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[U] Commonwealth v. Butz

Superior Court of Pennsylvania

February 27, 2014



Appeal from the Judgment of Sentence March 15, 2013 In the Court of Common Pleas of Luzerne County Criminal Division No(s).: CP-40-CR-0002488-2011




Appellant, John Wayne Butz, appeals from the judgment of sentence entered in the Luzerne County Court of Common Pleas. He alleges the trial court erred by excluding certain evidence under the Rape Shield Law.[1] We affirm.

The trial court summarized the procedural posture of this case as follows:

A jury trial commenced on October 22, 2012, and the jury returned their verdict on October 24, 2012, when
[Appellant] was found guilty [of Rape of a Child, [2]Involuntary Deviate Sexual Intercourse (person less than sixteen years old), [3] Statutory Sexual Assault, [4] Aggravated Indecent Assault (complainant less than sixteen years old), [5] Indecent Assault (complainant less than thirteen years old), [6] and Corruption of Minors.[7] A presentence investigation (PSI) was Ordered . . . .
On March 15, 2013, [Appellant] appeared before this Court for imposition of sentence. . . . We thereafter sentenced [Appellant] to an aggregate prison term of twenty two (22) to forty four (44) years' incarceration to be served in a state correctional institution and deemed [Appellant] to be a sexually violent predator.

Trial Ct. Op., 7/18/13, at 1-2 (unpaginated) (citation omitted). This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion.

Appellant raises the following issue for our review: "Whether the trial court erred by excluding under the Rape Shield Law[8] evidence that the Complainant's father had sexually assaulted her where evidence of prior sexual assaults is not protected by the Rape Shield Law and the evidence was relevant and material?" Appellant's Brief at 1. Appellant contends this evidence "is relevant to establish an alternate identity of her abuser and to demonstrate a motive to fabricate." Id. at 6. Appellant avers the trial court erred in excluding this evidence based upon Commonwealth v. Gaddis, 639 A.2d 462 (Pa.Super. 1994), [9] given the holding of the Pennsylvania Supreme Court in Commonwealth v. Johnson, 638 A.2d 940 (Pa. 1994). Id. He contends that eight witnesses would have testified that Complainant reported her father was abusing her during the same time period that the abuse by Appellant was alleged to have taken place. Id. at 7.

We state the relevant standard of review: "The admissibility of evidence is a matter solely within the discretion of the trial court." Johnson, 638 A.2d at 942. In Johnson, the Supreme Court held:

Even though the Rape Shield Law did not bar [testimony that a victim had been subject to a previous sexual assault], that testimony does not automatically become admissible. The question then becomes whether the testimony is relevant and material under the traditional rules of evidence.

Id. [10] The Supreme Court found the evidence that the alleged victim told a third party that she was the victim of a prior sexual assault was inadmissible hearsay neither carrying any indicia of reliability nor having any bearing "upon a matter in issue in [the] case." Id. at 943. Furthermore, "the declarant denie[d] ever making the statement." Id.

Instantly, the trial court opined:

At a pre-trial hearing on October 1, 2012, this Court heard argument relative to [Appellant's] motion to seek the admission of evidence of prior sexual conduct of the victim with her natural father. Defense counsel proffered that on numerous occasions prior to the incidents which gave rise to the instant matter, the minor victim told friends and relatives that she was having sex with her father. This allegation was denied by the Assistant District Attorney who advised this court that the minor victim would deny making such statements. . . .
As we stated at the time of the pre-trial hearing, assuming arguendo that the victim was having sexual relations with her father or anyone else for that matter, said evidence is not relevant to the issues on trial in the instant case. The proffered evidence would need to show that the victim was motivated by a bias or hostility toward this [Appellant]. Defense counsel's only argument to establish a correlation between the victim's alleged sexual relations with her father and [Appellant] was that the victim did not want to get her father in trouble, therefore, she accused [Appellant] of raping her. Said argument is tenuous at best. Further, the Assistant District Attorney made it clear that there was no police investigation or Children & Youth investigation of the victim's father. As such, if the victim is not aware of an investigation of her father, why would she make allegations against [Appellant] to thwart an investigation of her father which does not even exist?

Trial Ct. Op. at 3-4 (unpaginated). The trial court concluded that the evidence was "irrelevant to the issues properly being tried before the jury." Id. at 6-7. We discern no abuse of discretion and agree no relief is due. See Johnson, 638 A.2d at 942.

Judgment of sentence affirmed.

Wecht, J. concurs in the result.

Judgment Entered.

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