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COMMONWEALTH PENNSYLVANIA v. BRANDON LEE LYONS (07/07/87)

filed: July 7, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
BRANDON LEE LYONS, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Erie County, Criminal Division, No. 732 of 1985.

COUNSEL

Bruce L. Getsinger, Erie, for appellant.

Tim Lucas, Assistant District Attorney, Erie, for Com., appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ.

Author: Tamilia

[ 364 Pa. Super. Page 621]

After a trial by jury, appellant was convicted of one count each of statutory rape, 18 Pa.C.S. § 3122, involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123, and corruption of minors, 18 Pa.C.S. § 6301. On December 16, 1985, the trial court denied appellant's timely post-trial motions and subsequently sentenced him to five (5) to ten (10) years imprisonment for the involuntary deviate sexual intercourse conviction, a concurrent term of ten (10) years probation for the statutory rape conviction, and a concurrent term of five (5) years probation for the corruption of minors conviction, plus the costs of prosecution. Appellant filed a motion to reconsider and modify sentence, which was denied by Order

[ 364 Pa. Super. Page 622]

    dated April 8, 1986. A timely appeal to this Court was taken on April 11, 1986.*fn1

Briefly stated, the facts are as follows. Appellant's convictions were the result of an incident occurring at his home on May 21, 1985. The victim, Rahdia Henderson, was twelve years old at the time and appellant eighteen years old. According to testimony at trial, the victim had skipped school that day and went to the home of one Tyrone Martin, where she had a telephone conversation with appellant, after which she went to appellant's house. At appellant's home, appellant and Rahdia engaged in sexual intercourse and oral sex. Rahdia left appellant's home during the afternoon. The next day, on May 22, 1985, Rahdia's grandmother was informed that she had been skipping school. When confronted by the grandmother, Rahdia told her that she had had intercourse with appellant, whereupon, the grandmother immediately took Rahdia to the hospital and notified the police. Appellant's principal defense at trial is that he never had any sexual activity with Rahdia.

Appellant's first claim on appeal is that the trial court erred in refusing to allow appellant's trial counsel to question the victim concerning her alleged sexual conduct on the day after the incident in question. In order for appellant to be allowed such cross-examination, he must fall within the exception detailed in the Pennsylvania Rape Shield Law, 18 Pa.C.S. § 3104(a), which provides as follows:

(a) General rule. -- Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

[ 364 Pa. Super. Page 623]

Since appellant was charged and convicted of statutory rape, the victim's consent is not at issue here. However, appellant argues that the victim's past sexual conduct should still be admissible to explain ...


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