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decided: December 23, 1983.


No. 74 E.D. Appeal Docket 1982, Appeal from the Order Dated May 7, 1982 at No. 628 October Term 1979, Affirming the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, at No. 669 of 1978, 299 Pa. Superior Ct. 211, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., files a concurring opinion. Nix, J., concurs in the result. Larsen, J., files a dissenting opinion.

Author: Hutchinson

[ 503 Pa. Page 603]


We granted appellant leave to appeal Superior Court's en banc order, 299 Pa. Super. 211, 445 A.2d 529, affirming Luzerne County Common Pleas' judgments of sentence after a Luzerne County jury found appellant guilty of unlawful restraint and criminal conspiracy to commit rape.

[ 503 Pa. Page 604]

One co-defendant, Gerald Nickol, was also convicted of unlawful restraint and criminal conspiracy, while a third co-defendant, Richard Nickol, was convicted of these crimes as well as rape and indecent assault.*fn1 Common Pleas sentenced appellant to a term of 6 to 23 1/2 months on the criminal conspiracy charge, and suspended sentence on the charge of unlawful restraint. Appellant filed timely post-trial motions, which were denied. A divided Superior Court, en banc, affirmed by a majority of one.

At issue is the proper interpretation of Pennsylvania's Rape Shield Law. 18 Pa.C.S. § 3104.*fn2 Appellant argues that the trial court erred in refusing to allow Richard Nickol, the co-defendant whom the complainant accused of the rape, to introduce evidence of an act of consensual intercourse between Richard and the complainant said to have occurred some two hours before the alleged rape. The trial court and a majority of Superior Court held that the proffered evidence was evidence of "past sexual conduct" which did not raise the issue of consent and thus was barred by the statute.

For the reasons which follow, we reverse and remand, holding that our Rape Shield Law does not bar the admission of evidence, such as that offered by appellant,

[ 503 Pa. Page 605]

    which is directly relevant to negate the act with which the defendant is charged. Evidence of acts of intercourse, which show that they, and not a rape, caused the objective signs of intercourse is relevant.*fn3 Considering current knowledge and notions of human sexuality, such use violates the rule of res inter alios acta underlying judicial relevance, which precludes use of a past act to show present conduct. Admitting such evidence for the limited purpose of denying the act charged properly balances the laudible goals of the statute and an accused's fundamental right to present in defense his own version of the facts under both the Sixth Amendment to the Federal Constitution and Article I, Section 9 of our Pennsylvania Constitution.*fn4

At trial the victim, Carol, testified that she had attended a dance in Wilkes-Barre on January 22, 1978, with a girlfriend. At about 10:40 P.M. she left. She saw defendant Richard Nickol standing beside a car owned by appellant. She asked Richard if he had seen her girlfriend. He replied that she had gone home, took her by the arm and put her in the back seat of the car, which drove off. Appellant drove. Gerald Nickol was in the front seat, and Carol and Richard in the back seat. Carol testified that Richard raped her while Gerald held her down; that Gerald tried to climb over the seat in order to rape her, but that she managed to push him away; that she was finally released about midnight, after which she went home and then to a hospital. Tests taken there revealed the presence of semen and live sperm in her vagina.

During the trial, defense counsel offered at sidebar to call Richard Nickol to testify that he and Carol went for a walk

[ 503 Pa. Page 606]

    and had consensual intercourse in a nearby packing garage about two hours earlier.*fn5 The Commonwealth objected on the ground that the evidence was inadmissible under the Rape Shield Law, 18 Pa.C.S. § 3104, particularly in view of defendant's failure to file a written motion under Section 3104(b).

The trial court sustained the Commonwealth's objection to any testimony about either Carol's prior sexual relationship with Richard or the events of the day in question, limiting the defense to evidence of what happened in the car. In excepting to the court's ruling, appellant's counsel stated that Richard's testimony was not offered to attack the victim's reputation for chastity, but to explain the presence of sperm and semen in the victim's vagina shown by medical tests. Thereafter, no evidence of any sexual activity by the victim was introduced at trial, with the exception of Gerald Nickol's testimony that his brother Richard had said he was having sexual relations with Carol. The Commonwealth objected to that remark and the court instructed the jury to disregard it. Thus, the evidence at trial amounted to Carol's testimony to her rape in the car, the medical evidence showing recent intercourse and the defendants' testimony denying that any act of intercourse took place in the car.

In rejecting appellant's contention that the trial court improperly interpreted the Rape Shield Law, a majority of Superior Court held that appellant's offer involved evidence of prior sexual conduct which the statute generally prohibits, not falling within the statutory exception permitting evidence of prior sexual ...

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