Commonwealth v. Johnson

POPOVICH, Judge,

dissenting:

I respectfully dissent from the opinion of the majority because I am convinced that the Rape Shield Law, 18 Pa.C.S.A. § 3104, does not serve as a bar to evidence of prior sexual assaults against a victim.

The Rape Shield Law, 18 Pa.C.S.A. § 3104(a), specifically states: “Evidence of specific instances 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.” (Emphasis added).

I, unlike the majority, do not believe that a prior sexual assault qualifies as “past sexual conduct.” Inherent in “conduct” is a volitional component which is obviously absent from an “assault.” Black’s Law Dictionary, 268 (5th ed., 1979), defines “conduct” as “Personal behavior; deportment; mode of action; any positive or negative act.” It further notes the Model Penal Code definition of “conduct”: “An action or omission and its accompanying state *200 of mind or where relevant, a series of acts and omissions. Model Penal Code, § 1.13.”

As the majority states, “the Shield Law was enacted primarily to prevent establishment of an unwarranted nexus between the victim’s reputation for chastity and her veracity.” Maj. Op. at 1198. The fact that a victim was sexually assaulted previously does not, in any manner, reflect upon her “chastity or veracity.” Accordingly, I do not believe that the rule applies when a defendant seeks to introduce evidence of a prior sexual assault upon the alleged victim. Compare Miller v. State, — Nev. —, 779 P.2d 87 (1989) (prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute “previous sexual conduct” for rape shield purposes). See also Clinebell v. Com., 235 Va. 319 , 368 S.E.2d 263, 264 (1988).

Rather than apply the Rape Shield Law, I am convinced that the question of whether evidence of a past sexual assault of an alleged victim is admissible is controlled by the rules of evidence. Simply put, the evidence proffered by the defendant must be relevant. Evidence is relevant if it logically tends to prove or disprove a material fact at issue, or if it tends to make such a fact more or less probable, or if it affords the basis for a 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).

Instantly, I believe the evidence offered by the defendant is relevant to this inquiry. Appellant’s sole defense was that Harneen Crawley committed the sexual assault. Harneen Crawley was known to have “bullied” the victim in the past. And Tavona Johnson testified, in camera, that the victim told her two years prior that Harneen “brought her in the alley and touched her in a private part and it hurt.” This evidence certainly tends to support appellant’s defense. I am convinced that whether Harneen forced Nichole to accuse appellant rather than himself is a ques *201 tion for the jury to determine, one which affects the substantive evidence presented and the credibility of Harneen.

Accordingly, I find that the trial court erred in excluding the evidence in question, and I would grant a new trial.