Appeal form the Order of the Superior Court dated March 4, 1988, at No. 584 PGH 1987, affirming the Judgment of Sentence dated April 22, 1987, in the Court of Common Pleas of Westmoreland County, Criminal Division, at No. 1531 C 1984. 377 Pa. Super. 654, 541 A.2d 1152 (1988).
Gary Robert Fine, Wiker & Fine, Greensburg, for appellant.
John J. Driscoll, Dist. Atty., Rita Donovan Hathaway, Asst. Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen and Papadakos, JJ., join this Opinion in Support of Affirmance. McDermott, J., files an Opinion in Support of Reversal in which Nix, C.j., and Zappala, J., join.
Decision of Lower Court Affirmed Without Opinion.
Opinion IN SUPPORT OF AFFIRMANCE
This appeal raises again the issue of when the Rape Shield Law bars evidence of consensual sexual relations which occurred shortly before an alleged rape. Appellant argues that he was improperly precluded from introducing evidence of prior relations between himself and the prosecutrix to explain the objective signs of intercourse. We would hold that appellant failed to overcome the bar of the Rape Shield Law, and would therefore affirm.
John McLain, the appellant, was charged with rape, assault, and false imprisonment. The prosecutrix was a slightly retarded woman who lived in appellant's bedroom in a household consisting of appellant's mother, brother, and the couple. The prosecutrix claimed that on or about July 5, 1984, appellant and his brother Roger beat her, raped her, and left her locked in a bedroom, from whence she escaped through a window.
At the time of trial, appellant's counsel filed a motion and offer of proof regarding prior consensual relations between appellant and the prosecutrix. Counsel stated that, until the prosecutrix testified, he could not specify precisely how such testimony would be admissible under the Rape Shield Law, as there was confusion as to the exact date when the alleged rape occurred. Counsel did not assert a defense based on consent, but rather denied that any sexual acts occurred on July 5 or 6, 1984. The trial court therefore ruled, without holding an in-camera evidentiary hearing, that the proferred testimony was inadmissible under the Rape Shield Law, which permits evidence of an alleged victim's past sexual conduct with the defendant only when
consent of the alleged victim is at issue. 18 Pa.C.S. § 3104(a).*fn1
The background of the incident was developed at appellant's trial. For many months prior to July, 1984, the prosecutrix visited appellant's home, often in the company of her sister Sharon who was a close friend of appellant's brother Roger. They visited virtually every weekend, usually staying the entire weekend and sometimes longer. On or about June 1, 1984, the prosecutrix moved into appellant's home and established her residence in appellant's bedroom. She valued the freedom she enjoyed with appellant's family over the strictures imposed by her own mother. On June 5, 1984, and once again later in the month, the prosecutrix's mother contacted the Pennsylvania State Police concerning the welfare of her daughter, and Trooper Graham was detailed to investigate. Twice he visited appellant's home and interviewed the prosecutrix to determine whether she was under duress, and concluded that she was happy in the circumstances and was voluntarily living with appellant. The prosecutrix enjoyed the efforts of appellant and his ...