Commonwealth v. Claypool

*208 HUTCHINSON, Justice,

concurring.

This case presents two issues: (1) whether the appellee’s statements to his rape victim that he had been in jail before on a rape conviction were admissible as substantive evidence either under the standard exceptions to the rule barring evidence of prior crimes or for some other reason; and (2) if so, whether the relevance of such evidence must be balanced against its potentially prejudicial effect in determining its admissibility. I believe statements such as those at issue here are admissible if their relevance outweighs any improperly prejudicial impact and that, applying that balancing test to the facts of this case, the trial judge did not abuse his discretion in permitting appellee’s statements to be admitted in evidence. Therefore, I concur in the result reached by the majority.

The statements were offered by the Commonwealth to prove an element of the offense of rape, i.e., that intercourse was accomplished either by “forcible compulsion” or “threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” See 18 Pa.C.S. § 3121. The appellee, who admitted having sex with the alleged victim, attempted to negate these elements by asserting that the intercourse was consensual. The prosecution offered appellee’s statement to show how the victim’s will was overborne. See Commonwealth v. Williams, 294 Pa.Superior Ct. 93, 439 A.2d 765 (1982) (the force necessary to support convictions for rape and involuntary deviate sexual intercourse need only be such as to establish lack of consent and to induce the woman to submit without additional resistance).

This Court has never decided whether evidence of prior crimes, when offered to establish lack of consent, falls within any of the standard exceptions to the rule prohibiting such evidence or whether it is otherwise admissible. Two Superior Court cases, Commonwealth v. Kjersgaard, 276 Pa.Superior Ct. 368, 419 A.2d 502 (1980), and Commonwealth v. Seigrist, 253 Pa.Superior Ct. 411, 385 A.2d 405 (1978), have held that the defendant’s statements to his *209 victim regarding prior crimes are admissible to rebut the consent defense without specifying which exception, if any, the evidence falls under. In the instant case, Superior Court ruled that the evidence was relevant to prove intent, i.e., that the defendant intended to have sexual intercourse with the victim regardless of the victim’s consent. The court cited as authority Commonwealth v. Rough, 275 Pa.Superior Ct. 50, 418 A.2d 605 (1980). In that case, Superior Court upheld the trial court’s ruling permitting the victim to testify as to two prior sexual advances by her attacker stating that the prior sexual conduct of the defendant evidenced his intent and was offered to rebut defense arguments that the victim consented to his acts. 1

Pennsylvania also has a well-established rule which permits the introduction of evidence of similar sex crimes to show the defendant’s “state of mind.” United States v. Johnson, 462 F.2d 592 (3d Cir.1972); Commonwealth v. Kline, 361 Pa. 434 , 65 A.2d 348 (1949); Commonwealth v. Ransom, 169 Pa.Superior Ct. 306, 82 A.2d 547 (1951). See also 2 Wigmore, Evidence § 357 (3d ed.). “State of mind,” which is generally treated as an exception to the hearsay rule, when treated as an exception to the rule barring evidence of prior crimes, refers to the defendant’s mental plan or design to commit rape. 2 The Pennsylvania cases rely heavily on the following discussion in Wigmore:

Where the charge is assault with intent [to rape], former acts of the sort should be received without any limitation except as to time; though the Courts can hardly be said to have accepted this result fully ... a single previous act, even upon another woman, may, with other circumstances, give strong indication of a design *210 (not a disposition) to rape; and a previous act of the sort upon the same woman ought in itself usually be regarded as indicating such a design. Courts have shown altogether too much hesitation in receiving such evidence. Even when rigorously excluded from any bearing it may have upon Character, it may carry with it great significance as to a specific Design or plan of rape. 1 There is no reason why it should not be received when it does convey to the mind, according to the ordinary logical instincts, a clear indication of such a design. There is room for much more common sense than appears in the majority of the rulings.

See also Commonwealth v. Kline, supra.

3

I agree with the majority that the evidence at issue is relevant to prove force or threat of force and to negate consent. Additionally, I believe that the Court must clarify the basis for its admission. Chief Justice Nix implies in his concurring opinion that the rule barring evidence of prior crimes is never triggered in this case since such evidence was offered to prove an element of the crime of rape. Consequently, his view is that no new exception is needed. I am unpersuaded by this reasoning because evidence under the present exceptions is always offered a substantive evidence tending to prove the crime charged; otherwise, it is not relevant, i.e., it has no probative value. 4 Therefore, I *211 believe the appellee’s statements to his victim are admissible only if they fall within one of the traditional exceptions or if a new exception to the rule is recognized. Conceptually, this evidence does not appear to fall within any of the exceptions already recognized. Accordingly, I agree with the majority that our Court must recognize a new exception specially accommodating evidence of prior crimes when offered to prove force or lack of consent.

The question then becomes whether the probative value of evidence of prior crimes must be balanced against its potentially prejudicial impact on the factfinder. The cases establish that such a balancing process is required when the evidence is offered under one of the standard exceptions. See Commonwealth v. Ulatoski, 472 Pa. 53 , 371 A.2d 186 (1977); Commonwealth v. Kjersgaard, supra (evidence of a prior rape was admissible, additionally, to show the defendant’s modus operandi).

The majority holds that such evidence is per se admissible reasoning that the courts should not impede the Commonwealth’s ability to present all of its relevant evidence to the jury to prove each element of the crime charged, particularly as the prosecution can never be certain which, if any, of its evidence will be believed by the jury and regarded as proving a particular fact beyond a reasonable doubt. However, this view ignores the fact that, in certain cases, evidence of prior crimes is so prejudicial that it strips the defendant of his presumption of innocence. For this reason, the extent of the relevancy of this evidence in any given case must be balanced against its potentially prejudicial impact and the overall strength of the prosecution’s case against the defendant. Commonwealth v. Ulatoski, 472 Pa. 53 , 371 A.2d 186 (1977); McCormick, Evidence (3rd ed.) § 190 at 565.

Superior Court employed this balancing test in concluding that the trial judge abused his discretion in admitting the *212 statements regarding the prior rape because their prejudicial effect outweighed their probative value. However, I do not believe the record shows an abuse of that discretion, particularly in view of the trial judge’s excellent cautionary instruction to the jury explaining the limited purpose for which this “other-crimes” evidence was allowed. Appellee’s statements were properly admitted in evidence and, therefore, I concur in the result reached by the majority.

. Since rape does not require felonious intent, the reasoning in this case is tenuous.

. Some authorities contend that a party’s declarations about his state of mind are not properly hearsay at all, but, instead, constitute a verbal act introduced not for the truth, but to show how the declarant felt, an issue on which they are said to be directly relevant, apparently on the theory that a man’s words will normally portray his thoughts. That last statement, while the basis of all meaningful communication, is obviously not a universal truth.

In proving Intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it. In proving Design, the act is still undetermined, and the proof is of a working plan, operating towards the future with such force as to render probable both the act and the accompanying state of mind. The Intent is a mere appendage of the act; the Design is a force producing the act as a result. Ibid, Section 300.

. On reviewing the cases on point in other states, it is clear that the courts have not relied primarily on any particular exception to the general rule, but, instead, rely on all of them at one time or another. See Annot., 2 ALR 4th 330 (collecting cases). It is evident from these decisions that the courts often strain to find that evidence of a prior rape is admissible under one of the standard exceptions. Id.

. There are numerous circumstances in which highly probative evidence is nevertheless excluded on the basis of certain, countervailing reasons. This is so even where the evidence, if believed, proves an element of the crime in question. For example, a highly graphic, *211 color photograph showing the badly beaten body of a rape victim tends to establish force. However, the photos might nevertheless be ruled inadmissible because of their highly inflammatory nature.