“Here, the victim testified that the instant sexual assault arose out of numerous previous sexual assaults by appellant which had been occurring for the past seven years. These prior sexual assaults occurred under similar circumstances and were clearly of the same type and nature as the instant assault. Accordingly, we agree with the trial court that the previous assaults by appellant upon the victim were part of the history of the instant assault and, therefore, the trial court’s admission of evidence of these assaults was proper.”
How later courts described this case
- “Here, the victim testified that the instant sexual assault arose out of numerous previous sexual assaults by appellant which had been occurring for the past seven years. These prior sexual assaults occurred under similar circumstances and were clearly of the same type and nature as the instant assault. Accordingly, we agree with the trial court that the previous assaults by appellant upon the victim were part of the history of the instant assault and, therefore, the trial court’s admission of evidence of these assaults was proper.”
Written by the judges who cited it.
The opinion
POPOVICH, Judge,
dissenting:
I must respectfully dissent from the majority’s determination that the lower court properly excluded evidence of the pubic hairs which were found in the victim’s underwear and which did not match those of either appellant or the victim on the basis of the Rape Shield Law, 18 Pa.C.S.A. § 3104. Rather, I would permit the appellant to offer the pubic hairs into evidence.
In Commonwealth v. Wall, 413 Pa.Super. 599 , 606 A.2d 449 (1992), this court set forth the procedure to be employed when a defendant seeks to introduce evidence which facially violates the Rape Shield Law, as follows:
The process begins with the defendant submitting a specific proffer to the court of exactly what evidence he or she seeks to admit and precisely why it is relevant to the defense. This procedure forces the defendant to frame the precise issues and interests involved, and prevents him or her from embarking upon “fishing expedition style intrusions on Rape Shield Law protections.” Where the proffer is but vague and conjectural, evidence of the victim’s past sexual conduct will be excluded and no further inquiry need be entertained.
Where the proffer is sufficiently specific, the court must then undertake a three part analysis of the substance of the proffer. At the trial level, the court must conduct an in camera hearing at which they must determine: 1) whether the proffered evidence is relevant to the defense at trial; 2) whether the proffered evidence is cumulative of evidence otherwise admissible at trial; and 3) whether the proffered evidence is more probative than prejudicial. On appeal, such evidentiary rulings must be offered due deference and *503 overturned only where there has been an abuse of discretion. Where, however, the proffered evidence excluded by the Rape Shield Law is relevant, non-cumulative, and more probative of the defense than prejudicial [to the victim], it must be admitted.
Wall, 606 A.2d at 457 (Citations omitted).
Instantly, I agree with the majority that appellant has made a specific proffer regarding the pubic hairs and that evidence of the pubic hairs is relevant to the defense and non-cumulative. However, I disagree with the majority’s conclusion that the probative value of the pubic hairs is outweighed by their prejudicial effect upon the victim.
At trial, appellant admitted having a sexual encounter with the victim in the kitchen on the night in question during which he ejaculated. However, he denied having intercourse with the victim. Although prior to his arrest appellant told the police that he engaged in intercourse with the victim in the kitchen, appellant testified that the statement was incorrect and the product of police trickery. It should be noted that even in appellant’s statement to the police, he denied having ejaculated inside the victim’s vagina. Given the fact that the authorities were unable to match the semen samples found in the victim’s vagina and on her panties to appellant, the pubic hairs were crucial to appellant’s defense. 1
Certainly, the presence of the foreign pubic hairs in the victim’s underwear proximate in time to the alleged rape combined with the prosecution’s inability to match the semen samples to appellant and the dearth of evidence of trauma to the victim’s person could create reasonable doubt in the mind of the jurors that appellant raped the victim. Further, I do no think that evidence of the pubic hairs were unduly prejudicial to the victim, since other evidence of her prior sexual conduct was admitted into evidence without objection, i.e., appellant *504 testified that the victim was in the kitchen fixing a bottle for her daughter when the original incident took place. N.T., 5/20/91, p. 227.
Accordingly, I would find that the lower court abused its discretion in refusing admission of the pubic hairs, and I would remand this case for a new trial.
. I note that the police did not even attempt to examine the victim’s panties for the presence of semen and match any sample found to that of appellant until June 6, 1991, almost three months after the incident. Further, there is no evidence that the police ever attempted to match the sperm samples taken from the victim’s vagina to appellant.