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filed: October 16, 1989.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 87-04-758-759 & 761.


Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellant.

Deborah H. Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Cirillo, President Judge, and Brosky, Rowley, McEwen, Olszewski, Tamilia, Popovich, Johnson and Melinson, JJ. Concurring opinion by Johnson, J., in which Melinson, J. joins. Dissenting statement by Popovich, J.

Author: Tamilia

[ 389 Pa. Super. Page 186]

Appellant, Richard Johnson, was convicted by a jury of rape, indecent assault and corrupting the morals of a minor in connection with an incident in which he forced the ten year old complainant to engage in sexual intercourse. He was sentenced to the mandatory five to ten year term of

[ 389 Pa. Super. Page 187]

    incarceration for rape.*fn1 No sentence was imposed on the remaining offenses. Johnson now appeals the judgment of sentence and argues he should have been permitted to introduce evidence of a prior nonconsensual sexual assault against the victim. This evidence was disallowed by the trial court because of the Rape Shield Law, 18 Pa.C.S. ยง 3104. The panel originally assigned this case certified it to the Court en banc for resolution of the issue of whether the Rape Shield Law bars the admission of evidence of the victim's prior nonconsensual sexual conduct.

Nicole S. was ten years old when she was raped by appellant, then nineteen years old. On March 22, 1987, during the afternoon hours, Nicole was playing with Tavona Johnson, appellant's niece, on the front porch of Tavona's home when appellant came from the house and asked the victim to meet him in a park across the street. After meeting her, appellant took Nicole into a secluded area behind some bushes, laid her down on the grass, pulled down both of their pants and forced Nicole to engage in sexual intercourse.

A twelve year old neighbor, Hameen Crawley, watched Nicole enter the park pursued by appellant. Hameen followed them and observed the rape in progress. He shouted, "I got you", at which point appellant pulled up his pants. Hameen slapped the victim on the back of her head and threatened to tell her mother. Hameen and appellant argued, appellant threatened Hameen and the victim began to cry. She then left the park and returned to the house where she again began to play with Tavona.

While the girls were talking, Hameen called the victim to where he and another boy, Donyell Gambrell, were standing and Nicole confirmed to Donyell the account of the rape described to him by Hameen. Donyell told his mother what had occurred, who then informed the victim's mother, who immediately told Nicole to return home. When the victim arrived home and was asked about the incident, she screamed and cried, "He made me do it, he made me do it."

[ 389 Pa. Super. Page 188]

The police were called and took Nicole to the hospital where a medical examination revealed the victim's genital area was red and swollen and her vaginal orifice was enlarged. Expert medical testimony confirmed that the condition was consistent with sexual penetration and rape.

On appeal, appellant argues he should have been allowed to introduce evidence that the victim, some time in the past, had told Tavona Johnson that a year or two prior to the instant assault, Hameen had sexually molested her. Appellant argues this evidence was admissible to impeach Hameen's eyewitness testimony in support of his exculpatory theory which blames Hameen for the assault, providing an explanation for the physical evidence that the victim had recent sexual contact. The statement would bolster the theory that Hameen was a biased witness, who had intimidated Nicole to blame appellant. At an in camera hearing, the testimony elicited from Tavona was such that the touching would have occurred one to three years earlier. Appellant argues the excluded testimony should have been admitted because it was related to prior nonconsensual sexual contact and was therefore not barred within the meaning of the Rape Shield Law. He claims the trial court misapplied the Rape Shield Law in that his defense required introduction of testimony that Hameen had some time earlier assaulted the victim and urges the Shield Law applies only to "volitional" sexual conduct and that "assaultive" sexual conduct does not trigger application of the Law.

While this issue is new to the Court en banc, it has previously been determined in panel decisions that assaultive sexual activity is covered by the Rape Shield Law, Commonwealth v. Troy, 381 Pa. Super. 326, 553 A.2d 992 (1989), and Commonwealth v. Coia, 342 Pa. Super. 358, 492 A.2d 1159 (1985). In both cases, attempts were made to introduce testimony concerning previous sexual assaults, and this Court affirmed the trial judge's denial to do so under the Shield Law. While the Shield Law was enacted primarily to prevent establishment of an unwarranted nexus between the victims reputation for chastity and her

[ 389 Pa. Super. Page 189]

    veracity, it is equally applicable because prior sexual conduct is irrelevant to a subsequent assault. There is no reason to believe the legislature intended to except nonconsensual sexual conduct from this bar. While the primary reason has to do with lack of relevancy, there is also a persistent belief among some people that a woman or girl would not be assaulted unless she provoked the assault by acting promiscuously or deliberately placed herself in a situation where an assault could be anticipated. This is particularly so when the parties are known to each other. We have not yet completely disabused the public mind of the perception that an assault victim is somehow to blame for the assault, and this is even more so with child victims who, due to naivete or poor supervision, find themselves unprotected and dangerously vulnerable.

Relevancy may arise in the context of the proximity of the prior sexual assault or volitional intercourse to the incident which is basis for the charge, if it was so close in time as to be exculpatory to the defendant and plausibly accounts for the trauma exhibited by the victim. Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983). Appellant in his original brief would attempt to bring the facts of this case within the purview of Commonwealth v. Black, 337 Pa. Super. 548, 487 A.2d 396 (1985), which relied on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (juvenile Act which prohibits admission of a witnesses prior juvenile record must give way to a defendant's sixth amendment right to confrontation of a witness when bias is an issue) which held the Rape Shield Law must give way to a defendant's sixth amendment right to confrontation of a witness, when it is necessary to probe into the possible bias in the testimony of a crucial witness. In Black the trial court, on remand, was directed to hold a hearing to determine whether the evidence offered would support the claim of bias before a new trial was granted. Appellant, in his supplemental brief, relies on State of Washington v. Peterson, 35 Wash.App. 481, 667 P.2d 645 (1983), and State of Washington v. Carver, 37 Wash.App. 122,

[ 389 Pa. Super. Page 190678]

P.2d 842 (1984), for the proposition that abuse of the victim by other persons is not misconduct which would reflect on the victim and, therefore, is not excludable under the Shield Law.

Summarizing each of these arguments, we perceive at least three categories of factual situations against which the Shield Law may be tested as to its application:

1. Those factual situations in which the victim has engaged in prior consensual sexual activity unrelated to the present charge;

2. Those factual situations in which the victim has been previously sexually assaulted or abused by persons unconnected with the present charge; and

3. Those factual situations in which the victim has been sexually assaulted previously by a ...

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