250 A.3d 1209
Pa.2021Background:
- Over ~10 months beginning May 2011, Eric Rogers physically and sexually assaulted five women (two minors) and stole property; he was charged with numerous sexual and related offenses.
- Rogers sought before trial to cross-examine two adult victims (A.P. and M.H.) about prior prostitution convictions in the area to support his defense that the encounters were consensual prostitution transactions.
- The trial court (Judge Anders) excluded that evidence under Pennsylvania’s Rape Shield statute, and Rogers proceeded to a waiver trial, testifying that all encounters were consensual/for hire.
- The court convicted Rogers of multiple counts (rape, aggravated assault, robbery, etc.) and sentenced him to an aggregate 55–170 years; post-sentence motion denied.
- The Superior Court affirmed the exclusion, citing Dear and Jones; this Court granted review and affirmed exclusion under the Rape Shield statute but vacated the Superior Court’s waiver ruling on Rogers’s weight-of-the-evidence claim and remanded for merits review.
Issues:
| Issue | Commonwealth's Argument | Rogers's Argument | Held |
|---|---|---|---|
| Whether victims’ prostitution convictions with third parties were admissible under Pa. Rape Shield §3104 to prove consent | §3104 bars past sexual conduct with third parties; evidence irrelevant and unduly prejudicial | Prostitution history is directly probative of consent (financially-induced consent) and necessary for defense | Exclusion affirmed: convictions were statutorily barred as propensity evidence and not sufficiently probative of consent |
| Whether §3104’s application violated Rogers’s confrontation/right to present defense | Shield law balanced against confrontation rights; constitutional rights do not override where evidence is only propensity | Admission required by Sixth Amendment and Pa. Const. art. I §9 to mount effective defense and cross-examine witnesses | Constitutional claim rejected: confrontation right did not compel admission because the proffered proofs were propensity, not the narrow types of exculpatory evidence the Court has allowed |
| Scope of “past sexual conduct” in §3104 (does it include post-offense conduct) | Broad statutory reading supports protecting complainants’ sexual history up to trial | Ambiguity argued; narrower reading urged | Court construed “past” to mean prior to trial (not only prior to offense), so post-offense prostitution falls within §3104 and is barred |
| Whether Rogers waived his weight-of-the-evidence claim by failing to adequately develop it in Rule 1925(b) concise statement | Superior Court: concise statement too vague so claim waived | Rogers: post-sentence motion contained specifics; trial court addressed merits; Laboy controls—issue preserved | Superior Court erred: claim not waived; vacated that portion and remanded for merits consideration |
Key Cases Cited
- Commonwealth v. Majorana, 470 A.2d 80 (Pa. 1983) (allows otherwise-excluded sexual-history evidence when it explains a forensic finding and is critical to defendant’s version of events)
- Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992) (Rape Shield cannot be applied to bar relevant, potentially exculpatory evidence essential to defense)
- Commonwealth v. Dear, 492 A.2d 714 (Pa. Super. 1985) (prostitution convictions involving third persons are generally inadmissible to prove consent)
- Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003) (‘‘past sexual conduct’’ construed to include all conduct prior to trial; third-party prostitution convictions not probative of consent)
- Davis v. Alaska, 415 U.S. 308 (U.S. 1974) (Confrontation Clause protects the right to reasonable cross-examination to show bias)
- Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (trial courts may impose reasonable limits on cross-examination but must balance confrontation rights and other concerns)
- Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985) (permitted sexual-history cross-examination where it tended to show motive to fabricate/bias)
- Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007) (trial court opinion addressing an issue can defeat a waiver finding where the court plainly apprehended and ruled on the issue)