Com. v. Black

• Citation: 337 Pa.Super. 548,487 A.2d 396
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Darrell Larue BLACK, Appellant.
• Decision Date: 11 January 1985
• Court: Superior Court of Pennsylvania

Page 396

487 A.2d 396

337 Pa.Super. 548

COMMONWEALTH of Pennsylvania, Appellee v. Darrell Larue BLACK, Appellant.

Superior Court of Pennsylvania.

Argued May 7, 1984.

Filed Jan. 11, 1985.

David H. Acker, Public Defender, New Castle, for appellant.

William A. Behe, Deputy Atty. Gen., Harrisburg, for Commonwealth, appellee.

Before SPAETH, President Judge, and CAVANAUGH, WIEAND, CIRILLO, MONTEMURO, POPOVICH and HOFFMAN, JJ.

CAVANAUGH, Judge:

Appellant, 48-year-old Darrell L. Black, was charged with statutory rape, ¹ corruption of minors, ² incest, ³ and attempted involuntary deviate sexual intercourse ⁴ with respect to his thirteen-year-old daughter, Cynthia. After a jury trial, he was found guilty of all counts and sentenced to a term of imprisonment of two and one-half to five years. ⁵ This appeal followed. Appellant challenges the lower court's application of Pennsylvania's Rape Shield Law, 18 Pa.C.S. § 3104, ⁶ which prevented him from introducing evidence of prosecutrix' prior sexual conduct with one of her brothers. We agree with appellant and remand for a new trial.

Black was accused of committing the present offenses during the 1979 Christmas holiday season. The trial testimony revealed that during this time appellant resided with his family, including prosecutrix, in a four- or five-bedroom, single family dwelling. On the night in question, the house was filled beyond capacity by out-of-town guests, bringing the total number of occupants to twelve or thirteen persons. The minor prosecutrix testified as follows. After everyone had retired for the evening, her father asked her to come into his bedroom to massage his legs, a treatment required by his diabetic condition and routinely performed by members of his family in his bedroom. She agreed to do this and after she finished, he motioned her to lie down on the bed with her back toward him. He then pulled her underwear down and had sexual intercourse with her. The victim maintained that the entire sexual episode occurred without a word being spoken.

Appellant's version of the events that evening was that although his daughter was present in his room, no sexual contact occurred. As is common in sexual offense cases, the prosecutrix and appellant provided the only direct evidence for their respective versions and the case thus turned on their comparative credibility.

While the sexual incident was found to have occurred during Christmas, 1979, testimony indicated that Cynthia's complaints began to surface almost three months later, near the end of March, 1980. These complaints coincided with violent arguments between appellant and prosecutrix' fifteen-year-old brother, which culminated in the brother leaving home and separating from the family, including prosecutrix. Cynthia admitted wanting her brother back in the home, and other testimony indicated that as soon as appellant was arrested and removed, the fifteen-year-old brother contacted the family and sought to return home. In his defense, appellant offered to show through cross-examination that Cynthia had maintained an ongoing, consensual sexual relationship with this brother, which ended when the brother left home. Appellant contends that the true extent of prosecutrix' bias against him could only be revealed by showing the abnormal, sexual relationship which she had with her brother and which had been terminated by appellant's dispute with her brother. Specifically, appellant urges that Cynthia's testimony can only be weighed fairly when measured against her desire, first, to punish appellant for his interference with her sexual relationship with her brother, and, second, to remove appellant from the home so that her brother might return and resume the relationship. As noted above, the lower court excluded this evidence of prosecutrix' prior sexual conduct with her brother, relying on the Rape Shield Law.

We begin by noting the modern rule that prior sexual conduct with third persons is ordinarily inadmissible to attack the character of the prosecutrix in sex offense cases. 1A Wigmore, Evidence § 62 (Tillers rev. 1983). However, in this case the evidence of prior sexual conduct was not offered merely to show any general moral turpitude or defect of the prosecutrix, but rather to reveal a specific bias against and hostility toward appellant and a motive to seek retribution by, perhaps, false accusation. Particularly, appellant contends, if a parent and child were simply quarrelling, one would not normally expect a sibling to harbor a strong bias against the parent and in favor of the child. However, as appellant suggests, an ongoing, consensual sexual relationship between Cynthia and her brother would be a telling factor in understanding where her allegiance lay. In this regard, it is well settled that a party has the right to show by cross-examination that an adverse witness has a bias against him, or otherwise has an interest in the outcome of the trial. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978); 3A Wigmore, Evidence § 948 (Chadbourn rev. 1970).

In contrast to the broad, common law rule permitting cross-examination to show bias, we are confronted with Pennsylvania's Rape Shield Law, which provides, in pertinent part, that "[e]vidence of specific instances of the alleged victim's past sexual conduct, ... shall not be admissible in prosecutions under [Chapter 31] ...", relating to sexual offenses. 18 Pa.C.S. § 3104(a). ⁷ The lower court relied on this plain statutory language, as well as our recent opinion in Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980), in holding the evidence inadmissible.

Appellant, however, contends that the Rape Shield Law, as applied below, improperly infringed upon his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution. ⁸ , ⁹ Although the United States Supreme Court has not ruled directly on any of the numerous, recently enacted rape shield laws, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), it considered a criminal defendant's Sixth Amendment right of confrontation with respect to a juvenile law which shielded a prosecution witness from cross-examination based on his juvenile record.

In Davis, the prosecution witness testified that he had found abandoned and recently stolen property near his home and reported this to police. The witness also identified the defendant as a man he had seen in the vicinity the night before he discovered the stolen property. The defendant sought to impeach the witness by introducing evidence of the witness' juvenile record for burglary and his current probationary status. The defendant argued that since the stolen property turned up suspiciously close to the witness' home, the witness himself could easily have been a prime suspect. The fact and nature of the witness' juvenile record and probationary status would tend to cast more suspicion on the witness and thus augment his motive to falsely identify defendant in order to shift official attention away from himself. The lower court in Davis excluded evidence of the witness' juvenile history relying on a state statute flatly prohibiting admission of such evidence against the juvenile in subsequent proceedings.

In holding that the lower court's application of the state statute had violated the defendant's Sixth Amendment right of confrontation, the Davis court stated:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 US 400, 13 L Ed 2d 923, 85 S Ct 1065 (1965). Confrontation means more than being allowed to confront the witness physically. "Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination." Douglas v. Alabama, 380 US 415, 418, 13 L Ed 2d 934, 85 S Ct 1074 (1965)....

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, ... the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. ... [One] attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony." 3A J. Wigmore Evidence § 940, p 775 (Chadbourn rev 1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v McElroy, 360 US 474, 496, 3 L Ed 2d 1377, 79 S Ct 1400 (1959).

Davis v. Alaska, 415 U.S. at 315-17, 94 S.Ct. at 1109-1111 (footnote omitted). See also Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Mines, 321 Pa.Super. 529, 468 A.2d 1115 (1983).

Although Alaska's legitimate interest in promoting rehabilitation by preserving a juvenile's anonymity was recognized, the Court held that where a criminal defendant sought to introduce significant evidence of bias, the defendant's right of confrontation was paramount to the state's policy of protecting and rehabilitating juveniles. The Court stated that

[w]hatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record--if the prosecution insisted on using him to make its case--is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a...