Com. v. Hawk

• Decision Date: 26 February 1998
• Citation: 551 Pa. 71,709 A.2d 373
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Dwayne E. HAWK, Appellant.

Page 373

709 A.2d 373

551 Pa. 71

COMMONWEALTH of Pennsylvania, Appellee, v. Dwayne E. HAWK, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 15, 1997.

Decided Feb. 26, 1998.

[551 Pa. 72] Phyllis A. Jin, Uniontown, Michael J. Savona, Bronsville, for Dwyane E. Hawk.

[551 Pa. 73] Peter U. Hook, Stephen P. Leskinen, Uniontown, for the Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION OF THE COURT

NEWMAN, Justice.

Dwayne E. Hawk (Hawk) appeals from the Superior Court's affirmance of the judgment of sentence entered against him in the Court of Common Pleas of Fayette County (trial court), following his conviction for rape. We granted allowance of appeal to determine whether the trial court erred in disallowing the defense to present the testimony of a forensic scientist concerning the negative test results of a rape kit administered to the alleged victim. ¹ Because we conclude that the trial court abused its discretion in precluding the scientist's testimony, we reverse.

Factual Background

At trial, the victim testified that on the night of August 1, 1993, she was at a bar in Uniontown, Pennsylvania at approximately 11:15 or 11:30 p.m. Hawk sat next to her at the bar and attempted to engage her in conversation. She became irritated by Hawk and moved away. Hawk did not attempt any further conversation with her in the bar. At approximately 12:15 a.m., the victim left the bar with a glass of soda in her hand and began walking to her home two blocks away. While she was opening her front door, she heard someone behind her say, "ho." She shut the door and turned around. She saw Hawk at the foot of the steps. He grabbed her around the waist before she could reopen the door. Hawk sat her on the step and put his arm around her and would not let her go.

Hawk and the victim then engaged in a brief conversation in which he told her that he liked her. She responded that her boyfriend was upstairs, and that Hawk should leave. When he said he wanted to buy a can of soda from a gas station next door, the victim stated she was going upstairs. According to the victim, Hawk insisted that she come with him because he had a "silencer." She understood a "silencer" to mean a gun.

Hawk took her by the arm and eventually led her down an alley. The victim testified that Hawk sat her on the steps of a building and pulled down her pants. He then pulled his pants down to his ankles. According to the victim, he penetrated her vagina twice with his penis. She tried to resist but was unable to call for help because he put his hand over her mouth. Afterwards, they left in different directions at the same time. The victim went immediately to the police station and reported that she had been raped. A police detective corroborated that the victim came into the station at 12:41 a.m.

Hawk testified on his own behalf, denying that he had ever had sexual intercourse with the victim. He admitted that he had spoken to the victim at the bar on the evening of August 1, 1993, but stopped talking to her when she did not respond to his attempts at conversation. According to Hawk, he and a friend, Steven Easton, left the bar at 10:45 p.m. They went to Hawk's sister's house, arriving at approximately 11:05 p.m., and stayed until approximately 1:45 a.m. Hawk and Easton drank and socialized with his sister and another acquaintance, Jack Boone. Boone then drove Hawk to his home at approximately 2:00 a.m. Easton and Hawk's sister corroborated his alibi testimony.

Further to corroborate his alibi defense, Hawk attempted to present the testimony of Sarah Gotwald, a forensic scientist of the Pennsylvania State Police Crime Lab, concerning the test results of a rape kit administered to the victim shortly after the incident. ² The Commonwealth objected on the basis of relevancy. The trial court heard the scientist's testimony in camera.

At the in camera hearing, the scientist testified that she tested vaginal and saliva swabs from the victim for the presence of semen. Both swab tests were negative. The scientist found no foreign pubic hair on the victim. She found no hair, foreign fibers or skin tissue under the victim's fingernails. The scientist obtained a blood sample from the victim that was unsuitable for testing. She examined the victim's underwear and did not detect any semen there. She did find human blood in the crotch area but did not perform genetic marker testing on it. When asked what conclusions she reached based on these findings, the scientist responded:

A. I will preface with the idea that if semenal [sic] material is identified, that is very straightforward. We can, that is an indicator that there was penetration and ejaculation. In the absence of evidence, it is not, you cannot make any clear cut determination or statement like that. You can consider the possibilities and the possibilities include that there was no penetration. They include that there was penetration with no ejaculation or penetration with ejaculation elsewhere, or penetration with ejaculation and the sample was lost because of activities of the victim before she gets to the hospital. When you don't have the evidence, you have to consider the possibilities that may have happened.

* * *

THE COURT: Do you also consider that there could have been a condom used?

THE WITNESS: Yes.

THE COURT: So in other words, what you are saying is that where you find no semenal [sic] fluid, you can't say anything other than speculate as to the possibilities of why there is none?

THE WITNESS: That's correct.

THE COURT: Would that be the same for the pubic hairs, the lack of pubic hairs? You would speculate as to why there was none?

THE WITNESS: Any time there is an absence of evidence, you can't say something clear because there are all sorts of possibilities, the first being that it may never have been there. The second being that it may have been there and lost in some way. That sort of thing. You have to consider those issues in the absence of evidence.

Notes of Testimony, February 8, 1994, at 115-19. After hearing argument on the admissibility of the scientist's testimony, the trial court concluded that "[a]lthough the evidence offered by Ms. Gotwald may be logically relevant in enhancing the possibility that intercourse did not occur, it does not enhance the probability that there was no intercourse." Id. at 120 (emphasis added). Therefore, the trial court ruled that the evidence is not relevant to the material issues in this case, and excluded the evidence at trial.

Following trial, a jury convicted Hawk of rape. The trial court sentenced him to a term of imprisonment of six to twelve years.

The Superior Court affirmed, holding that the scientist's inability to reach any conclusion from the negative test results, and her concession that she would have to speculate as to the meaning of the results, would not assist the finder of fact in determining whether intercourse occurred. The court explained that the negative test results did not make the inference--that Hawk did not engage in sexual intercourse with the victim--more probable than not. According to the court, the inconclusive evidence would require the jury to speculate whether intercourse did in fact occur.

On appeal to this Court, Hawk argues that the trial court erred in precluding the scientist's testimony. We agree.

Discussion

The admissibility of evidence is a matter committed to the sound discretion of the trial court; an appellate court may reverse a trial court's ruling only upon a showing that the trial court abused its discretion. Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992).

In determining the admissibility of evidence, the trial court must decide whether the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994); see, e.g., Commonwealth v. Dollman, 518 Pa. 86, 541 A.2d 319 (1988). "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact." Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992). Evidence that merely advances an inference of a material fact may be admissible, even where the inference to be drawn stems only from human experience. See, e.g., Dollman (jury could have interpreted disposal of victim's body as evidencing consciousness of guilt). Moreover, even in the case of expert testimony, "[t]o be relevant, evidence need not be conclusive." Crews, 536 Pa. at 523, 640 A.2d at 402.

In Crews, a rape and murder prosecution, we upheld the trial court's admission of a DNA expert's opinion that DNA evidence found at the crime scene was "strongly associated" with the DNA of the defendant. ³ Id. We acknowledged that DNA evidence can never provide absolute proof of identity. However, we reasoned that "the relevant, though inconclusive, DNA evidence was admissible ... [and that] its weight and persuasiveness were properly matters for the jury to determine." Id. at 524, 640 A.2d at 403. Applying the Crews rationale here, we conclude that the rape kit evidence, though inconclusive, was relevant to the issue of whether sexual intercourse occurred. It was for the jury to determine its weight and persuasiveness.

Pursuant to the Crimes Code, rape occurs when a person "engages in sexual intercourse with a complainant ... [b]y forcible compulsion [or][b]y threat of forcible compulsion that would prevent resistance by a person of reasonable resolution...." ⁴ 18 Pa.C.S. 377s 3121. "Sexual intercourse," "[i]n addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required." 18 Pa.C.S. § 3101. Penetration, however slight, is therefore an essential element of rape.

Positive rape kit test results are admissible...