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09/18/97 COMMONWEALTH PENNSYLVANIA v. MICHAEL P.

September 18, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
MICHAEL P. WEBER, APPELLEE



Appeal from the Order of the Superior Court Entered April 11, 1996, at No. 2264 Philadelphia 1995, Reversing the Judgment of the Court of Common Pleas of Northampton County, Criminal Division, Entered May 25, 1995 at No. 470-1994, and Remanding for New Trial. Before: Flaherty, C.j., Zappala, Cappy, Castille, Nigro & Newman, JJ.

The opinion of the court was delivered by: Zappala

JUSTICE ZAPPALA

DECIDED: SEPTEMBER 18, 1997

On May 11, 1995, Michael Weber was convicted of statutory rape, rape, involuntary deviate sexual intercourse, and simple assault related to the sexual abuse of his daughter over a ten-year period. Weber was sentenced to an imprisonment term of twenty to forty years. On appeal, the Superior Court vacated the judgment of sentence and remanded the case for a new trial because it found that the trial court had erred in limiting defense counsel's closing argument. For the following reasons, we reverse the order of the Superior Court.

Prior to trial, Weber filed an omnibus motion for pre-trial relief requesting that he be permitted to introduce evidence of the fact that his daughter had an abortion in September, 1993. Weber asserted that the evidence was not precluded by the Rape Shield Law, 18 Pa.C.S. § 3104, because it would establish the bias of his daughter against him, since he would not have condoned the abortion, and it would be relevant to his defense of fabrication. At the hearing on the motion, Weber outlined his defense that his daughter fabricated the charges because she feared that Weber would find out about the abortion and administer corporal punishment, discontinue her financial aid for college, and take away her car. He argued that evidence that his daughter engaged in sexual intercourse with her boyfriend, resulting in the pregnancy that was terminated, would support this defense. The hearing Judge entered an order on March 3, 1995, stating that "the motion to permit inquiry into the proof of the abortion is denied without prejudice, to be exercised on defendant's application only if defendant can show the jury will have independent evidence of physical non-sexual assault on the victim which would engender a fabrication by victim in an effort to prevent future assaults."

In his opening statement to the jury, Weber's attorney informed them that it was the defense's contention that the sexual abuse had never occurred. Defense counsel asserted that the daughter had been motivated to fabricate her claim of sexual abuse because she wanted to avoid corporal punishment by her father and "would do and did do anything to get out of that." Defense counsel stated,

And the testimony will show in this case, and like it or not, the defendant has to face up to this point that -- my client did use and was a strict disciplinarian, corporal punishment, if you will. Whether that's good or bad is not the social issue which is going to be debated in this case. That's not what we're here for.

They'll [sic] be testimony bluntly from his son that Mr. Weber administered corporal punishment from fanny whackings to slaps in the face to both children over the years.

You're also going to see I am sure from the Commonwealth in this case a photograph which was taken, I believe, by Officer Achenbach. At least we have seen it at the preliminary hearing on November 20th of 1993 which depicts a bruise on [the daughter's], I believe, her left arm which occurred on November 12th of 1993.

We will admit that. The defendant will admit that to you because bluntly, ladies and gentlemen, you will have to decide in this case whether Mr. Weber did once or twice or maybe perhaps as many as 30 times, because that's the number of counts in front of you on simple assault, if he did, in fact, step over that line with regard to simple assault. And he'll tell you what he did.

N.T. May 8, 1995, p. 122. It appeared from the opening statement that Weber did not intend to dispute the fact that he had physically punished his daughter. Based upon this, the Commonwealth did not challenge the relevancy of the evidence of the abortion at the outset of the trial.

When Weber's daughter testified, she described being sexually assaulted by her father continuously over a ten-year period beginning when she was eight years old. The daughter testified that she was afraid that he would beat her if she refused to do what he demanded and that he had threatened to kill her and himself if she told anyone about the sexual abuse. She stated that her father used to beat her for any reason and that the physical and sexual abuse continued after she entered college. Although she lived in a college dormitory while attending school, her father required her to return home on the weekends. In November 1993, she told her college friends about her father's abuse and showed them bruises on her arm and leg that resulted from a recent beating that he had inflicted on her. The daughter then contacted the police and filed charges against Weber. Photographs of the daughter showing bruises to her arm and leg caused by the beating were introduced into evidence.

On cross-examination, the daughter testified that she had dated another teenager from January 1993 to the summer of 1994. When she discovered that she was pregnant in September 1993, she told her brother and his girlfriend and asked them not to tell her parents about the pregnancy or the fact that she had decided to have an abortion. Defense counsel also questioned her about a false report that she had made to the police department in 1990 in which she claimed that she was kidnapped from school by two Puerto Rican males. The daughter testified that she had made up the kidnapping story because school report cards were going to come out and she knew that her father would be mad at her.

Weber testified on his own behalf, claiming that except on rare occasion he only verbally disciplined his daughter. Weber testified that he spanked his daughter infrequently and that he only smacked her in the mouth as punishment twice when she swore at him. He denied ever throwing a glass at his daughter or striking her with a belt, attributing any bruises suffered by her to her involvement in martial arts. Rather than admitting to corporal punishment of his daughter, as anticipated after defense counsel's opening statement, Weber contradicted his daughter's claim of physical assaults by his own testimony and that of his wife, grandmother and mother who also testified that Weber rarely punished ...


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