No. 1144 Philadelphia 1984, Appeal from the Judgment of Sentence April 23, 1984, in the Court of Common Pleas of Lancaster County, Criminal No. 1885a of 1981.
J. Richard Gray, Lancaster, for appellant.
Louise G. Herr, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Olszewski, Del Sole and Johnson, JJ. Del Sole, J., files a dissenting opinion.
[ 341 Pa. Super. Page 551]
In this case, appellant, arguing that he was denied his constitutional right to cross-examine and confront his accuser, requests discharge or a new trial. He also argues the evidence was insufficient to sustain his conviction for simple assault, and that the procedures used in charging him were faulty. After carefully considering the opinion of the lower court, the pertinent statutes, and the public policies at stake, we affirm the judgment of sentence.
The facts of this case are not pleasant. On September 28, 1981, state police arrested appellant and charged him with rape, involuntary deviate sexual intercourse, incest and
[ 341 Pa. Super. Page 552]
simple assault. The complaining witness, appellant's daughter, told police that after a late-night fight with his girlfriend, her intoxicated father came into her bedroom and forced her to submit to sexual intercourse and deviate sexual intercourse. She reported that he struck her when she initially refused. After he had gone back to his room, she escaped to a neighbor's house and was treated at a local hospital. Police arrested appellant the next day.
Before trial, appellant moved to dismiss, arguing lack of jurisdiction, because the district attorney had failed to sign the information. The court granted his motion, and promptly re-arraigned appellant on identical charges contained in a new, properly signed information.*fn1 In another pre-trial motion, this one in limine, appellant moved the court to bar the Commonwealth from introducing certain physical evidence tending to show intercourse had occurred. Alternatively, in the event the court would refuse to bar admission of the disputed evidence, appellant requested permission to introduce evidence that the complaining witness had engaged in sexual relations with a person other than the defendant prior to the night in question, and to cross-examine her as to prior sexual activities. The court considered the motion and denied it, finding that the Pennsylvania Rape Shield Law, 18 Pa.C.S.Sec. 3104 (Purdon's 1983), barred the admission of the evidence and the proposed cross-examination.
The Admissibility of the Evidence
Appellant's argument centers on the Supreme Court's holding in Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983). In that case, the Supreme Court held it was permissible for the defense to adduce testimony that the victim had engaged in intercourse with a third ...