defendants and the victim." In excepting to the court's ruling, the defense stated that they wanted to introduce "the fact of the intercourse as explanation as how the sperm and the semen got into the vagina."

Trial resumed. All three defendants testified. Richard testified in some detail to his alleged dates with Carol in the past. He also testified to Carol's having asked him to go for a walk at the dance and to their having gone into the parking garage. Richard testified that after leaving the

[ 299 Pa. Super. Page 215]

    garage he and Carol sat in the back seat of James' car for a while playing a tape recorder; that James then returned to the car and became annoyed at their using the tape recorder; and that after that the three defendants and Carol drove around the town and on to the highway. Richard's testimony continued to the effect that there was some animosity between James and Carol which resulted ...

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