No. 706 Pittsburgh, 1983, Appeal from Order of the Court of Common Pleas, Criminal Division, of Butler County, No. C.A. 202 of 1982, Book 73, Page 298.
Peter Henry Shaffer, Butler, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Rowley, Wieand and Hester, JJ.
[ 324 Pa. Super. Page 25]
In a jury trial where the charges were rape, involuntary deviate sexual intercourse and simple assault, the trial court disallowed the defendant's testimony regarding his prior sexual contacts with the alleged victim for the sole reason that the trial judge did not believe such testimony. The defendant was found guilty, post verdict motions were denied, and defendant was sentenced to a lengthy term of imprisonment. This appeal followed. We reverse and remand for a new trial.
On the morning of March 17, 1982, Sharon Kerlin, the alleged victim, and Leo A. Baronner, the appellant, engaged
[ 324 Pa. Super. Page 26]
in sexual activity in an apartment which they shared with other persons. Sharon Kerlin testified that she had been forcibly compelled to engage in natural and deviate sexual intercourse. Appellant contended, however, that Sharon's participation in the sexual encounter had been consensual. He offered to prove in support of his contention that he and Sharon had been sexually intimate on several prior occasions. Pursuant to the Rape Shield Law of May 18, 1976, P.L. 120, No. 53, 18 Pa.C.S. § 3104, he filed a written motion and offer of proof regarding such prior sexual conduct.*fn1 The trial court held an in camera hearing at which appellant's testimony was countered by testimony from the alleged victim that although she and appellant had dated on prior occasions, they had not previously engaged in sexual intercourse. Based on this testimony, appellant's offer of proof was rejected, and he was not permitted to give trial testimony of Sharon Kerlin's prior sexual conduct with appellant. The reason given by the trial court for the evidentiary ruling was: "The matter reduces itself to a matter of credibility and this Court elects to believe Sharon Kerlin."
The credibility of appellant's consent defense, however, was for the jury. It was not for the trial judge to reject relevant trial testimony and keep it from the jury merely because he did not believe it. The purpose of the in camera hearing required by the Rape Shield Law is to enable a trial court to determine whether tendered defense evidence of the victim's prior sexual activity is relevant and admissible. This procedure is intended to provide the trial court with the means to eliminate "confusion of issues at
[ 324 Pa. Super. Page 27]
trial and needless embarrassment of the prosecutrix by excluding irrelevant . . . evidence concerning the prosecutrix's prior sexual behavior." Commonwealth v. Strube, 274 Pa. Super. 199, 218, 418 A.2d 365, 375 (1979) (Concurring Opinion by Spaeth, J.). The hearing is not intended to afford the trial judge an opportunity to determine the credibility of a tendered defense. If the evidence offered by the defense is relevant and admissible under applicable rules of evidence, the trial court is required to receive such evidence and permit the jury to assess its credibility.
In Reichman v. Wallach, 306 Pa. Super. 177, 452 A.2d 501 (1982), this Court reviewed pertinent authority pertaining to relevancy of ...