Com. v. Jorgenson

• Decision Date: 19 April 1985
• Citation: 341 Pa.Super. 550,492 A.2d 2
• Parties: COMMONWEALTH of Pennsylvania v. Edward George JORGENSON, Appellant.
• Court: Pennsylvania Superior Court

Page 2

492 A.2d 2

341 Pa.Super. 550

COMMONWEALTH of Pennsylvania v. Edward George JORGENSON, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 18, 1985.

Filed April 19, 1985.

J. Richard Gray, Lancaster, for appellant.

Louise G. Herr, Asst. Dist. Atty., Lancaster, for Commonwealth, appellee.

Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.

OLSZEWSKI, Judge:

In this case, appellant, arguing that he was denied his constitutional right to cross-examine and confront his accuser, requests discharge or a new trial. He also argues the evidence was insufficient to sustain his conviction for simple assault, and that the procedures used in charging him were faulty. After carefully considering the opinion of the lower court, the pertinent statutes, and the public policies at stake, we affirm the judgment of sentence.

The facts of this case are not pleasant. On September 28, 1981, state police arrested appellant and charged him with rape, involuntary deviate sexual intercourse, incest and simple assault. The complaining witness, appellant's daughter, told police that after a late-night fight with his girlfriend, her intoxicated father came into her bedroom and forced her to submit to sexual intercourse and deviate sexual intercourse. She reported that he struck her when she initially refused. After he had gone back to his room, she escaped to a neighbor's house and was treated at a local hospital. Police arrested appellant the next day.

Before trial, appellant moved to dismiss, arguing lack of jurisdiction, because the district attorney had failed to sign the information. The court granted his motion, and promptly re-arraigned appellant on identical charges contained in a new, properly signed information. ¹ In another pre-trial motion, this one in limine, appellant moved the court to bar the Commonwealth from introducing certain physical evidence tending to show intercourse had occurred. Alternatively, in the event the court would refuse to bar admission of the disputed evidence, appellant requested permission to introduce evidence that the complaining witness had engaged in sexual relations with a person other than the defendant prior to the night in question, and to cross-examine her as to prior sexual activities. The court considered the motion and denied it, finding that the Pennsylvania Rape Shield Law, 18 Pa.C.S.Sec. 3104 (Purdon's 1983), barred the admission of the evidence and the proposed cross-examination.

The Admissibility of the Evidence

I.

Appellant's argument centers on the Supreme Court's holding in Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983). In that case, the Supreme Court held it was permissible for the defense to adduce testimony that the victim had engaged in intercourse with a third person prior to the event which resulted in rape charges being filed against the defendant. The defense argued that the presence of semen and sperm in the victim's vagina could be explained by the earlier intercourse. The court held that where relevant evidence would tend to negate the allegation that rape occurred, it was admissible.

Appellant argues that testimony that the victim had engaged in intercourse with another person prior to the alleged rape would be relevant evidence tending to negate the allegation that rape occurred. This argument deserves careful analysis.

The Commonwealth's evidence in part was testimony by a physician that the victim appeared to be distraught, that there was trauma to the vaginal area and that she had bruises on the vaginal wall. The bruises were still black and blue, which the physician testified meant they had been inflicted within a matter of several hours. The physician stated that tampons could cause such bruising, but it was not likely. On cross-examination, he stated that it was possible that bruises would occur with consensual intercourse, but that with consensual intercourse the act generally was not violent enough to produce bruises.

The Commonwealth also introduced the victim's underpants, which she had put on after the incident, into evidence. A Commonwealth witness testified that lab tests indicated the presence of seminal acid phosphatase in stains on the clothing. She testified that seminal acid phosphatase exists only in seminal fluid. On cross-examination, she stated that the presence of seminal acid phosphatase does not mean intercourse has occurred, and that she could not say when the stains she analyzed occurred. On re-direct, she stated that washing stained clothing would remove the substance.

The defense called the defendant's former girlfriend, with whom he had been living at the time when the charges were filed. She testified that she had worn the underpants briefly after she and the defendant had engaged in intercourse, but had found they were too small. She testified that she then took them off, and that she later gave them to the victim.

II.

Appellant, at the proceeding in limine, averred that a witness existed and that he would testify that he had had sexual relations with the victim. The Commonwealth disputed the offer of proof, saying the witness would testify that he had not had sexual relations with the victim. No offer of proof was made as to the date or time of the sexual incidents.

The Supreme Court said in Majorana:

We do not believe the legislature intended to prohibit relevant evidence which directly negates the act of intercourse with which a defendant is charged. Where, as here, a defendant offers evidence of intercourse close enough in time to the act with which he is charged that it is relevant to explain the presence of objective signs of intercourse, the protections afforded to the complainant by the Rape Shield Law do not apply. Such evidence should be admitted, subject to the usual rules of admissibility of evidence in particular the balancing of probative value against prejudicial effect.

503 Pa. at 611, 470 A.2d at 84.

The objective signs of intercourse in the instant case were the bruising and the presence of seminal acid phosphatase.

III.

The drafters of the Rape Shield Law understood that evidence of a victim's sexual history is not relevant in a rape case to show consent to the act in question. The Supreme Court, citing with approval Commonwealth v. Strube, 274 Pa.Super. 199, 418 A.2d 365, stated in Majorana:

The rape shield laws are legislative recognitions of the minimal probative value of sexual history and are designed to prohibit, to varying degrees, the travesty of presenting a noisome stream of defense witnesses testifying to the sexual propensities, often sordid and sometimes fanciful, of the complaining witness.

503 Pa. at 609, 470 A.2d at 84.

The Supreme Court in Majorana enjoined us and other Pennsylvania courts to balance the probative value of relevant evidence against its prejudicial value in rape cases. Relevant means "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.E. 401. See also Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1978) (evidence tending to make facts at issue more or less probable is relevant).

Evidence of prior sexual activity at an undisclosed earlier time would have been irrelevant under the circumstances. The defense did not offer to prove that the clothing analyzed was present at the prior incidents alleged to have occurred. Nor did it offer to prove that the clothing had not been laundered since the incident.

Our decision is consistent with that of the Supreme Court in Majorana. In that case, the Commonwealth adduced the fact that semen and sperm had been found in the victim's vagina. The "fact of consequence to the determination of the action" was the presence of semen and sperm. The proffered evidence was that the victim had engaged in intercourse earlier than the time when the rape occurred. This was relevant, since a prior sexual episode made it less probable that the semen and sperm...