No. 00015 Pittsburgh, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lawrence County at Nos. 183, 183B, C. D of 1980.
David H. Acker, Public Defender, New Castle, for appellant.
William A. Behe, Deputy Attorney Gen., Harrisburg, for Commonwealth, appellee.
Spaeth, President Judge, and Cavanaugh, Wieand, Cirillo, Montemuro, Popovich and Hoffman, JJ. Popovich, J., concurs in the result of the opinion. Wieand, J., files concurring and dissenting opinion. Cirillo and Montemuro, JJ., join concurring and dissenting opinion by Wieand, J.
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Appellant, 48-year-old Darrell L. Black, was charged with statutory rape,*fn1 corruption of minors,*fn2 incest,*fn3 and attempted involuntary deviate sexual intercourse*fn4 with respect to his thirteen-year-old daughter, Cynthia. After a jury trial, he was found guilty of all counts and sentenced to a term of
[ 337 Pa. Super. Page 551]
imprisonment of two and one-half to five years.*fn5 This appeal followed. Appellant challenges the lower court's application of Pennsylvania's Rape Shield Law, 18 Pa.C.S. § 3104,*fn6 which prevented him from introducing evidence of prosecutrix' prior sexual conduct with one of her brothers. We agree with appellant and remand for a new trial.
Black was accused of committing the present offenses during the 1979 Christmas holiday season. The trial testimony revealed that during this time appellant resided with his family, including prosecutrix, in a four- or five-bedroom, single family dwelling. On the night in question, the house was filled beyond capacity by out-of-town guests, bringing the total number of occupants to twelve or thirteen persons. The minor prosecutrix testified as follows. After everyone had retired for the evening, her father asked her to come into his bedroom to massage his legs, a treatment required by his diabetic condition and routinely performed by members of his family in his bedroom. She agreed to do this and after she finished, he motioned her to lie down on the bed with her back toward him. He then pulled her underwear down and had sexual intercourse with her. The victim maintained that the entire sexual episode occurred without a word being spoken.
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Appellant's version of the events that evening was that although his daughter was present in his room, no sexual contact occurred. As is common in sexual offense cases, the prosecutrix and appellant provided the only direct evidence for their respective versions and the case thus turned on their comparative credibility.
While the sexual incident was found to have occurred during Christmas, 1979, testimony indicated that Cynthia's complaints began to surface almost three months later, near the end of March, 1980. These complaints coincided with violent arguments between appellant and prosecutrix' fifteen-year-old brother, which culminated in the brother leaving home and separating from the family, including prosecutrix. Cynthia admitted wanting her brother back in the home, and other testimony indicated that as soon as appellant was arrested and removed, the fifteen-year-old brother contacted the family and sought to return home. In his defense, appellant offered to show through cross-examination that Cynthia had maintained an ongoing, consensual sexual relationship with this brother, which ended when the brother left home. Appellant contends that the true extent of prosecutrix' bias against him could only be revealed by showing the abnormal, sexual relationship which she had with her brother and which had been terminated by appellant's dispute with her brother. Specifically, appellant urges that Cynthia's testimony can only be weighed fairly when measured against her desire, first, to punish appellant for his interference with her sexual relationship with her brother, and, second, to remove appellant from the home so that her brother might return and resume the relationship. As noted above, the lower court excluded this evidence of prosecutrix' prior sexual conduct with her brother, relying on the Rape Shield Law.
We begin by noting the modern rule that prior sexual conduct with third persons is ordinarily inadmissible to attack the character of the prosecutrix in sex offense cases. 1A Wigmore, Evidence § 62 (Tillers rev. 1983). However, in this case the evidence of prior sexual conduct was not
[ 337 Pa. Super. Page 553]
offered merely to show any general moral turpitude or defect of the prosecutrix, but rather to reveal a specific bias against and hostility toward appellant and a motive to seek retribution by, perhaps, false accusation. Particularly, appellant contends, if a parent and child were simply quarrelling, one would not normally expect a sibling to harbor a strong bias against the parent and in favor of the child. However, as appellant suggests, an ongoing, consensual sexual relationship between Cynthia and her brother would be a telling factor in understanding where her allegiance lay. In this regard, it is well settled that a party has the right to show by cross-examination that an adverse witness has a bias against him, or otherwise has an interest in the outcome of the trial. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Ervin, 262 Pa. Super. 322, 396 A.2d 776 (1978); 3A Wigmore, Evidence § 948 (Chadbourn rev. 1970).
In contrast to the broad, common law rule permitting cross-examination to show bias, we are confronted with Pennsylvania's Rape Shield Law, which provides, in pertinent part, that "[e]vidence of specific instances of the alleged victim's past sexual conduct, . . . shall not be admissible in prosecutions under [Chapter 31] . . .", relating to sexual offenses. 18 Pa.C.S. § 3104(a).*fn7 The lower court relied on this plain statutory language, as well as our ...