Com. v. Wall

• Decision Date: 27 April 1992
• Citation: 413 Pa.Super. 599,606 A.2d 449
• Parties: COMMONWEALTH of Pennsylvania v. Jerome WALL, Appellant.
• Court: Pennsylvania Superior Court

Page 449

606 A.2d 449

413 Pa.Super. 599

COMMONWEALTH of Pennsylvania v. Jerome WALL, Appellant.

Superior Court of Pennsylvania.

Submitted July 29, 1991.

Filed Feb. 26, 1992.

Reargument Denied April 27, 1992.

Maryann F. Swift, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.

Before OLSZEWSKI, KELLY and BROSKY, JJ.

KELLY, Judge:

In this opinion we are called upon to determine whether a defendant's constitutional right to confrontation is violated by refusing to permit the introduction of evidence of a child sexual abuse victim's prior experience as a prosecutrix in a materially similar sexual assault case. Under the facts of the instant case, we find that the exclusion of such evidence did violate the defendant's right to confrontation. Accordingly, we reverse and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

In June, 1987, appellant and his wife obtained legal custody of their twelve-year-old niece, who had been removed from her mother's home after her mother's paramour was found guilty of sexually abusing her. On February 17, 1989, their niece (hereinafter "the victim") ran away from home and made allegations that appellant had sexually abused her from November, 1988 through January, 1989. ¹ Appellant was thereafter arrested and charged with involuntary deviate sexual intercourse and corruption of a minor.

Before trial, appellant filed a motion in limine seeking to introduce evidence that the victim had been removed from her mother's home and placed in foster care after being sexually assaulted by her mother's paramour. Defense counsel argued in an in camera hearing on this issue that evidence of the victim's previous participation in the successful prosecution of an adult male who had sexually abused her was relevant to his defense of fabrication because it tended to show that the victim may have been peculiarly aware of the fact that such a sexual abuse claim could lead to her removal from her aunt's home. Defense counsel urged that in view of the fact that there existed otherwise admissible evidence of the victim's desire to leave her aunt's home because of the strict discipline that her aunt often imposed, the evidence of the victim's prior participation in a materially similar prosecution was logically necessary to complete the fabrication theory. The trial court denied this motion, however, based on the Pennsylvania Rape Shield law, ² and allowed only the introduction of evidence that the victim resided with appellant and his wife because there was a "problem" at her mother's home. N.T. 3/29/90 at 31-33.

At trial, as is common in sexual abuse cases, the victim and the defendant provided the only direct evidence of the events at issue. The victim testified to an ongoing series of sexual abuses, which began during summer visits to Philadelphia. She recalled that after she had begun living with her aunt and appellant in June of 1987, she had engaged in a variety of sexual acts with appellant while her aunt was at work. ³ She testified that she had consented to these acts in exchange for appellant's occasional intervention in, and protection from, severe discipline which her aunt had regularly imposed upon her. ⁴ On one occasion, which the victim described in graphic detail, appellant allegedly came into her room, undressed her, carried her into his room, and had oral sex with her. See N.T. 3/29/90 at 84-89. She testified that appellant had explained that he "wouldn't have sex[ual intercourse] with me until I was 16 ... [b]ecause I was too young." Id. at 100. According to the victim, the abuse ended only when, on February 17, 1989, she ran away from her aunt's home and, for the first time, reported the abuse to an adult. ⁵

Appellant took the stand in his own defense, categorically denying any sexual contact with the victim. In addition, defense counsel attempted to establish, through circumstantial evidence, that the victim had fabricated the sexual abuse charges to escape her aunt's harsh discipline. In closing, the Commonwealth responded that the victim's testimony had "the ring of truth" possible only if appellant was in fact guilty of sexually abusing the victim. The jury apparently discredited appellant's fabrication theory, convicting him on both counts. Post-trial motions were filed and denied.

Subsequently, appellant filed supplemental post-trial motions urging that a new trial was warranted because "after discovered evidence" established that the victim had, after appellant had been convicted, run away from the foster home where she had been placed after being removed from appellant's home, and claimed that an adult male in that home had sexually abused her as well. Appellant argued that such evidence established a "pattern" of sexual abuse fabrication to avoid discipline. On July 31, 1990, the trial court held a hearing on this matter, but denied appellant post-trial relief on the basis that such impeachment evidence could not serve as grounds for relief on an after discovered evidence claim. Appellant was thereafter sentenced to a term of five to ten years imprisonment for involuntary deviate sexual intercourse and a concurrent term of one to two years imprisonment for corruption of a minor. This timely appeal followed.

On appeal, appellant raises the following issues for our consideration:

[I.] DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION IN LIMINE SEEKING TO INTRODUCE EVIDENCE OF A PRIOR SEXUAL ASSAULT UPON THE COMPLAINANT?

[II.] DID THE DENIAL OF APPELLANT'S MOTION IN LIMINE AND MOTION FOR A MISTRIAL ALLOW THE PROSECUTOR TO COMMIT PROSECUTORIAL MISCONDUCT BY ARGUING TO THE JURY THAT THE COMPLAINANT'S YOUTH PRESUMED A LACK OF KNOWLEDGE CONCERNING HUMAN PHYSIOLOGY, SEXUAL PRACTICES AND LEGAL INTRICACIES?

[III.] WAS IT ERROR TO DENY DEFENSE COUNSEL THE OPPORTUNITY TO QUESTION APPELLANT ON REDIRECT EXAMINATION REGARDING

THE COMPLAINANT'S PRIOR SEXUAL ABUSE AFTER THE COMMONWEALTH "OPENED THE DOOR" TO THAT LINE OF QUESTIONING DURING CROSS-EXAMINATION?

[IV.] DID THE COURT ERR IN PRECLUDING DEFENSE QUESTIONS OF THE COMPLAINANT REGARDING AN ALTERNATE SOURCE OF HER SEXUAL KNOWLEDGE?

[V.] DID THE COURT ERR IN FAILING TO GRANT A NEW TRIAL BASED ON AFTER-DISCOVERED EVIDENCE SHOWING MOTIVE, INTENT OR SCHEME ON THE PART OF THE COMPLAINANT?

Appellant's Brief at 1. Only the first issue needs to be discussed herein. ⁶

II. RIGHT TO CONFRONTATION AND CROSS-EXAMINATION

Appellant contends that the trial court erred in excluding evidence of the victim's prior experience as a prosecutrix in a sexual assault case against an adult male. Appellant argues that such evidence was relevant to and highly probative of the defense he presented at trial, i.e. that the victim had fabricated the charges in an effort to escape from the home in which she was being severely disciplined, in that it tended to make more likely the possibility that the victim falsely accused him of sexual abuse. Therefore, he contends, the exclusion of such evidence denied him his constitutional rights to confrontation and cross-examination.

In response, the Commonwealth argues that any such evidence or line of questioning would impermissibly result in the introduction of evidence of the victim's sexual history, and as such, was properly precluded from trial under Pennsylvania's Rape Shield Law. The Commonwealth submits that the exceptions to the Rape Shield Law's nearly absolute bar of evidence of a victim's sexual experience are extremely limited, preventing the admission of any such evidence which does not itself exonerate the defendant. Moreover, the Commonwealth urges, other admissible impeachment evidence existed which allowed appellant to exercise fully his constitutional right to confront and cross-examine witnesses against him.

The trial court determined that the prejudicial impact of the evidence of the victim's prior experience as a prosecutrix outweighed its probative value. For this reason, it excluded the evidence from trial and denied appellant's motion for a new trial. After exhaustive review of the record, the briefs and the relevant authority, we are compelled to find that the trial court erred in doing so.

The battle waged between the legislatively created Rape Shield Law and the constitutional right to confront and cross-examine witnesses is by now a familiar one in Pennsylvania. Both this Court and our Supreme Court have served as battlegrounds in this conflict many times before. ⁷ The task of resolving such disputes, however, remains difficult.

The Rape Shield Law provides in pertinent part:

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.

18 Pa.C.S.A. § 3104. In contrast, the Sixth Amendment to the United States Constitution ⁸ ensures that:

In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor. ⁹

On their face, the two authorities at issue herein may seem to share no common interests. By excluding from trial any evidence of either the victim's chastity or promiscuity, the purpose of the Rape Shield Law may be seen as simply terminating any misguided efforts of overly zealous defense attorneys who may seek to harass or embarrass the victim/witness brave enough to venture onto the witness stand. See Commonwealth v. Smith, 410 Pa.Super. 363, 368, 599 A.2d 1340, 1342 (1991). It has been held that the purpose of the Confrontation Clause, on the...