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COMMONWEALTH PENNSYLVANIA v. MICHAEL D. WALKER (05/30/89)

filed: May 30, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL D. WALKER, APPELLANT



Appeal from the Judgment of Sentence of February 9, 1988 in the Court of Common Pleas of Centre County, Criminal Division, at No. 1987 - 569.

COUNSEL

Deborah T. Lux, Assistant Public Defender, Bellefonte, for appellant.

M. Eileen Tucker, Assistant District Attorney, Bellefonte, for Com.

Montemuro, Hoffman and Cercone, JJ. Cercone, J., concurs in the result of the opinion by Hoffman, J. Montemuro, J., files a dissenting opinion.

Author: Hoffman

[ 384 Pa. Super. Page 565]

This appeal is from the judgment of sentence for rape, involuntary deviate sexual intercourse, indecent assault, recklessly endangering another person, unlawful restraint, and simple assault. Appellant raises a number of issues concerning the trial court's limiting his cross-examination of the complainant. Specifically, appellant contends that the trial court erred in refusing to allow him to (1) question the complainant concerning her prior sexual conduct; (2) question the complainant with regard to the fact that (a) she was on probation and parole and (b) there were other charges pending against her; and (3) impeach the complainant's credibility based on her prior conviction for criminal trespass. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.

On August 24, 1987, a jury found appellant guilty of the above-referenced charges. Post verdict motions were timely filed and denied, and, on February 9, 1988, appellant was sentenced to concurrent five-to-fifteen-year terms of imprisonment for rape and involuntary deviate sexual intercourse. The court determined that the remaining charges merged for sentencing purposes. Appellant's motion to modify sentence was timely filed and denied, and this appeal followed.

Appellant asserts nine claims of error, but because of our disposition of this appeal, we address only his claims regarding the court's restricting his cross-examination of the complainant.*fn1 Appellant first argues that the trial

[ 384 Pa. Super. Page 566]

    court erred in refusing to allow him to question the complainant concerning her prior sexual conduct. Appellant claims that Pennsylvania's Rape Shield Law, see 18 Pa.C.S.A. § 3104, does not bar the admission of this evidence because it was offered not to attack the complainant's chastity but to explain the presence of objective signs of sexual intercourse.*fn2 After carefully reviewing the record and appellant's brief, we conclude that the trial court has properly disposed of this contention in its opinion. Accordingly, we affirm the disposition of this issue on the basis of that opinion.

Appellant next argues that the trial court erred in refusing to allow him to question the complainant with regard to the fact that (1) she was on probation and parole and (2) there were charges pending against her at the time of trial. Appellant maintains that this evidence was admissible to show the complainant's potential bias. In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), our Supreme Court articulated the standard to be applied when a criminal defendant seeks to cross-examine a prosecution witness about his or her criminal record in order to show motive or bias. The Court held that:

     whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness ...


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