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Commonwealth v. K.S.F.

Superior Court of Pennsylvania

October 8, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
K.S.F., Appellant

Argued May 21, 2014

Page 481

Appeal from the Order of the Court of Common Pleas, Montgomery County, Criminal Division, No(s): CP-46-CR-0003335-2010. Before BRANCA, J.

Elizabeth L. Lippy, North Wales, for appellant.

Charles J. Giambrone, Jr., for Commonwealth, appellee.

BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

OPINION

Page 482

LAZARUS, J.

K.S.F. appeals from the order entered in the Court of Common Pleas of Montgomery County reinstating his sentence following this Court's remand for an in camera hearing to determine admissibility of a Facebook post bye the complainant, K.S.F.'s minor stepdaughter (" Stepdaughter" ). After careful review, we reverse and remand for a new trial.

In August 2011, a jury convicted K.S.F. of the following sexual crimes against Stepdaughter: four counts of involuntary deviate sexual intercourse with a child; [1] three counts of involuntary deviate sexual intercourse - complainant less than 16 years of age; [2] four counts of statutory sexual assault; [3] five counts of indecent assault - complainant less than 13 years of age; [4] three counts of indecent assault - complainant less than 16 years of age; [5] and one count of corruption of a minor.[6] Prior to trial, K.S.F. filed a motion to access Stepdaughter's two profiles on the social networking website Facebook. K.S.F. alleged one of Stepdaughter's profiles contained impeachable material, in which Stepdaughter described herself as a " virgin." At that time, K.S.F. could not access Stepdaughter's postings due to privacy settings. The trial court ruled the evidence inadmissible, stating:

[E]vidence that Stepdaughter posted she was a " virgin," fell within the ambit of the Rape Shield Law and that a teenage girl posting that she was a " virgin," despite being sexually abused by her Stepfather[,] was a self-characterization that did not have significant enough probative value as to the credibility of her claimed abuse by [K.S.F.] to overcome the Rape Shield Law barrier.

Trial Court Opinion on Remand, 10/28/13, at 5. See also Trial Court Opinion, 7/13/12, at 8-13; 18 Pa.C.S. § 3104.

Following his conviction, the court determined K.S.F. to be a sexually violent predator, and sentenced him to an aggregate term of 12 to 24 years' incarceration. On direct appeal, this Court vacated and remanded, instructing the trial court to hold an in camera hearing and apply the three-prong balancing test outlined in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396, 401 (Pa. Super. 1985), after which the trial court could grant a new trial or reinstate the judgment of sentence. See Commonwealth v. K.S.F., 2497 EDA 2011, slip op. at 20-26 (Pa. Super., filed April 12, 2013).

The trial court held an in camera Black hearing on June 26, 2013. Stepdaughter testified that when she wrote on Facebook that she had never had sex before, she meant she had never had consensual sex. The trial court subsequently ...


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