Com. v. Fink

791 A.2d 1235

COMMONWEALTH of Pennsylvania, Appellee, v. Sterling Clair FINK, Appellant.

Superior Court of Pennsylvania.

Submitted October 30, 2001.

Filed February 8, 2002.

William C. Costopoulos, Lemoyne, for appellant.

Christopher A. Ferro, Asst. Dist. Atty., York, for Commonwealth, appellee.

Before STEVENS, LALLY-GREEN, and BROSKY, JJ.

LALLY-GREEN, J.

¶ 1 Appellant, Sterling Clair Fink, appeals the judgment of sentence entered following his jury convictions of involuntary deviate sexual intercourse (IDSI), indecent assault, and corruption of minors. We affirm in part and remand in part.

¶ 2 The record reveals that the convictions stemmed from two allegations of sexual abuse between Appellant and the 11-year-old daughter of his former girlfriend at his home/business in late December 1999.

¶ 3 Appellant was found guilty of IDSI, indecent assault, and corruption of minors. The trial court sentenced Appellant to a term of imprisonment of 6½ to 13 years on the IDSI conviction. The trial court found that the indecent assault conviction merged with IDSI for sentencing purposes. Appellant was also sentenced to a term of imprisonment of 1 to 2 years for the corruption of minors conviction, to run concurrently with his other sentence. Appellant then filed a timely appeal.

¶ 4 Appellant raises the following issues for our review:

A. Whether the court abused its discretion in refusing to permit Appellant to introduce specific evidence of prior sexual conduct involving the prosecutrix at the relevant times, including the fact she was receiving psychiatric treatment for an unrelated sexual assault, that her babysitter's boyfriend may have assaulted her and that Appellant observed her with a boy zippering his pants, all of which evidence was admissible to rebut the mother's testimony about a change in behavior in her daughter, to provide an alternative explanation for her unusual sexual knowledge and her partially open hymen, and to show her bias against him?

B. Whether the court abused its discretion in concluding that the alleged victim was unavailable when she testified that she could not remember one of the incidents with which Appellant was charged and in permitting the introduction of her preliminary hearing testimony at trial and by not permitting counsel to argue to the jury the circumstances surrounding the introduction of the prosecutrix's preliminary hearing testimony? C. Whether counsel was ineffective for failing to object to the hearsay testimony of the physician who examined the prosecutrix and whose detailed recitation of the history of the alleged incidents provided by her was tantamount to identifying appellant as the perpetrator and otherwise failed to meet the medical treatment exception to the hearsay rule?

D. Whether counsel was ineffective for failing to object to the physician's testimony in which she stated that, in her expert opinion, the examination of the prosecutrix was consistent with the history of allegations provided by the prosecutrix, which testimony improperly bolstered the alleged victim's credibility and invaded the province of the jury?

E. Whether the court abused its discretion in refusing to allow Appellant to introduce evidence contradicting the prosecutrix's claim that she first told a friend at school about the incidents in question, which was admissible under several exceptions to the hearsay rule, and defense counsel was ineffective for failing to call said friend as a witness in order to impeach the prosecutrix?

F. Whether the court abused its discretion in refusing to allow Appellant to introduce evidence that the prosecutrix gave a prior statement to a counselor with children and youth services which significantly conflicted with her trial testimony?

Appellant's Brief at 5.

¶ 5 Appellant first asserts that the trial court erroneously barred Appellant from admitting into evidence three instances of the victim's alleged prior sexual abuse and/or conduct. We will reverse a trial court's ruling on the admissibility of evidence of the sexual history of a sexual abuse complainant only where there has been a clear abuse of discretion. Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa.Super.1998). An abuse of discretion is not merely an error of judgment. Id. An abuse of discretion occurs where the record shows that the trial court, in reaching a conclusion, overrides or misapplies the law, or exercises its judgment in a manifestly unreasonable manner or as the result of partiality, prejudice, bias, or ill will. Id.

¶ 6 Each of Appellant's proffers relates to alleged prior sexual conduct and, thus, triggers an inquiry into the applicability of the Rape Shield Law, 18 Pa.C.S.A. § 3104. The Rape Shield Law prohibits the introduction of evidence relating to the victim's sexual history, including conduct and reputation, and states:

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 the 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). Thus, the Rape Shield Law bars prior instances of sexual conduct except those with the defendant where consent of the victim is at issue and the evidence is otherwise admissible.

¶ 7 Our Supreme Court addressed the type of evidence that is admissible under the Rape Shield Law in Commonwealth v. Johnson, 536 Pa. 153, 638 A.2d 940 (1994),Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992) and Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). The Johnson Court held that the statutory word "conduct" does not include prior sexual assaults and that evidence of prior sexual assaults is admissible as long as such evidence is relevant and material under the traditional rules of evidence. Johnson, 638 A.2d at 942.¹ The Spiewak Court held that evidence that is highly probative of a victim's credibility is admissible in order to allow the jury to make a fair determination of guilt or innocence. Spiewak, 617 A.2d at 702.² The Durst Court held that evidence that someone else in addition to the defendant may have had sexual contact with the victim does not exonerate the defendant. Durst, 559 A.2d at 506.³

¶ 8 Our Court has likewise addressed the Rape Shield Law in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), Commonwealth v. Allburn, supra, and Commonwealth v. Appenzeller, 565 A.2d 170, 388 Pa.Super. 172 (1989).

¶ 9 In Black, our Court held that the Rape Shield Law permitted admission of evidence of the victim's prior sexual activity on the issue of her bias against the defendant, provided that a three-part test was met at an in camera hearing similar to that outlined in 18 Pa.C.S.A. § 3104(b).⁴ Specifically, the trial court is to determine: (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. Black, 487 A.2d at 401.

¶ 10 The Allburn Court held that evidence of a victim's prior sexual activity is not admissible under the Rape Shield Law where the offer of proof showed only prior sexual conduct by the victim with others in addition to the defendant, but did not show how the evidence would exonerate the defendant. Allburn, 721 A.2d at 368.⁵ The Appenzeller Court held that evidence of a prior sexual assault by another man is not admissible to show knowledge by the child victim of sexual techniques or nomenclature. Appenzeller, 565 A.2d at 171.⁶

¶ 11 Finally, our Court has made clear that proffers under the Rape Shield Law must not be vague or conjectural. Commonwealth v. Fernsler, 715 A.2d 435 (Pa.Super.1998).⁷ See also, Commonwealth v. Guy, 454 Pa.Super. 582, 686 A.2d 397 (1996); Commonwealth v. Wall, 413 Pa.Super. 599, 606 A.2d 449 (1992).

¶ 12 To summarize:

• The Rape Shield Law bars prior instances of sexual conduct, except those with the defendant where consent of the victim is at issue and the evidence is otherwise admissible. 18 Pa.C.S.A. § 3104(a).

• If the prior sexual conduct was a prior sexual assault, then the Rape Shield Law does not apply and the evidence is evaluated under the general evidentiary rules. Johnson.

• If the prior sexual conduct does not involve the defendant or involves the defendant but consent is not an issue, then it must be relevant to show bias against the defendant or to attack the credibility of the victim. Black. A three-part test for admissibility applies in such a case. Id.

• If the offer of proof shows only that others in addition to the defendant had sexual contact with the victim, but does not show how the evidence would exonerate the defendant, evidence of prior sexual activity is inadmissible under the Rape Shield Law. Durst; Allburn.

• Evidence of a prior sexual assault by another man is not admissible to show knowledge by the child victim of sexual techniques or nomenclature unless the evidence exonerates the defendant. Durst; Appenzeller.

• Proffers under the Rape Shield Law can not be vague, conjectural, or speculative. Fernsler.

¶ 13 We now examine whether the trial court erred or abused its discretion in disallowing Appellant's proffers following the in camera hearing. The first proffer involved an incident that allegedly occurred at a Christmas party in 1999. Appellant allegedly heard the victim in the attic of the house, called up the attic steps to investigate, and was met by an adolescent boy who was putting on his shirt and zipping up his pants. Trial Court Opinion, 4/24/01, at 6. The boy told Appellant that he was doing "nothing" and the...