No. 12 W.D. Appeal Docket, 1984, Appeal from the Order of the Superior Court of Pennsylvania at No. 136 Pittsburgh, 1981, dated September 16, 1983, denying Reargument of the Decision and Order of the Superior Court of Pennsylvania dated July 15, 1983, vacating the Judgment of Sentence dated January 19, 1981, of the Court of Common Pleas of Mercer County, Criminal Division, at No. 45 Criminal 1980,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, McDermott and Papadakos, JJ., join in this opinion of the court. Nix, C.j., files a concurring Opinion in which Zappala, J., joins. Hutchinson, J., files a concurring opinion.
This appeal concerns the admissibility of a statement made by appellee (the defendant) to his victim, during the commission of a sexual assault, to the effect that he had a prior criminal conviction for rape. For the reasons which follow, we conclude that the Superior Court erred in holding that this evidence should have been excluded, and we, therefore, reverse.
In this case, appellee was convicted of rape, involuntary deviate sexual relations and simple assault, all arising from the sexual assault of his wife's sister in 1979. According to the victim, during the rape episode appellee placed her in
fear and intimidated her by telling her that he had previously served time in jail for rape, by threatening her with a gun, and by grabbing her and throwing her onto a bed prior to engaging in various sexual acts with her. Prior to trial, appellee filed a motion seeking to bar 1) the introduction at trial of his prior criminal record and 2) the introduction of testimony containing references to the statement he made to the victim during the commission of this crime, to the effect that he had a prior conviction for rape. After an extensive hearing on the motion, the court held that the Commonwealth could not introduce appellee's criminal record during its case in chief or during cross-examination of appellee, but that the victim would be permitted to testify with reference to the statement appellee made to her about his prior conviction.
At trial, appellee admitted that during this episode he engaged in various sexual acts with the victim, but claimed that all of those acts were with the victim's consent. During the trial, no reference was ever made to appellee's criminal record in general. However, the Commonwealth, over appellee's objection, did introduce the victim's testimony concerning appellee's statement to her about his prior conviction for rape to prove that the sexual acts which occurred during the rape episode were the result of force and threats on the part of appellee and not consent on the part of the victim. The victim testified as follows:
BY MR. MOORE [for the Commonwealth]:
Q. And what, if anything, further did he say to you?
A. He said that I had -- he said that I better not try to get away or to scream or holler because if I did he would shoot me and anybody else who got in his way and hopefully that if the police came that he would get killed too because he would never go back to jail again.
Q. Now you said something about his saying that he had been in jail. Is that right?
A. He told me that he was, yes.
Q. Did you know yourself prior to that that he was in jail?
Q. Did you know why he had been in jail?
Q. Did he tell you why he had been in jail?
Q. What did he tell you about being in jail?
A. He told me he was in jail before ...