K.S.F. appeals from the order entered in the Court of Common Pleas of Montgomery County reinstating his sentence following this Court’s remand for an in camera hearing to determine admissibility of a Fa-cebook post by the complainant, KS.F.’s minor stepdaughter (“Stepdaughter”). After сareful review, we reverse and remand for a new trial.
In August 2011, a jury convicted K.S.F. of the following sexual crimes against Stepdaughter: four counts of involuntary deviate sexual intercourse with a child;
[E]vidence that Stepdaughter posted she was a “virgin,” fell within the ambit of the Rape Shield Law and that a teenage girl posting that she was a “virgin,” despite being sexually abused by her Stepfather[,] was a self-characterization that did not have significant enough probative value as to the credibility of her claimed abuse by [K.S.F.] to overcome the Rape Shield Law barrier.
Trial Court Opinion on Remand, 10/28/13, at 5. See also Trial Court Opinion, 7/13/12, at 8-13; 18 Pa.C.S. § 3104.
Following his conviction, the court determined K.S.F. to be a sexually violent predator, and sentenced him to an aggregate term of 12 to 24 years’ incarceration. On direct appeal, this Court vacated and remanded, instructing the trial court to hold an in camera hearing and apply the three-prong balancing test outlinеd in Commonwealth v. Black,
The trial court held an in camera Black hearing on June 26, 2013. Stepdaughter testified that when she wrote on Facebook that she had never had sex before, she meant she had never had consensual sex. The trial court subsequently reinstated the judgment of sentence, and K.S.F. filed this appeal.
K.S.F. raises four issues for our review:
1. Whether the statement made by Stepdaughter that she “had never had sex in her life” posted on Face-book prior to trial but subsequent to allegedly being forced to have sex with K.S.F. should have been admissible for impeachment purposes?
2. Whether the trial court erred in determining that Stepdaughter’s privacy rights outweighed KS.F.’s Sixth*483 Amendment right to present a defense, especially in light of the fact that Stepdaughter posted a statеment on Facebook for a large number of people to see?
3. Whether the trial court invaded the province of the jury by determining the meaning of the Facebook post, failed to consider the entire context of the statement, and erred in ruling that the statement was unfairly prejudicial?
4. Whether the Commonwealth violated Brady v. Maryland,373 U.S. 83 ,83 S.Ct. 1194 ,10 L.Ed.2d 215 (1984),7 by not disclosing the Face-book note to K.S.F. prior to trial?
The first three claims all speak to the issue of whether the trial court abused its discretion in determining the admissibility of the Facebook posting at the Black heаring. We will therefore proceed with a discussion of the trial court’s application of the three-factor Black test. As our disposition of this case has the same effect as a successful Brady challenge, we need not address KS.F.’s claim under Brady.
Our standard of review for admission of evidence of a victim’s prior sexual conduct is as follows:
A trial court’s ruling on the admissibility of evidence of the sexual history of a sexual abuse complainant will be reversed only where there has been a clear abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
Commonwealth v. Holder,
The Rape Shield Law provides as follows:
§ 3104. Evidence of victim’s sexual conduct
(a) Generаl rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall nоt 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 еvidence.
18 Pa.C.S. § 3104(a). Although the literal language of the Rape Shield Law would appear to bar a wide range of evidence, courts have interpreted the statute to yield to certain constitutional considerations implicating the rights of the accused. See, e.g., Commonwealth v. Riley,
Evidence that tends to impeach a witness’ credibility is not necessarily inad
Here, it is not disputed that the relevancy prong from Black was satisfied. See Trial Court Opinion on Remand, 10/28/13, at 7-8. However, the trial court erred as a matter of law in weighing the probative value of the evidence against the prejudice of its admission.
In Commonwealth v. Spiewak,
In Commonwealth v. Johnson,
Further, the trial court’s finding that admission of Stepdaughter’s Facebook posting would prejudice her is not consistent with the express purpose of the Rape Shield Law, nor with the Black test.
In addition, the trial court erred in determining that the Facebook posting meant that Stepdaughter had not had consensual sex only. “The purpose of [an in camera ] hearing required by the Rape Shield Law is to enable a trial court to determine whether tendered defense evidence of the victim’s prior sexual activity is relevant and admissible.” Commonwealth v. Baronner,
Stepdaughter’s statement that she was a virgin could be interpreted to mean that' shе had never had consensual sex. This is, in fact, the way Stepdaughter explained the Facebook posting at the Black hearing. N.T. Hearing, 6/26/13, at 12. However, the Facebook posting could also be interpreted to mean that she had never had any sex, including with K.S.F. Whether Stepdaughter’s narrative was to be believed was a credibility determination that should properly have been put before a jury. See Baronner,
The third prong of the Black test requires a consideration of alternative means to impeach the victim’s credibility. Our jurisprudence is scant on instances that have explored this factor in depth, however, several cases are instructive. In Commonwealth v. Weber,
Here, the trial court determined that K.S.F. had adequate opportunity to impeach Stеpdaughter’s credibility without the Facebook posting. There were other pieces of evidence available to impeach Stepdaughter’s credibility. Trial Court
The Black test is a balancing test. It is undisputed that the first prong has been satisfied, and we find that the trial court has abused its discretion in determining the second and third prongs. The balance undeniably weighs in favor of admission of the Facebook posting.
Having concluded the trial court abused its discretion in its application of the test, we reverse the judgment of sentence and remand for a new trial.
Reversed and remanded for new trial. Jurisdiction relinquished.
Notes
. 18 Pa.C,S. § 3123(b).
. 18 Pa.C.S.§ 3123(a)(7).
. 18 Pa.C.S. § 3122.1.
. 18 Pa.C.S. § 3126(a)(7).
. 18 Pa.C.S. § 3126(a)(8).
. 18 p,c.S. § 6301(a)(1).
. In Brady, the United States Suprеme Court held that "the suppression by the prosecution of evidence favorable to an accused .upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” Brady,
. K.S.F. devotes significant space in his brief on the issue of whether Stepdaughter would be prejudiced by an invasion of her privacy rights were the Facebook posting admitted. We fail to see the relevance of her general right to privacy in this context. The Rape Shield Law was passed to prevent a specific class of attacks against the character of victims in rape prosecutions. It is not a bar against the admission of relevant evidence, the disclosure of which invades a victim’s privacy, provided it does not involve "past sexual conduct."