Com. v. Allburn

• Decision Date: 08 October 1998
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Alan D. ALLBURN, Appellee.
• Court: Pennsylvania Superior Court

721 A.2d 363

COMMONWEALTH of Pennsylvania, Appellant, v. Alan D. ALLBURN, Appellee.

Superior Court of Pennsylvania.

Argued April 16, 1998.

Filed October 8, 1998.

Patrick M. Carey, Asst. Atty., Erie, for Com., appellant.

Joseph P. Burt, Erie, for appellee.

Before DEL SOLE, TAMILIA and EAKIN, JJ.

EAKIN, J.:

The Commonwealth appeals from the pre-trial order of the Court of Common Pleas of Erie County, granting appellee's Motion pursuant to 18 Pa.C.S. Section 3104(b) regarding evidence of the victim's past sexual conduct. We reverse.

In 1996, appellee was charged with Involuntary Deviate Sexual Intercourse, Indecent Assault, Corruption of Minors and Endangering Welfare of Children,¹ stemming from the alleged sexual abuse of his stepdaughter between 1991 and September 1995. The victim, born April 1, 1983, claimed appellee "put his penis in her mouth and anus, placed his tongue in her vagina, and directed her to touch his penis on numerous occasions. Further, [appellee] is alleged to have shown the victim numerous sexually explicit magazines and videotapes during which time [appellee] would attempt to perform the acts depicted therein with the victim." Appellant's Brief, at 4. Prior to trial, appellee filed a "Motion Pursuant to Title 18 Section 3104(b) Regarding Evidence of Victim's Sexual Conduct", which offered to prove:

a. That between 1991 and 1993 ... the female victim ... engaged in various sexual acts, including sexual intercourse with a juvenile male, ... age 15.

b. Said sexual activity, according to [the juvenile male], occurred in the basement and [in the minor victim's] bedroom....

c. That in the attic the juveniles discovered some sexually explicit magazines, which they viewed there.

d. The male juvenile admitted this activity to his mother, ... and to the [appellee] and to defense counsel.

e. [The minor victim] denied having sexual activities or intercourse with anyone else, but admitted that she had been touched by a juvenile boy whose name she could not remember and that this occurred prior to the sexual activity with the [appellee]....

Appellee's motion, pages 2-3.

Upon review of appellee's motion, the trial court:

ordered that the [appellee's] motion and offer of proof [were] sufficient on their face and further Ordered an in camera hearing to make findings on the record as to the relevance and admissibility of the proposed evidence. On April 18, 1997, the Commonwealth filed a Notice of Appeal from the March 19, 1997 Order. By Order dated April 22, 1997, [the trial court], following a hearing in camera, reaffirmed the record as follows: The [trial court] granted the [appellee's] Motion Pursuant to 18 Pa.C.S. 3104(B) Regarding Evidence of Victim's Sexual Conduct; the [trial court] found that the proffered evidence of the victim's past sexual conduct [was] admissible as an exception to the Rape Shield Law; the [trial court] found that this case involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may advance the ultimate termination of the matter.

Trial Court Opinion, 7/7/97, at 2.

Before we may consider the merits of this appeal, we must determine whether it is properly before this Court. Unlike the typical Commonwealth appeal from an order limiting the prosecution's evidence (as by suppression or the like), this appeal challenges a pretrial determination to admit certain defense evidence. Although appellees did not dispute the appealability of the order, such is a question of jurisdiction and may be raised sua sponte. Blackman v. Katz, 390 Pa.Super. 257, 261, 568 A.2d 642, 645 (1990)

; Terpin v. Terpin, 314 Pa.Super. 376, 378, 460 A.2d 1188, 1189 (1983).

Pa.R.A.P. 311(d) provides as follows:

(d) Commonwealth Appeals in Criminal Cases. In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Under this section, the Commonwealth may appeal if it certifies the interlocutory order will terminate or substantially handicap the prosecution; it plainly included this certification in the notice of appeal. "Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay." Commonwealth v. Dugger, 506 Pa. 537, 547, 486 A.2d 382, 386 (1985). Failure to include the certification renders the questioned order unappealable. Commonwealth v. Malinowski, 543 Pa. 350, 358, 671 A.2d 674, 678 (1996).

We recently stated in Commonwealth v. King, 456 Pa.Super. 72, 689 A.2d 918 (1997), "The Commonwealth's good faith certification, alone, provides an absolute right to appeal; it is not required to demonstrate the need for the evidence." Id. at 921 (citing Dugger, supra

). In King, the Commonwealth appealed an order granting a defense motion in limine, excluding certain evidence. Id. at 920. Although in this case the Commonwealth is appealing an order allowing evidence proffered by the defense, the same logic applies. The Commonwealth does not have to prove it will be "substantially handicapped"; the good faith certification suffices.²

In Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (1996), our Supreme Court found:

There is no essential difference between suppression rulings and rulings on motions in limine to admit or exclude evidence. In both cases, a pretrial order is being handed down which admits or excludes evidence at trial, and in both cases, once a jury is sworn, the Commonwealth may not appeal from an adverse ruling. That suppression motions are always of constitutional dimension and motions in limine are only sometimes of constitutional dimension is of no import, for in both cases, without an immediate right of review, the Commonwealth's case may be so hampered that the Commonwealth may be unable to proceed.

Id. at 517, 673 A.2d at 868 (emphasis supplied).

Based on the foregoing, we find this appeal is properly before our Court, and we will review the issues the Commonwealth presents:

I. WHETHER EVIDENCE OF CONSENSUAL SEXUAL ACTIVITY BETWEEN A MINOR VICTIM AND A MINOR THIRD PARTY DURING THE SAME TIME FRAME AS THE ALLEGED SEXUAL ABUSE BY THE CRIMINAL DEFENDANT UPON THE MINOR VICTIM IS ADMISSIBLE TO ATTACK THE CREDIBILITY OF THE VICTIM AND TO EXPLAIN ONE SOURCE OF THE VICTIM'S KNOWLEDGE OF SEXUAL ACTIVITY.

II. WHETHER THE PROFFERED EVIDENCE WAS BARRED BY THE RAPE SHIELD LAW, 18 Pa. C.S.A. § 3104, SUBJECT TO NONE OF THE RECOGNIZED EXCEPTIONS.

III. WHETHER THE PREJUDICIAL EFFECT OF THE PROFFERED EVIDENCE OUTWEIGHED THE PROBATIVE VALUE.

IV. WHETHER THE PROFFER MADE BY THE [APPELLEE] IN HIS MOTION AND ON THE RECORD WAS SUFFICIENT UNDER ESTABLISHED CASELAW REGARDING RAPE SHIELD EVIDENCE.

Brief for Appellant, at 3.

A trial court's ruling on the admissibility of evidence of the sexual history of a sexual abuse complainant will be reversed only where there has been a clear abuse of discretion. Commonwealth v. Weber, 549 Pa. 430, 436, 701 A.2d 531, 534 (1997)(citing Commonwealth v. Johnson, 536 Pa. 153, 157, 638 A.2d 940, 942 (1994)

); Commonwealth v. Guy, 454 Pa.Super. 582, 587, 686 A.2d 397, 399 (1996),

alloc. denied, 548 Pa. 645, 695 A.2d 784 (1997). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused." Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 697 (1992) (citation omitted).

The law regarding evidence of a complainant's sexual history is set forth in Pennsylvania's Rape Shield statute, which provides:

§ 3104. Evidence of victim's sexual conduct

(a) General Rule.-Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

(b) Evidentiary proceedings.-A defendant who proposes to offer evidence of the alleged victim's past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibilty of the proposed evidence pursuant to the standards set forth in subsection (a).

18 Pa.C.S. § 3104.

The purpose of the Rape Shield statute is to prevent a trial from shifting its focus from the culpability of the accused towards the virtue and chastity of the victim. By so doing, the legislature hoped to end the practice of those defense attorneys who elected to try the victim instead of defend their client. See, e.g., Commonwealth v. Weber, 450 Pa.Super. 32, 40, 675 A.2d 295, 298-99 (1996)

; Commonwealth v. Widmer, 446 Pa.Super. 408, 421-22, 667 A.2d 215, 222 (1995); Commonwealth v. Smith, 410 Pa.Super. 363, 367, 599 A.2d 1340, 1342 (1991).

Guy, at 587-88, 686 A.2d at 400.

The Rape Shield statute contains a specific exception to its general prohibition of evidence regarding a victim's sexual conduct—evidence of the victim's past sexual conduct with the defendant may be admitted where consent of the victim is at issue. Consent is not alleged here, and the past acts were not with the defendant, making this exception inapplicable. However, our courts have found other exceptions to the statute.

Our Supreme Court has held...