*3 SPAETH, JOHNSON, Before BECK and JJ.
JOHNSON, Judge:
Appellant appeals rape,1 his convictions for involuntary deviate sexual intercourse2 and He conspiracy.3 was sen IV2 to tenced to 15 years imprisonment rape on convic tion, years to 15 on the involuntary deviate intercourse IV2 conviction, and to 5 to run years conspiracy, consecu tively rape to the sentence. 2, 1980,
The facts indicate that on victim, October for a to aged waiting was bus her to school transport when she encountered her boyfriend, former Maurice Bus- sey, who invited her to the home of Parnell also a Canaday, former boyfriend. Bussey and the victim watched tele- who, until the along vision arrival of Canaday, Bussey, with convinced victim engage game poker to of strip Upon losing with them. poker several hands of and while naked, nearly she was told to either remove the blanket she using was to cover herself or into go down the basement 1. Pa.C.S.A. 3121. § §
2. Id. 3123. § Id. 903. agreed go to reluctantly The boys. one of the victim with then asked the Bussey Bussey. to basement intercourse, she refused. engage which victim and three later, brought Appellant Canaday A short time basement, who, Canaday, along other males victim, while those not raped and sodomized repeatedly Another approval. shouted their immediately participating the victim. After anally raped arrived and eventually man hours, the-males the victim to permitted four approximately if told leave, her further harm she but threatened the assaults. one about later, Bussey Canaday,
Approximately two weeks to the victim’s people, several other went accompanied by victim, her mother and sister and threatened home reported the incident concerning the incident. victim police following day. co-defendants Rod jointly who was tried Appellant, Henderson, guilty April found on Hope and was ney Robert motions, post-verdict denial of following 19814 and This followed. appeal sentenced. (1) viz.: did appeal, raises three issues during refusing prospective jurors, court err in to ask
trial examination, prepared and sub questions dire five voir refusing court err Appellant,5 mitted did the trial Canaday juveniles. 4. Maurice and Parnell were tried questions proposed stated: 5. The *4 1) many boys young and men had sexual rela- Does the fact that your young girl during period a a four hour so affect
tions with sensibilities, you morality, not function ethics and values that could juror impartial case? as a fair and this 2) “gang bang” multiple concept of a or acts of various Does the girl suggest you types young to that the of sexual contact with a guilty participants be of some crime? must 3) girl young engages repeated acts with a is and sexual Because men, boys young you boys young group do feel such and a of and young? punished girl because the is so men should 4) testimony regarding young girl sucking boy’s you a a or If heard suggest you boy young penis, that the or young man’s would that to guilty of a deviate sexual act? man was Appellant to to respect
allow cross-examine the victim activity co-conspirators her of the with two sufficient to the verdict. support evidence Upon record, a of the parties review briefs of the and the Guarino, A. opinion Angelo Honorable we find that the trial court has adequately disposed of issues one and We therefore adopt portion three. that of the trial court’s for opinion purposes allocatur.
The remaining issue concerns the trial to court’s refusal permit Appellant counsel for to cross-examine the victim respect to her sexual activity Canaday, adjudicated separate who were in a as proceeding juveniles. Appellant
Counsel for submitted a written motion and proof6 court, offer of required to the trial Rape § statute, Shield 18 Pa.C.S.A. states: which § 3104. Evidence of victim’s sexual conduct (a) General specific rule.—Evidence of instances of the alleged conduct, victim’s past sexual evidence opinion conduct, victim’s alleged past sexual and reputa- tion alleged past evidence victim’s shall not prosecutions be admissible in under this chapter except evidence of the alleged past sexual con- duct with the defendant where consent of the alleged victim is at issue and such otherwise admissi- ble pursuant to the rules of evidence. 5) you testimony regarding boy If young attempting heard or man anus, put penis young girl’s suggest you his in a would that boy young guilty that or man was aof deviate sexual act? court, opinion, Appellant
6. The trial in its states that failed to file pleadings these with the court. support The certified docket entries However, subsequent argument this conclusion. court, to oral before this counsel copy pleadings submitted a of these panel and filed accompanying this them with this court. Counsel’s pleadings affidavit states that he had filed the with the trial court and provided prosecutor copy had with a at trial. argument concerning pleadings transcribed at trial these is un- were, fact, they clear as whether filed or submitted to the event, judicial trial court. In economy, in order to further we presume pleadings properly shall were filed. *5 (b) Evidentiary proceedings.—A pro- defendant who alleged of the victim’s past to offer evidence sexual poses (a) shall file pursuant conduct to subsection a written If, proof motion and offer of at the time of trial. at the trial, determines that the motion time of the court and faces, offer of are sufficient on their the court shall proof an in camera and shall make on hearing findings order the record as to the relevance and admissibility in proposed pursuant to the standards set forth (a). subsection proof alleged offer of that the victim had had
Appellant’s relationship a with both and Bussey Canaday of this relationship, and that because evidence of such trial, permitted Appellant’s should at prior activity in Bussey Canaday co-conspirators, and were albeit tried proceeding. separate juvenile trial, Appellant alleged
At counsel for further that the victim had volunteered this information at a preliminary hearing connection with one of the defendants instant case.7 trial court ruled that this evidence was reputation inadmissible show either the of the victim or consent, as Appellant.
Appellant alleges appeal the evidence of the past Bussey Canaday and prohibited Appellant’s should not have been at trial because and status as Bussey Canaday’s juveniles sepa- tried proceedings Appellant rate from and his co-defendants. According Appellant, such a prohibition right violates his equal protection by imposing under Constitution an unreasonable classification between criminal actors tried adult court and those tried as juveniles. note that
Initially, Appellant’s proffer we of evi concerning prior dence sexual conduct between the victim Canaday was barred statute. See Majorana, Pa.Super. 215-16 n. specified preliminary hearing has not which contains this information, nor does the record in the instant case contain such information. *6 Commonwealth v.
7, 529, (1982). Also, 445 A.2d 531 n. 7 Duncan, 395, 398, 257, 259 Pa.Super. 279 421 A.2d court held that of the past this evidence sexual conduct not admissible for any purpose. persons victim with third is has to little Such evidence been determined be of rele to of vance the issue consent the and a between victim has personally engaged defendant who not in prior sexual conduct with the victim. As stated in Quartman, 349, 353-54, 994, 312 Pa.Super. 458 996-7 A.2d (1983): rules,
As with other evidentiary state’s interest against must balanced fundamental right Here, to fair accused a trial. the state’s interest shielding complainant from undue harassment a rape prosecution must against appellant’s be balanced to confront right his accuser by presenting evidence of complainant’s prior sexual Appellant’s conduct. sole purpose introducing evidence alleged victim’s prior sexual relations with others to an create infer- ence for the jury connecting the con- purported victim’s sent earlier occasions with his consent to relations “A appellant. rape previous victim’s other persons very has little value about probative consent to intercourse with a at particular person a [his] Green, State v. time.” particular 260 S.E.2d 261 (W.Va., 1979). Evidence a rape prior victim’s relations of. other persons generally only slightly relevant the issue of consent with accused and extraor- absent dinary circumstances fails to shift balance between the state’s interest in shielding rape victim and the right defendant’s to confrontation in favor of the defend- ant.
(citations omitted) (brackets in original). It has also held that the limited been exclusion of the past sexual conduct with than parties other no prove defendant consent more deprives defendant of a fair trial than do the rules evidence barring hearsay,
365 People v. privileged communications. opinion Cal.Rptr. Blackburn, Cal.App.3d by 18 Pa.C. hold that was barred therefore We § con- introducing evidence of sexual 3104 from S.A. Bussey. Canaday the victim and duct between concerns whether this determi- The alternate issue raised equal protection under Appellant’s right nation violates similarly that he is Appellant argues the Constitution. gang rape whose to other defendants accused situated contact have had vic- co-conspirators violation, according Appellant, equal protection tim. The *7 In co-conspirators. to the the regard age occurs with class, tried co-conspirator may jointly an adult be first The then be permitted, defendant would the defendant. the victim Appellant, regard- to cross-examine according the victim and prior of sexual conduct between ing evidence the co-conspirator properly requests if the co-conspirator class, juve- such In the second introduction of evidence. must tried from the de- co-conspirator separately nile be of the evi- fendant, denying defendant the benefit thereby co-conspirator of sexual conduct between dence and victim. that uni concept equal protection requires of situated given similarly parties.
form treatment be
Com
Kramer, 474 Pa.
Therefore, there
no
of
difference
treatment
defend-
respect
co-conspirators
ants with
to their
who have had
victim,
prior sexual
contact
as those defendants
guaranteed
cannot
co-conspirators’
benefit
their
of prior
victim,
regardless
age
We
co-conspirators.
therefore hold that
equal protection
no
violation occurred
the instant case.
*8
Finally, Appellant alleges that the
holding
Common-
Green,
322,
(1979)
wealth v.
487 Pa.
Judgment sentence is affirmed.
SPAETH, J., files a concurring statement.
SPAETH, Judge, concurring: I equal should resolve appellant’s protection argument somewhat than does the differently majority.
I acknowledge appellant that since was tried separately adult, as an he disadvantage compared was at a with his co-conspirators, he could not cross-examine the victim as to her the co-conspirators. contact with Never theless, the classification is consistent equal protec with the clause, tion for it rationally related to the state’s legiti mate interest administering the criminal law a manner responsive to the needs of the I special young.1 therefore agree with the majority’s conclusion that appellant’s equal argument lacks merit. protection At. 365-66.
Eric V.
Superior Court of Pennsylvania. 23,
Argued Feb. 1983. Sept.
Filed
1983.
Appeal
Petition for Allowance of
Denied Feb.
1984.
Perhaps
may
age
there
be some doubt as to whether
is a constitu
226, 260,
tionally protected
Wyo.,
class. See E.E.O.C. v.
460 U.S.
1054, 1073,
J.,
(BURGER,
dissenting).
S.Ct.