Com. v. Guy

Page 397

686 A.2d 397

454 Pa.Super. 582

COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth A. GUY, Appellee.

Superior Court of Pennsylvania.

Submitted Oct. 1, 1996.

Filed Nov. 18, 1996.

Reargument Denied Jan. 14, 1997.

Wayne B. Gongaware, Assistant District Attorney, Greensburg, for appellant Com.

Daniel Joseph, New Kensington, for appellee.

Before KELLY, JOHNSON and OLSZEWSKI, JJ.

OLSZEWSKI, Judge.

In this interlocutory appeal, the Commonwealth of Pennsylvania challenges adverse pre-trial rulings on a motion in limine to exclude evidence of prior sexual conduct of an alleged rape victim, as well as a ruling partially granting a defense request for discovery of drug and alcohol-related hospital records for the same alleged victim.

On March 30, 1994, appellee, Kenneth A. Guy, was arrested and charged by the Westmoreland County District Attorney's Office with one count each of rape, aggravated assault, recklessly endangering another person, kidnapping, and unlawful restraint. On October 11, 1994, a jury trial commenced before the Honorable J. Quint Salmon. On October 14, 1994, Judge Salmon declared a mistrial after the jury declared that they were hopelessly deadlocked. Appellee was thereafter appointed new counsel, Daniel Joseph, Esquire, and the case was re-scheduled to be heard before the Honorable Gary Caruso.

Prior to trial, appellee filed a number of pre-trial motions, prompting the Commonwealth to file a motion in limine seeking to prevent the defense from: (1) presenting evidence of the victim's prior sexual conduct and (2) introducing evidence of prior drug use by the victim, including drug and alcohol records compiled by a local hospital subsequent to the alleged attack. The parties briefed the issues, and on November 9, 1995, Judge Caruso held an in camera hearing at which time he heard further argument from the parties.

Concerning the evidence relating to prior sexual conduct of the victim, Judge Caruso issued an order ruling that the contested evidence could be introduced to attack the credibility of the victim, should she testify at trial in a manner inconsistent with the proffered evidence. The court further ruled that the evidence was inadmissible for the purpose of showing bias or reason to fabricate, as the proffer by the defense was insufficient on the matter.

With respect to the drug and alcohol records from Westmoreland Regional Hospital, Judge Caruso ruled that the records were subject to an absolute statutory privilege and could not be used by either the Commonwealth or appellee in their cases-in-chief. Additionally, Judge Caruso ruled that the statutory privilege could be waived by the victim and used to impeach her credibility on cross-examination if she testified at trial in a manner at variance with the records.

The Commonwealth then requested that Judge Caruso stay the proceedings and certify the issue for appeal. Judge Caruso denied the motion, and on November 14, 1995, the Commonwealth filed an emergency application for stay and a petition for review to this Court. On that same day, the application for stay was granted by per curiam order. The petition for review was subsequently granted on January 30, 1996. ¹

Although this matter has not yet proceeded to re-trial, the parties are in agreement that appellee and the alleged victim engaged in sexual intercourse on the night in question. Thus, the central factual determination to be adduced at trial will be whether the encounter was consensual.

Our standard of review when evaluating evidentiary issues is well settled. Trial judges are afforded broad latitude and discretion in determining the admissibility of evidence. Their learned determinations will not be disturbed absent a finding of an abuse of discretion. See, e.g., Commonwealth v. Wharton, 530 Pa. 127, 145, 607 A.2d 710, 719 (1992); Commonwealth v. Holloman, 424 Pa.Super. 73, 78-79, 621 A.2d 1046, 1049 (1993).

The issue of whether an alleged victim's past sexual history is admissible at trial requires a careful examination of this state's Rape Shield Law, as well as the voluminous caselaw that has developed over the years interpreting it. Pennsylvania's Rape Shield Law provides, in pertinent part:

3104. Evidence of victim's past 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(a).

The purpose of the Rape Shield statute is to prevent a trial from shifting its focus away from the culpability of the accused towards the virtue and chastity of the victim. By so doing, the legislature hoped to end the practice of those defense attorneys who elected to try the victim instead of defend their client. See, e.g., Commonwealth v. Weber, 450 Pa.Super. 32, 40, 675 A.2d 295, 298-99 (1996); Commonwealth v. Widmer, 446 Pa.Super. 408, 421-22, 667 A.2d 215, 222 (1995); Commonwealth v. Smith, 410 Pa.Super. 363, 367, 599 A.2d 1340, 1342 (1991).

In addition to the specific exception pertaining to prior consensual intercourse between the accused and the victim delineated in the statute, our Courts have recognized several other instances in which an alleged victim's prior sexual history may be introduced at trial. These exceptions to the general rule have been recognized in an effort to reconcile the effect of the statute in excluding evidence with the accused's sixth amendment right to confrontation and cross-examination. Specifically, evidence tending to directly exculpate the accused by showing that the alleged victim is biased and thus has a motive to lie, fabricate, or seek retribution is admissible at trial. See, e.g., Weber, 450 Pa.Super. at 42-43, 675 A.2d at 300; Widmer, 446 Pa.Super. at 421-22, 667 A.2d at 222; Commonwealth v. Wall, 413 Pa.Super. 599, 618-19, 606 A.2d 449, 459, alloc. denied, 532 Pa. 645, 614 A.2d 1142 (1992); Smith, 410 Pa.Super. at 367, 599 A.2d at 1342.

In an effort to ensure that evidence of a victim's past sexual conduct is truly relevant and exculpatory, our appellate Courts have developed a detailed procedure that the parties and the trial court must follow prior to admission of the evidence. Initially, a defendant wishing to introduce such evidence must make a specific, written proffer to the court. Once this threshold is fulfilled, the trial judge is required to hold an in camera hearing to determine whether the evidence is relevant, exculpatory, and necessary to the accused's defense. Id.

Instantly, the defense contends that the alleged victim has a past history of soliciting men to have sex with her in exchange for drugs. Appellee's defense hinges upon the consent of the alleged victim. It is his position that the alleged victim propositioned him on the evening in question and that they then engaged in consensual intercourse in exchange for crack cocaine. The defendant believes that this version of events will not be believed by a jury unless the jury hears testimony that it was the alleged victim's custom or habit to act in a like manner. "It is his intention, through the introduction of the evidence described above, to place facts before the jury such that the jury can determine that [the victim] could be the type of individual that would exchange sex for drugs, thereby making his defense a credible defense." (Appellee's brief in response to Commonwealth's motion in limine at 3.)

The general nature of this proffer was buttressed at the in camera hearing, at which time appellee's counsel provided the court with two alleged occasions of prior similar conduct by the victim. The first instance involved certain unnamed witnesses who would supposedly testify that they witnessed the victim solicit drugs in a bar in exchange for sex, and that these same witnesses later observed the victim and the men from the bar having sex in a car. The second instance involved an unnamed restaurant owner who was said to have witnessed the victim and a restaurant employee engaged in oral sex in the kitchen of the restaurant. As to the second occasion, no mention was made that the sexual activity was being performed in exchange for drugs.

As previously stated, a specific proffer is but the threshold requirement for admissibility of a victim's past sexual conduct. Thereafter, a determination must be made that the evidence is relevant to exculpate the accused, more probative than prejudicial, and non-cumulative in nature.

In determining that the proffered evidence was admissible, Judge Caruso held that "the described conduct is not past sexual conduct because it only deals with solicitation and not a specific sexual act. Secondly, the evidence is relevant to attack the credibility of the alleged victim. The entire defense in the case is based upon who is to be believed concerning the events in question." (1925(a) decree at 2.)

This Court finds it necessary to first dispense with the belief that prior sexual solicitations are not covered by the Rape Shield Law because they are not, in and of themselves, specific sexual acts. We have held to the contrary on several occasions, and re-affirm the same today.

As long ago as 1985, this Court held that a victim's criminal record, consisting of three convictions for solicitation and prostitution, was inadmissible to prove "consent to having sexual intercourse with appellant on the occasion at hand." Commonwealth v. Dear, 342 Pa.Super. 191, 199, 492 A.2d 714, 718 (1985). Similarly to the facts of the instant appeal, the appellant in Dear presented a consent defense and sought to introduce the victim's sexual history in order to buttress his...