# Commonwealth v. Johnson > Supreme Court of Pennsylvania · October 16, 1989 · 389 Pa. Super. 184 URL: https://www.frixlaw.com/law-library/cases/9516649 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Richard JOHNSON, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** October 16, 1989 - **Citations:** 389 Pa. Super. 184; 566 A.2d 1197; 1989 Pa. Super. LEXIS 3038 - **Precedential status:** Published - **Opinion:** Concurrence by Johnson - **Judges:** Cirillo, Brosky, Rowley, McEwen, Olszewski, Tamilia, Popovich, Johnson, Melinson - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516649 ## How later opinions describe it (automated extraction) - reaffirming the principle that evidence of the potential bias of the witness which, because of the logical nexus between the prior sexual activity and the testimony to be presented, would be exculpatory of a defendant, implicates the defendant's right of confrontation and must… ## Opinion text JOHNSON, Judge, concurring. I agree that the decision of the trial court, wherein the court refused to admit the hearsay testimony of the victim’s friend, must be affirmed. However, my reasons are different from the reasoning set forth by the Majority; hence, this Concurring Opinion. In my understanding, the Rape Shield Law, 18 Pa.C.S. § 3104, is only applicable when examining “the alleged victim’s past sexual conduct.” Therefore, unless the victim can be said to have engaged in conduct, herself (or himself), one cannot look to the Rape Shield Law in determining the admissibility of the particular evidence. In the case before us, I do not consider the alleged conduct of Harneen Crawley — “he brought her in the alley and touched her in a private part and hurt it” — to be within the realm of “the alleged victim’s past sexual conduct”. The testimony at issue only involves what Harneen Crawley is alleged to have done, that is to say, Harneen Crawley’s conduct, and in no way relates to any conduct of the alleged victim, Nicole. *197 The Rape Shield Law uses the same phrase, and only one phrase, throughout its body: the alleged victim’s past sexual conduct. It provides 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 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. (b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial____ 18 Pa.C.S. § 3104 (emphasis added). The Rape Shield Law focuses on the behavior — the conduct of the victim. In my view, where the behavior of the victim is not involved, the question of the admissibility of evidence falls outside the scope of the Rape Shield Law. In the case now before this court, inasmuch as it is the behavior of Harneen Crawley which is sought to be placed before the trier of fact rather than the behavior of the victim, Nicole, we cannot look to the Rape Shield Law— which deals only with the victim’s behavior — in deciding whether the testimony should have been admitted. Because I believe the scope of the Rape Shield Law is, by its very terms, somewhat narrow in scope, I believe our decisions in Commonwealth v. Coia, 342 Pa.Super. 358 , 492 A.2d 1159 (1985) and Commonwealth v. Troy, 381 Pa.Super. 326 , 553 A.2d 992 (1989) should be re-examined, neither of which dealt expressly with past behavior of the victim yet considered the applicability of the Rape Shield Law. Even though the trial court, and the Majority of this court, employ what I believe to be an erroneous standard of review, this court may nevertheless affirm the trial court, *198 applying simple principles of relevancy. While I agree with Appellant that prior non-consensual sexual conduct is simply beyond the reach of the Rape Shield Law, I reject Appellant’s contention that the statement concerning Harneen Crawley’s conduct is admissible on any grounds. Evidence is relevant if it logically or reasonably tends to prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it affords the basis for a logical or reasonable inference or presumption as to the existence of a material fact in issue. Commonwealth v. Haight, 332 Pa.Super. 269 , 481 A.2d 357 (1987), affirmed 514 Pa. 438 , 525 A.2d 1199 (1987). I do not see how the testimony of Tavona as to what the victim, Nicole, may have said one to two years before the incident wherein Richard Johnson is alleged to have raped her is relevant on any material fact in issue. First, appellant contends that the statement attributed to Nicole should have been admitted as a prior inconsistent statement. I agree with the Commonwealth that whether the victim had been assaulted some two years before the incident at issue is, at best, a collateral matter, upon which the victim may not be contradicted. Commonwealth v. Fisher, 447 Pa. 405 , 290 A.2d 262 (1972); Commonwealth v. Kesting, 274 Pa.Super. 79 , 417 A.2d 1262 (1979). Appellant also contends that Harneen, and not appellant, had assaulted Nicole and therefore, the testimony that Nicole had, at some unknown time, told Tavona that Harneen had, at some unknown earlier time, touched Nicole’s “private part” is relevant to prove appellant’s lack of guilt. In my view, the unreliable statement made at least two years before the trial would neither tend to disprove or tend to prove any material fact in issue regarding the assault upon Nicole which occurred on March 22, 1987. I also agree with the Commonwealth that the admission of the statement as substantive evidence would have been error, even after Commonwealth v. Brady, 510 Pa. 123 , 507 A.2d 66 (1986), since the prior out-of court statement by *199 Nicole would have had none of the normal indicia of reliability. Without any reference to the Rape Shield Law, I would find the preferred testimony of Tavona to be both irrelevant and inadmissible as falling outside any recognized exception to the hearsay rule. Because the behavior and conduct of the victim, Nicole, is not at issue in the evidence under review, I would decline to discuss the Rape Shield Law or, in the alternative, find it inapplicable on these facts. Like the Majority, I find no abuse of discretion by the very able trial judge, the Honorable Frederica MassiahJackson. The judgment of sentence should be affirmed. MELINSON, J., joins the concurring opinion by JOHNSON, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516649. Public record. Not legal advice.