Commonwealth v. Majorana
| Decision Date | 07 May 1982 |
| Citation | 299 Pa.Super. 211,445 A.2d 529 |
| Parties | COMMONWEALTH of Pennsylvania v. Jerome MAJORANA, a/k/a James J. Majorana, Appellant. |
| Court | Pennsylvania Superior Court |
Argued April 23, 1981.
Patrick J. Flannery, Asst. Public Defender Wilkes-Barre, for appellant.
Joseph Giovananni, Asst. Dist. Atty., Wilkes-Barre, for Commonwealth, appellee.
Before CERCONE, President Judge, and PRICE, SPAETH, HESTER CAVANAUGH, WICKERSHAM, BROSKY, WIEAND, JOHNSON, MONTEMURO POPOVICH, DiSALLE and SHERTZ, JJ.
Appellant and two co-defendants were charged with Rape, [1] Indecent Assault, [2] Unlawful Restraint [3] and Criminal Conspiracy. [4] At a jury trial appellant [hereinafter James] and one co-defendant [hereinafter Gerald] were convicted of Criminal Conspiracy and Unlawful Restraint. The third defendant [hereinafter Richard] was convicted of all four crimes.
This appeal by James is based on the assertion that the trial court erred in refusing to allow Richard to testify at the trial that he had engaged in consensual intercourse with the complainant earlier in the evening. The trial court refused to allow this testimony because the defendant had not filed a written motion and offer of proof of this evidence as he is required to do by the Rape Shield Law. [5]
The charges arose out of an allegation by the complainant [hereinafter Carol] whose testimony at trial showed that at approximately 10:40 p. m. on a Sunday, she came out of a dance which she had attended with a girlfriend; she saw Richard standing beside a car; the other two defendants were inside the car; Richard asked her where she was going and she replied that she was looking for her girlfriend; Richard responded that the girlfriend had left; he then took her by the arm and put her in the back of the car which drove off, with James driving, Gerald in front, and Richard and Carol in the back seat. Richard then removed Carol's jeans and panties and forcibly engaged in sexual intercourse with her, while Gerald held her down. Gerald then tried to climb over the seat in order to rape her, but desisted when she pushed him away.
At about midnight, having been given back her jeans by James, Carol left the car when it pulled into the parking lot of a shopping center. She then saw another car approaching, and asked the couple inside it for help. They drove her to her home. From there she went to a hospital where she was examined. Tests were taken which indicated the presence of semen and live sperm in her vagina.
The testimony proposed by Richard, during the trial but at sidebar, and excluded by the trial court, was to the effect that Richard had in the past dated Carol and engaged in consensual intercourse with her, and in particular that earlier that same evening, at the dance, Carol had asked Richard to go for a walk, and that they had gone to a parking garage where they had engaged in consensual sexual intercourse in a waiting room. The Commonwealth objected to this testimony on the grounds that under the Rape Shield Law it was irrelevant and inadmissible, particularly in view of the defendant's failure to file a written motion pursuant to 18 Pa.C.S.A. § 3104(b). [6]
The trial court sustained the Commonwealth's objection to any testimony about Carol's alleged prior sexual relationship with Richard. The court ruled that the defense could bring in whatever defense they had as to what happened in the car, but that they could not bring in "any evidence of specific acts of unchastity between the Defendants and the victim." In excepting to the court's ruling, the defense stated that they wanted to introduce "the fact of the intercourse as explanation as how the sperm and the semen got into the vagina."
Trial resumed. All three defendants testified. Richard testified in some detail to his alleged dates with Carol in the past. He also testified to Carol's having asked him to go for a walk at the dance and to their having gone into the parking garage. Richard testified that after leaving the garage he and Carol sat in the back seat of James' car for a while playing a tape recorder; that James then returned to the car and became annoyed at their using the tape recorder; and that after that the three defendants and Carol drove around the town and on to the highway. Richard's testimony continued to the effect that there was some animosity between James and Carol which resulted in Carol's being asked to leave the car, which she ultimately did after they had driven back into town.
The other two defendants testified to having seen Carol talk to Richard at the dance, to having seen her leave the dance with him, and then to her sitting in the back seat of James' car with Richard. All three testified that they drove around with Carol in the car until she left the car at James' request. They all denied that any sexual act occurred in the car. No evidence of any sexual activity was introduced at the trial beyond Gerald's volunteering on direct examination that his brother Richard "said that he was having sexual relations with" Carol. This statement was duly objected to by the Commonwealth, and the jury was instructed to disregard it.
Appellant's contention is that the Rape Shield Law was erroneously applied to this case. He concedes that his offer of proof as to the earlier dating and sexual relationship was objectionable as past sexual conduct excluded by the statute. However, he argues that Richard's Brief for Appellant at 9.
Thus, appellant argues on appeal that consent was in issue. [7] A careful review of the notes of testimony belies this argument. Nowhere did any of the defendants raise the issue of consent. Their testimony was a denial of the act complained of. Their proffered testimony was of an act which occurred at a different time, in a different place, and in different circumstances from those alleged by Carol.
What Richard said occurred (in his proffered, but excluded, testimony) and what Carol said occurred are not the same event. They are two separate incidents, whether both, either, or neither in fact occurred. Richard says that at one point in the evening Carol and he went for a walk and had sexual intercourse in a parking garage. Carol says that Richard put her in the car and, while James drove the car and Gerald held her down, Richard raped her. The charges were specifically for an act in the car. The prosecution was required to prove beyond a reasonable doubt that Carol was raped in the car. As testimony of a prior and separate incident Richard's testimony was barred by the Rape Shield Law unless the defendants placed consent at issue and filed the § 3104(b) motion.
Appellant also argues that the testimony of the parking garage incident was needed to explain the presence of the semen and live sperm in Carol's vagina. [8] If there was semen deposited in Carol by Richard, as opposed to by a stranger, [9] as a result of an earlier consensual sexual act, the same rule applies, that there was an alleged prior consensual act and a § 3104(b) motion was required. [10]
If we were to adopt the argument of the appellant in this case, that the Rape Shield Law does not apply, the effect of such a decision would be that where a defendant in a rape case denies the alleged rape, but offers evidence of other recent sexual activity between himself and the complainant, that evidence would be admissible on the theory that it was not evidence of "past sexual conduct" within the meaning of the Rape Shield Law. Defendants in rape cases would be released from the constraints of the statute. Complainants would be exposed to the harassment of inquiry into their sexual behavior and to the likelihood of a jury biased against them and for the perpetrator of the alleged crime. [11] A clear directive of the legislature would thereby be flouted.
The holding urged by appellant and by the dissenting opinion would emasculate the Rape Shield Law. The statute is a clear command of the legislature. The raison d'etre of rape shield statutes is partially to correct the manner in which our criminal justice system has approached the victim of a sexual assault. Commonwealth v. Strube, 274 Pa.Super.Ct. 199, 204, 418 A.2d 365, 367 (1979), cert. denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980). The statute also gets rid of the covert notion that a woman who says yes once cannot then be raped. Id. at 205-209, 418 A.2d at 368-370.
Accordingly, we hold that Richard's proposed testimony of the consensual intercourse in the parking garage earlier on in the evening was evidence of prior sexual conduct within the meaning of the statute, and is barred. Had the defendants chosen to place consent at issue, the statute sets forth the procedure for so doing. 18 Pa.C.S.A. § 3104(b). However, as the defendants chose merely to deny the act complained of, and not to follow the statutory procedure, the statute applies in this situation to bar the admission of this testimony altogether.
The judgment of sentence is affirmed.
MONTEMURO, J., files a dissenting opinion in which SPAETH, CAVANAUGH, WIEAND and POPOVICH, JJ., join.
DiSALLE and SHERTZ, JJ., did not participate in the consideration or decision of this case.
The Rape Shield Law, 18 Pa.C.S.A § 3104, reads as follows:
(a) General rule.--Evidence of specific instances of the...
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