Opinion
No. 2540 EDA 2018
07-01-2019
COMMONWEALTH of Pennsylvania, Appellant v. John E. JERDON Jr., Appellee
Andrew S. Kovach, Assistant District Attorney, Media, for Commonwealth, appellant. Christopher A. Hemmel, Springfield, for appellee.
Andrew S. Kovach, Assistant District Attorney, Media, for Commonwealth, appellant.
Christopher A. Hemmel, Springfield, for appellee.
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS , P.J.E.
Former Justice specially assigned to the Superior Court.
OPINION BY STEVENS, P.J.E.:
The Commonwealth of Pennsylvania appeals from the Order entered in the Court of Common Pleas of Delaware County on August 16, 2018, granting the pre-trial Motion to Admit Evidence of Sexual Conduct Pursuant to 18 Pa.C.S.A. § 3104 (Rape Shield Law) filed by Appellee John E. Jerdon, Jr. Following our review, we reverse and remand.
The trial court set forth the facts and brief procedural history herein as follows:
[Appellee] has been charged with Indecent Assault1 and Corruption of Minors.2 The charges stem from an allegation that [Appellee] engaged in sexual touching of the victim from 1997 through 1999, when the victim was twelve to fourteen years old and [Appellee] was thirty-three to thirty-five years old. The matter was initially reported to police on October 30, 1999 after [Appellee's] stepson, Michael Kane, allegedly witnessed [Appellee] engaging in sexual touching of the victim in [Appellee's] bedroom. (Affidavit of Probable Cause, 12/15/16, pp. 1-2) A domestic altercation between [Appellee] and Mr. Kane ensued and the police were called. When interviewed, the alleged victim denied that any sexual touching occurred between her and [Appellee]. (Upland Borough Police ‘Incident Report 19991030M1, 10/29/99) The matter remained open "pending further investigation." (Affidavit of Probable Cause, 12/15/16, p. 1) On August 22, 2016, the alleged victim contacted police once again to report the incidents of the sexual touching from 1997 through 1999. Charges for the instant action were filed against [Appellee] in response to said report and investigation.
On May 11, 2018, [Appellee] filed a Motion to Admit Evidence of Sexual Conduct Pursuant to 18 Pa.C.S. § 3104. [Appellant's] basis for said motion was that two of the Commonwealth witnesses, the complainant and [Appellee's] stepson, Michael Kane, had a prior romantic and sexual relationship with each other. Since the two were, and still are, expected to corroborate each other's testimony, and the case is expected to be based on a "he said, she said" type of testimony, evidence of the relationship is relevant to show bias and to attack credibility. The court held an in-camera rape shield hearing on [Appellee's] motion on May 14, 2018 and May 16, 2018. [Appellee] submitted a memorandum in support of his motion and then filed a second memorandum in support of his motion on May 17, 2018. On July 10, 2018, [Appellee] filed a brief in support of his Motion and the Commonwealth submitted a response to the [Appellee's] brief. On August 16, 2018, this court entered an order granting [Appellee's] motion. The Commonwealth filed a Motion for Reconsideration on August 21, 2018, which was denied by order filed August 23, 2018.
On August 28, 2018, the Commonwealth filed [its] Notice of Appeal of the court's August 16, 2018 order pursuant to Pa.R.A.P. 313 (Collateral Orders). On September 4, 2018, this court issued an order requiring Appellant to file a Concise Statement of Matters Complained of on Appeal. Appellant filed said Statement on September 19, 2018[.]
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1 18 Pa.C.S. 3126.
2 18 Pa.C.S. 6301.
Trial Court Opinion, filed 10/26/18.
In its Concise Statement of Matters Complained of on Appeal, the Commonwealth presented three allegations of trial court error. In its brief, the Commonwealth presents the following question for this Court's review:
Did the trial court commit reversible error in granting [Appellee's] motion to pierce the Rape Shield Statute ( 18 Pa.C.S. § 3104 ) by allowing admission of the complainant's alleged, consensual sexual activity with a third party when the alleged other sexual conduct did not show the complainant's bias, motivation
to fabricate, lie, or seek retribution or lack of credibility with respect to the allegations of indecent contact between her and [Appellee] nearly 20 years ago when she was under 16 years of age?
Commonwealth's Brief at 5.
Before we may address the merits of the Commonwealth's issue, we must determine whether we have jurisdiction to entertain this appeal. B.L. v. T.B. , 152 A.3d 1014, 1016 (Pa.Super. 2016) (a court may raise question of subject matter jurisdiction sua sponte ). As stated previously, this appeal lies from the August 16, 2018, pretrial order granting Appellee's motion in limine to admit evidence of complainant's other sexual conduct with a third party. We recently explained in Commonwealth v. Parker , 173 A.3d 294 (Pa.Super. 2017) :
Appellate review of any court order is a jurisdictional question defined by rule or statute. This principle applies to appellate review of a pretrial order. A court may consider the issue of jurisdiction sua sponte . In evaluating our jurisdiction to allow [a party's] appeal, we look to other criminal cases involving appeals of pretrial orders .... In this Commonwealth, an appeal may only be taken from: 1) a final order or one certified by the trial court as final; 2) an interlocutory order as of right; 3) an interlocutory order by permission; or 4) a collateral order.
Id. at 296 (quotation marks and citations omitted).
A final order is defined as any order that: "(1) disposes of all claims and of all parties; or (3) is entered as a final order pursuant to [ Pennsylvania Rule of Appellate Procedure 341(c) ]." Pa.R.A.P. 341(b). Instantly, the parties agree that the appeal does not lie from a final order, and the Commonwealth has not included a certification under Rule 311 in its notice of appeal. Instead, the Commonwealth argues the order on appeal implicates the collateral order doctrine under Pa.R.A.P. 313.
Even had the Commonwealth included this certification, our Supreme Court has limited the application of Rule 311(d) to circumstances in which a "pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence." Commonwealth v. Shearer , 584 Pa. 134, 882 A.2d 462, 467 (2005) (citations omitted). As a result, Rule 311(d) does not confer jurisdiction upon this Court to consider an interlocutory appeal from an order filed by the Commonwealth to preclude the introduction of defense evidence. Id. See also , Commonwealth v. Cosnek , 575 Pa. 411, 836 A.2d 871, 877 (2003).
With regard to the category of interlocutory appeals by permission under Pa.R.A.P. 312, the trial court did not certify the instant order for immediate appeal, and, as stated previously, the Commonwealth did not file a petition for permission to appeal under Pa.R.A.P. 311.
Rule 313, like Rule 311(d), provides an exception to the general rule that an appeal may be taken only from final orders. Rule 313 provides:
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313.
An order is collateral if (1) it is separable from and collateral to the main cause of action; (2) involves a right that is too important to be denied review; and (3) presents a question, which is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Shearer , 584 Pa. at 142, 882 A.2d at 468. Rule 313 is jurisdictional in nature. See Parker , 173 A.3d at 297. As a result, if a non-final order satisfies each of the requirements articulated in Rule 313, it is immediately appealable. Id. Notwithstanding, this court construes the collateral order doctrine narrowly to avoid piecemeal determinations and protracted litigation. Id. Before an order can be considered collateral, each prong of the collateral order doctrine must be clearly present. Id.
Instantly, Appellee seeks to introduce evidence of an alleged romantic relationship between complainant and Appellee's stepson Michael Kane. Appellee posits such evidence is relevant to show that the two had a motive to fabricate sexual assault charges and to show their bias as well as attack their credibility. The trial court's decision in this regard is separable from the underlying cause of action, as it can be decided without a consideration of whether Appellee is guilty of the charges. Simply stated, this Court need not consider Appellee's potential guilt or innocence of the crimes charged in resolving this appellate issue; therefore, the first requirement of the collateral order doctrine clearly has been met.
In Geniviva v. Frisk , 555 Pa. 589, 599, 725 A.2d 1209, 1214 (1999), our Supreme Court clarified that the second prong is satisfied when the claim implicates rights "deeply rooted in public policy going beyond the particular litigation at hand" and does not merely affect the individuals involved in the case at hand. Numerous cases have espoused the importance of the Commonwealth's interest in protecting the complainant's privacy pursuant to the Rape Shield Law while at the same time narrowly defining exceptions to that Law to ensure the accused's constitutional right to confront witnesses is not violated. As such, we find the Commonwealth has met the second prong of the collateral order doctrine.
Finally, if appellate review of this issue is delayed until final judgment in this case, and in the event of an acquittal, the Commonwealth's ability to pursue an issue pertaining to the introduction of the complainant's sexual conduct with a third party will be irreparably lost due to the constitutional prohibition against double jeopardy. Moreover, once testimony pertaining thereto has been heard, there is no way to reverse the clock so as to provide the Commonwealth relief on its claim that the complainant's privacy in this regard should be protected were that claim ultimately proven to have merit. See Shearer , supra , at 144, 882 A.2d at 469. Thus, we find all three prongs of the collateral order doctrine have been satisfied and proceed to consider the merits of the issue the Commonwealth presents in its appellate brief.
"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. K.S.F. , 102 A.3d 480, 483 (Pa.Super. 2014) (citations omitted). "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 of record, discretion is abused." Id. (citation and quotation omitted). The Rape Shield Law provides, in pertinent part, as follows:
§ 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 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(a). The purpose of the Rape Shield Law is "to prevent a trial from shifting its focus from the culpability of the accused toward the virtue and chastity of the victim." Commonwealth v. Burns , 988 A.2d 684, 689 (Pa.Super. 2009) (citation omitted), appeal denied , 608 Pa. 615, 8 A.3d 341 (2010). Moreover, "[t]he Rape Shield Law is intended to exclude irrelevant and abusive inquiries regarding prior sexual conduct of sexual assault complainants." Id. See also Commonwealth v. Largaespada , 184 A.3d 1002, 1006 (Pa.Super. 2018), appeal denied , 649 Pa. 534, 197 A.3d 223 (2018).
"[P]rior sexual conduct with third persons is ordinarily inadmissible to attack the character of the prosecutrix in sex offense cases. 1A Wigmore, Evidence § 62 (Tillers rev. 1983)." Commonwealth v. Black , 337 Pa.Super. 548, 487 A.2d 396, 398 (1985) see also Commonwealth v. Fink , 791 A.2d 1235, 1241-42 (Pa.Super. 2002). Notwithstanding, where "the evidence of prior sexual conduct was not offered merely to show any general moral turpitude or defect of the prosecutrix, but rather to reveal a specific bias against and hostility toward appellant and a motive to seek retribution by, perhaps, false accusation[,]" the evidence may be admissible. Black , at 398-399.
In addition, the Rape Shield Law applies to sexual activity that occurred before trial regardless of whether it was before or after the alleged sexual assault. See Commonwealth v. Jones , 826 A.2d 900, 908-909 (Pa.Super. 2003) ("[The Pennsylvania Supreme Court has explained that the specific purpose of the Pennsylvania Rape Shield Law is to prevent a sexual assault trial from degenerating into an attack upon the collateral issue of the complainant's reputation rather than focusing on the relevant legal issues and the question of whether the events alleged by the complainant against the defendant actually occurred. This purpose is not fostered by limiting application of our Rape Shield Law to sexual conduct that occurred before the incident giving rise to criminal charges but allowing a defendant to besmirch a complainant with accusation and innuendo based on her conduct after an alleged rape.").
In K.S.F. , this Court further explained:
Although the literal language of the Rape Shield Law would appear to bar a wide range of evidence, courts have interpreted the statute to yield to certain constitutional considerations implicating the rights of the accused. See, e.g., Commonwealth v. Riley , 434 Pa. Super. 414, 643 A.2d 1090, 1093 (Pa. Super. 1994) (right to cross-examine witnesses).
Evidence that tends to impeach a witness' credibility is not necessarily inadmissible because of the Rape Shield Law. [ Commonwealth v. Black , 337 Pa. Super. 548, 487 A.2d 396, 401 (Pa. Super. 1985) ]. When determining the admissibility of evidence that the Rape Shield Law may bar, trial courts hold an in camera hearing and conduct a balancing test consisting of the following factors: "(1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there
are alternative means of proving bias or motive or to challenge credibility." Id.
K.S.F. , 102 A.3d at 483-484. As such, evidence of a claimant's sexual history may be admissible if "the evidence is relevant to exculpate the accused, more probative than prejudicial, and non-cumulative in nature." Commonwealth v. Guy , 454 Pa.Super. 582, 686 A.2d 397, 401 (1996), appeal denied , 548 Pa. 645, 695 A.2d 784 (Pa. 1997).
Herein, in his Motion to Admit Evidence of Sexual Conduct Pursuant to 18 Pa.C.S.A. § 3104, filed on May 11, 2018, Appellee proffered evidence of alleged prior, consensual sexual conduct between the claimant and Michael Kane to challenge their credibility and to explain their bias and motivation to fabricate the sexual assault allegations against Appellee. See Memorandum of Law and Offer of Proof in Support of Motion, 5/11/18, at 2. Following the in camera hearings which the trial court held on May 14, 2018, and May 16, 2018, to address the Black factors, the trial court explained its rationale for admitting the evidence as follows:
At the hearing held on May 14, 2018 and May 16, 2018, [Appellee] offered the testimony of Jessyca Jerdon, [Appellee's] daughter. Jessyca testified that in the summer of 1999, she and two friends were on the porch of the Jerdon house when she observed through the window, her brother, Michael Kane, sitting on the couch with the complainant on top of him moving up and down. (N.T., 5/14/18, pp. 6-9) The complainant was wearing a t-shirt with nothing below it. (N.T., 5/14/18, p. 8) Ms. Jerdon immediately told her sister, Chrissy, who went into the home yelling at Mr. Kane. The complainant ran out of the house without looking back. (N.T., 5/16/18, pp. 24-27) After Ms. Jerdon became fully aware of the nature of the charges filed against [Appellee], she voluntarily told defense counsel about the incident between Kane and the complainant. (N.T. 5/16/18, p. 56)
The Commonwealth presented the testimony of Michael Kane who testified that he never had sex with the complainant, but had been caught by [Appellee] on the couch with a girlfriend before. (N.T., 5/16/18, p. 77) Kane further testified that he dated multiple girls around that time and some had blond hair like complainant. (Id. p. 78) He also explained that he never had feelings of jealousy toward [Appellee]. ( Id. ) On cross-examination, it was revealed that Mr. Kane had convictions for crimen falsi in 2004, 2009, and 2013 and that he was involuntarily confined to the Horsham Clinic for a period of approximately three months before moving to a group home. (N.T., 5/16/18, pp. 79-88)
At the conclusion of the hearing, the Commonwealth represented that they had an officer look into the property and stipulated that it was possible to see into the living room from the porch. (N.T., 5/16/18, p. 97)
After careful consideration of the information presented at the in-camera hearing, this court determined that evidence of a sexual relationship between the complainant and Michael Kane is 1) relevant to show bias, motive, or attack the credibility of the corroborating witness Michael Kane; 2) the probative value of said evidence outweighs its prejudicial effect; and 3) there are no alternative means of proving this bias, motive, or challenge to credibility. Much like in the Black case, evidence of a relationship between the complainant and Kane is relevant as it goes to the witness Kane's credibility, feelings, motive and bias. [Appellee] asserts that Michael Kane falsely accused him in an
attempt to remove him from the home so that he could continue his sexual relationship with complainant. It may likewise be relevant as evidence of the complainant's bias, as Michael Kane was sent from the home he shared with [Appellee] shortly after the allegations were made in 1999. Moreover, the defense contends that the complainant and Mr. Kane continue to have a close relationship. This evidence could certainly raise a question in the minds of the jurors as to complainant's bias in favor of Kane and against [Appellee]. It can also raise a question as to Kane's bias against [Appellee] and towards complainant. Whether this testimony is believed by the jury is not at issue; the issue to consider is whether it is relevant and should be submitted to the jury for consideration. A matter is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Pa.R.E. 401.
This court determined that the probative value of the proposed testimony outweighs its prejudicial effect. This court is acutely aware of the delicate balancing test presented in this situation; [Appellee's] 6th Amendment right to confrontation versus the complainant's right to protect her reputation. In this instance, however, the Rape Shield Law must yield to the [Appellee's] 6th Amendment protections. As was addressed in Commonwealth v. Black , where the Rape Shield Law would prohibit the admission of evidence which would show bias, interest or attack credibility, it unconstitutionally infringes on the Sixth Amendment right of confrontation. The court finds that the proposed evidence is sufficiently probative that to deny its admission would unconstitutionally infringe on [Appellee's] 6th Amendment right. The evidence of the sexual relationship between the complainant and the witness is not introduced to besmirch the character of the complainant. Its primary probative value is as to the testimony of Michael Kane. His testimony is offered as an alleged eyewitness. The importance cannot be minimized. It is the relationship between Kane and the complainant that [Appellee] suggests is the reason for the initial allegation and for the current support of the complainant. Moreover, the fact that the alleged sexual conduct happened nearly twenty years ago; that the complainant is now an adult; and that the alleged conduct was that of teenage contemporaries mitigate against its exclusion. In essence, the fact of the alleged bias or prejudice of the witness Kane or complainant outweighs any shame or reputation damage to the complainant. The court does not believe that the proposed testimony is confusing or that it would create a trial within a trial regarding that alleged sexual conduct. The proposed testimony is no more confusing than any other testimony offered to show bias, interest or attack the credibility of a witness,
The Commonwealth suggests that the witness' bias could be proved absent the offending testimony. However, the defense can only present the evidence they have. Kane has denied not only the allegation of a sexual relationship, but he denies any relationship at all. The defense cannot suggest bias by less offensive testimony as the defense has no other evidence to present to suggest the bias, impartiality or credibility of the witness.
This court submits that its application of the factors as set forth in Black were not misapplied nor was the court's decision "manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill will" and therefore there has been no abuse of discretion.
Trial Court Opinion, filed 10/26/18, at 5-8 (emphasis in original).
We disagree with the trial court's determination following its application of the Black factors. The trial court stressed that testimony regarding the alleged sexual encounter between the complainant and Michael Kane twenty years ago is relevant to show why the pair initially brought accusations against Appellee and reasons that it is primarily probative to impeach Kane's testimony as an eyewitness who continues to have a relationship with the complainant. Even assuming, arguendo , that the alleged sexual encounter between the complainant and Kane had occurred, this simple fact is not relevant to show the complainant, who initially denied any sexual contact between Appellee and her, would have a motive to lie or was motivated by bias or hostility toward Appellee when reporting to police in 2016 allegations that Appellee had sexually assaulted her. Simply put, evidence of a sexual encounter between the complainant and Kane is just that, evidence of a sexual relationship, and is insufficient alone to infer a motive on her part to contrive the present allegations of sexual assault. Accordingly, we find the proposed evidence is irrelevant to show the complainant's bias or motive, or to attack her credibility; therefore, the first prong of the Black test has not been satisfied.
With regard to the second prong of the Black test, we find the prejudicial impact of the proposed evidence would far outweigh any probative value as it serves no purpose other than to shift the fact-finder's focus "from the culpability of the accused toward the virtue and chastity of the victim[,]" which is what the Rape Shield Law was intended to preclude. Burns , 988 A.2d at 689. In Commonwealth v. Johnson , 389 Pa.Super. 184, 566 A.2d 1197 (1989), affirmed , 536 Pa. 153, 638 A.2d 940 (1994), this Court held "the Rape Shield Law is a bar to admission of testimony of prior sexual conduct involving a victim, ... unless it has probative value which is exculpatory to the defendant." Id. at 1202. Moreover, "[t]he Black Court's express motivation for the test is to exclude relevant evidence that would ‘so inflame the minds of jurors that its probative value is outweighed by unfair prejudice.’ 487 A.2d at 401 (citing Commonwealth v. Stewart , 304 Pa. Super. 382, 450 A.2d 732, 734 (Pa. Super. 1982) )(quotation marks omitted)." K.S.F. , 102 A.3d at 484-485.
Appellee has failed to show how evidence of the complainant's alleged one-time sexual encounter with Michael Kane would exculpate him. Appellee makes bald allegations unsupported by citations from the in camera hearing that the complainant and Kane were involved in a sexual relationship and that complainant fabricated false charges against Appellee in an effort to have him arrested and removed from the home he shared with Kane so the two could continue their affair without Appellee's interference. Appellee's Brief at 33-34. Appellee's allegations throughout his appellate brief are in the past tense, for he reiterates that the couple "wanted" Appellee out of their way, and that Kane "was biased against [Appellee]" and "wanted vengeance." See e.g. , Brief for Appellee at 37, 43.
However, it is difficult to discern how this alleged encounter could be the motivating factor for the claimant's decision to come forward with allegations of abuse against Appellee in 2016, especially in light of the fact that she denied any abuse seventeen years earlier in 1999. To the contrary, it has no relevance to whether or not Appellee sexually assaulted the complainant when she was between the ages of twelve to fourteen years old, and, instead, tends to smear the victim's character and inflame the minds of the fact-finders. As such, the probative value of the evidence to the extent it may be used to show Kane's or the complainant's bias or motivation to lie is so low, and the defense theory of a motive to lie seventeen years later with no evidence of an ongoing relationship is so implausible, that the evidence is admissible.
Finally, upon a consideration of the third element of the Black test which questions whether there are alternative means of proving bias or motive, or of challenging credibility, this Court has explained that:
Our jurisprudence is scant on instances that have explored this factor in depth, however, several cases are instructive. In Commonwealth v. Weber , 450 Pa.Super. 32, 675 A.2d 295, 302 (Pa.Super. 1996), rev'd on other grounds 549 Pa. 430, 701 A.2d 531 (Pa. 1997), this Court found that the third prong was not satisfied where the evidence sought to be admitted only added to a short list of evidence that tended to attack the victim's credibility. The Weber Court admitted the evidence, however, because it also tended to show the victim's motive. Id. In Commonwealth v. Killen , 545 Pa. 127, 680 A.2d 851, 854 (Pa. 1996), our Supreme Court held that suggestive statements made by the victim shortly after the alleged sexual assault, in which she appeared jovial, were admissible, not to show her promiscuous demeanor, but to undermine the credibility of her claims that she had been sexually assaulted. The court noted that this evidence did not speak to past behavior, but directly to the crime charged, and therefore was not barred by the Rape Shield Law. Id.
K.S.F. , 102 A.3d at 485.
In the matter sub judice , Appellee can undermine both the complainant's and Michael Kane's credibility in numerous ways that do not involve their alleged sexual activity in 1999. For one, defense counsel can cross-examine the complainant and Kane concerning the "close relationship" Appellee maintains the two continue to share, see Brief for Appellee at 29-30, 33, 37, in an effort to show bias on the part of each. Moreover, Appellee admits that "evidence exists that Kane was biased against [Appellee] for other reasons," and goes on to discuss the former's "troubled psychiatric history." Id. at 37-39. In fact, Appellee concedes in his appellate brief that he had Kane committed involuntarily at least once. Id. at 9 (citing N.T. 5/16/18, at 75-95). In addition, the complainant could be questioned regarding whether she knows Kane as well as her initial denial of any sexual abuse at the hands of Appellee and her decision to come forward with those allegations almost two decades later.
In light of the foregoing, this case is distinguishable from prior case law that found certain victim prior sexual conduct evidence relevant, probative and admissible. See Commonwealth v. Northrip , 945 A.2d 198, 201 (Pa.Super. 2008), appeal denied , 598 Pa. 788, 959 A.2d 929 (2008) (noting trial court erred when it prevented appellant-father's wife from testifying as to victim-daughter's motive to fabricate the allegations against defendant where: (1) victim-daughter had a sexual relationship with her stepbrother, (2) victim-daughter threatened to retaliate if anyone told her mother; (3) appellant-father and wife scheduled a time to talk to the victim's mother; and (4) victim-daughter then went to the police and reported that appellant-father sexually abused her); Commonwealth v. Fernsler , 715 A.2d 435 (Pa.Super. 1998) (evidence that victim-son was in a juvenile sex offenders program for conduct towards his half-sister was admissible to show he fabricated sexual abuse allegations against appellant-father in order to receive more lenient treatment). Instead, we find the instant matter more akin to Commonwealth v. Poindexter , 372 Pa.Super. 566, 539 A.2d 1341 (1988) wherein this Court reasoned and held as follows:
In the present case, appellant argues that testimony about A.P.'s prior sexual activity with her boyfriend would have shown that A.P. was motivated to press charges against appellant, her father, because of domestic difficulties arising from her relationship with her boyfriend which her father did not approve of and which he had sought to discontinue by filing charges against her boyfriend. We find that the trial court properly limited the scope of defense counsel's cross-examination since the evidence he sought to elicit had little probative value and was highly prejudicial. Whether A.P. was sexually active with an adult boyfriend was irrelevant on the issue of whether appellant had intercourse with her. As the trial court explained in its opinion, what was relevant was that appellant had filed charges against A.P.'s boyfriend, from which the jury could have inferred that A.P. was pressing the instant charges against appellant in retaliation; this, defense counsel was allowed to argue and show. See N.T. 1/21/85 at 105–110. By excluding non-probative and highly prejudicial evidence of prior sexual conduct, the trial court did nothing to hamper appellant's defense that A.P. filed the charges against him in retaliation for appellant's filing of charges against her boyfriend.
Id. at 1344.
In sum, we find the trial court erred in granting Appellee's motion in limine to present evidence of complainant's alleged prior sexual conduct with Michael Kane. Upon remand, the trial court shall preclude Appellee from questioning complainant about the sexual nature of her relationship with Kane.
Order reversed. Case remanded with instructions. Jurisdiction relinquished.
Judge McLaughlin joins the opinion.
Judge Lazarus files a dissenting opinion.
DISSENTING OPINION BY LAZARUS, J:
I respectfully dissent. I would affirm the trial court's order granting the Appellee's motion to pierce the Rape Shield Law. The trial court properly applied the three-prong balancing test outlined in Commonwealth v. Black , 337 Pa.Super. 548, 487 A.2d 396 (1985), and determined that the circumstances here required the statute to yield to Appellee's constitutional right to confrontation and cross-examination. I find no clear abuse of discretion. Commonwealth v. Holder , 815 A.2d 1115, 1118 (Pa. Super. 2003).
The Majority recognizes that the purpose of the Rape Shield Law is to prevent a trial from shifting its focus from the culpability of the accused toward the virtue and chastity of the victim. See Commonwealth v. Allburn , 721 A.2d 363, 366-67 (Pa. Super. 1998). See also Commonwealth v. Burns , 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (Rape Shield Law "exclude[s] irrelevant and abusive inquiries regarding prior sexual conduct of sexual assault complainants."). The statute may not, however, be used to exclude relevant evidence showing a witness' bias or attacking a witness' credibility; it may not be used to exclude evidence that may tend to directly exculpate the accused by showing that the complainant is biased and thus "has a motive to lie or fabricate" is admissible at trial. Commonwealth v. Guy , 454 Pa.Super. 582, 686 A.2d 397, 401 (1996). See Commonwealth v. Johnson , 389 Pa.Super. 184, 566 A.2d 1197, 1202 (1989) ("Rape Shield Law is a bar to admission of testimony of prior sexual conduct involving a victim ... unless it has probative value which is exculpatory to the defendant.").
Here, following the in camera hearing, the trial court determined that evidence of an alleged romantic relationship between the complainant and Appellee's stepson, Michael Kane: (1) was relevant to show bias, motive, or to attack the credibility of the corroborating witness (Kane); (2) the probative value of the evidence outweighed its prejudicial effect; and (3) there were no alternative means of proving this bias or motive, or to challenge Kane's credibility. Black , supra . The court determined that, like in Black , evidence of the relationship between the complainant and Kane was relevant inasmuch as it bore on both the complainant's and Kane's credibility, motive and bias. In particular, the trial court notes that Appellee asserts that Kane falsely accused him of sexual contact with the complainant seventeen years prior, in 1999, in an attempt to remove him from the home so that Kane could continue his relationship with complainant, and that Kane was sent from the home he shared with Appellee shortly after the 1999 allegations. Clearly, this evidence was not offered merely to show any general moral turpitude or defect of the complainant, "but rather to reveal a specific bias against or hostility toward [Appellee] and a motive to seek retribution by, perhaps, false accusation." Black , supra at 398-99. Exposure of Kane's motivation could raise a question in the minds of the jurors as to Kane's bias toward Appellee and in favor of the complainant, as well as to the complainant's motivation or bias against Appellee and in favor of witness Kane. Notably, the complainant and Kane, the alleged eyewitness, continue to have a relationship.
When interviewed by police after this accusation, the complainant denied that any sexual touching occurred between her and Appellee. See Trial Court Opinion, 10/26/18, at 1, citing Upland Borough Police Incident Report 19991030M1, 10/29/99.
I agree with the trial court's assessment that this evidence is necessary to allow the jury to make a fair determination of Appellee's guilt or innocence. In sum, I disagree with the Majority's conclusion that the evidence is not relevant to show complainant's bias or motive, or to attack her credibility. Majority Opinion, at 12-13. As applied to the Rape Shield Law, "relevant evidence is that which may tend to directly exculpate the accused by showing, inter alia , bias, hostility, motive to lie or fabricate , evidence of a sexual encounter with another person on the date in question, or impeachment by use of a prior inconsistent statement." Guy , 686 A.2d at 401 (emphasis added). The evidence could seriously undermine the Commonwealth's prosecution in this case and, in my opinion, the Majority fails to grasp fully its relevance or probative value. See Guy , supra at 41 (intent of statute is to exclude evidence that is irrelevant to the truth-determining process).
As both the trial court and Majority recognize, courts have struggled to strike a balance between a defendant's constitutional right to cross-examination and the desire to protect the reputation of a sexual abuse complainant. In Commonwealth v. K.S.F. , 102 A.3d 480 (Pa. Super. 2014), this Court stated that although the language of the Rape Shield Law "would appear to bar a wide range of evidence, courts have interpreted the statute to yield to certain constitutional considerations implicating the rights of the accused." Id. at 483. See Commonwealth v. Spiewak , 533 Pa. 1, 617 A.2d 696, 702 (1992). The Majority's application of the Rape Shield Law here restricts Appellee's right to confrontation and cross-examination. It is critical the statute yield here. See Black , supra at 401-02 ("[I]nsofar as the Rape Shield Law purports to prohibit the admission of evidence which may logically demonstrate a witness' bias, interest or prejudice or which properly attacks the witness' credibility, it unconstitutionally infringes upon an accused's right of confrontation under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.).
I would affirm the trial court's order.