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COMMONWEALTH PENNSYLVANIA v. EDWARD GEORGE JORGENSON (11/20/86)

decided: November 20, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
EDWARD GEORGE JORGENSON, APPELLANT



Appeal From Judgment Of The Superior Court of Pennsylvania, No. 1144 Philadelphia 1984, Affirming The Judgment Of Sentence Entered on April 23, 1984, In The Court of Common Pleas of Lancaster County, Pennsylvania, Criminal, No. 1885(a) Of 1981. 341 Pa. Superior 546, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a dissenting opinion. Papadakos, J., filed a dissenting opinion in which Larsen and Hutchinson, JJ., joined.

Author: Zappala

[ 512 Pa. Page 602]

OPINION OF THE COURT

This appeal arises out of the Appellant's conviction of rape, indecent sexual assault, and simple assault. Prior to trial the Appellant filed a motion in limine requesting that the court exclude evidence of seminal acid phosphatase found in a pair of black panties worn by the victim the night of the alleged rape and the testimony of the emergency room physician who examined the victim and found her to be internally bruised. The purpose of the motion was to exclude this evidence because of the Appellant's perception that the Rape Shield Law, Act of May 18, 1976, P.L. 120, No. 53 § 1, 18 Pa.C.S.A. § 3104 barred the explanatory

[ 512 Pa. Page 603]

    testimony required to rebut the Commonwealth's evidence.*fn1 Prior to the commencement of trial, counsel for the Appellant and the Commonwealth requested a hearing on the motion, specifically for the court to consider the testimony of a witness who allegedly had sexual relations with the victim around the time of the alleged rape. Without taking any testimony, the trial court denied the motion citing Commonwealth v. Duncan, 279 Pa. Super. 395, 421 A.2d 257 (1980).*fn2 Thereafter the Appellant was convicted. Timely post-trial motions were filed asserting that the trial court erred in denying the Appellant's motion in limine, and were denied by the trial court. Superior Court affirmed (Olszewski and Johnson, Del Sole dissenting). We granted allocatur to review the use of the Rape Shield Law in this instance in light of Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983) and now reverse.

In Majorana, the defendant attempted to introduce evidence of a sexual encounter between the victim and himself two hours before the victim was allegedly raped. The purpose of the evidence was not to question the victim's chastity but to explain the presence of semen in the victim's body. Both the trial court and the Superior Court refused

[ 512 Pa. Page 604]

    to permit the admission of this evidence based upon the Rape Shield Law. In reversing we stated:

We do not believe the legislature intended to prohibit relevant evidence which directly negates the act of intercourse with which a defendant is charged. Where, as here, a defendant offers evidence of intercourse close enough in time to the act with which he is charged that it is relevant to explain the presence of objective signs of intercourse, the protections afforded to the complainant by the Rape Shield Law do not apply. Such evidence should be admitted, subject to the usual rules of admissibility of evidence, in particular the balancing of probative value against prejudicial effect.

Such an interpretation is consistent with the goals of the Rape Shield Law in protecting the victim's reputation and does not deny the defendant's right to introduce relevant evidence in his own defense. Cases where consent is genuinely "at issue" are treated according to the exception set forth in the statute. However, in cases such as that which we have here, where denial of the act, not consent is at issue, evidence of consensual intercourse between defendant and complainant is limited to evidence of an act close enough in time to account for the objective signs of intercourse and is further limited to the purpose of explaining the presence of those objective signs. However, a defendant cannot engage in the wide-ranging and harassing cross examination the statute legitimately prohibits.

Thus, the Rape Shield Law does not preclude appellant from explaining the presence of semen and sperm in the victim's body. The act offered in explanation was not a prior "separate incident" but an alternative account of the events of that evening offered to counter the prosecution's medical testimony. For that limited purpose it was admissible. To hold otherwise would deny appellant the chance to defend by presenting a denial of the prosecution's case.

[ 512 Pa. Page 605503]

Pa. at 611, 470 A.2d at 84-85. Thus, we permitted the defendant's testimony to explain the reasons for the ...


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