*4 OLSZEWSKI, JOHNSON, Before KELLY and JJ. KELLY, Judge:
Appellant raises ten separate challenges judgment of imposed upon sentence convictions from arising his knife point year girl. Significant sexual assault a 12 old issues regarding are raised privacy pertaining claims to medical trials, in subpoenaed records criminal gonor- admissibility rhea results exception under business records to the rule, hearsay proper application and of the Rape Shield raised, statute. We find no merit of the any claims affirm of sentence. also judgment deny We allowance of appeal discretionary aspects of sentence. History
Facts Procedural Appellant arrested, tried, was and convicted of rape, intercourse, involuntary sexual deviate and various related arising offenses from his knife point sexual assault of the then old female year July victim on 1987. As the assault, result gonorrhea. child victim contracted denied, Post-verdict motions were sen- appellant was eight years imprisonment. tenced to a term of A twenty motion to modify appeal sentence denied. This timely followed.
On appeal appellant allegations raises ten of error. We find no merit the contentions and will dispose discuss and of each seriatim.
I. Trial Questioning Court First, appellant argues that the evidence was insuffi cient to sustain rape conviction the Commonwealth failed to the 12 year elicit evidence that old victim was not wife. The appellant’s severally contention is flawed. *5 282 circumstantial evidence to more than sufficient
There was a reasonable doubt that the beyond an inference sustain Succinctly, victim has wife. appellant’s was not victim 12 old at the time of the only years that was testified she attack, to she attack, appellant prior she did know attack, she was only to appellant saw never her as of a attacker the result appellant able identify to (N.T. 3/8/88 at supplied by police. photographic array she was not 32, 42-43). There could be no doubt that 26-27, Simpson, v. 316 wife. See Commonwealth appellant’s Common- (1983); 122, 821, 462 A.2d 824 115, Pa.Super. 359, 368, 1088, 288 431 A.2d Schilling, v. Pa.Super. wealth 1092
Moreover,
point
plainly
this
was
proof
defect
any
directly whether
trial court asked the victim
cured when the
she
she
responded
wife and
that
was
appellant's
she was
(N.T.
53).
at
trial court’s abundant cau
not.
3/8/88
Common
See
commendable.
respect
tion in that
557,
(Pa.1990);
Common
wealth v. Tharp,
575 A.2d
558-59
1214,
Roldan,
366, 368,
1215
572 A.2d
wealth v.
524 Pa.
290,
Rasheed,
v.
Pa.Super.
392
Commonwealth
(1990);
J.,
(1990)
concurring
4
(Kelly,
1239-40
n.
572 A.2d
&
King,
Commonwealth
Pa.Super.
dissenting);
553, 557-58,
(1988);
Johnson,
123,139-44,
1251-52
512 A.2d
is without merit.
(1986). The first contention
Prison Medical Records
Privacy of
II.
Next,
his
that
constitutional
appellant contends
appellant’s
were violated when
rights
privacy
statutory
to a search
pursuant
records were seized
prison medical
magistrate upon
and detached
warrant issued
neutral
of rape
that evidence of the crime
cause to believe
probable
confirm that
discovered, the records would
would be
We
had
as had the victim’s assailant.
appellant
gonorrhea,
merit in the contention.
find no
under the
right
privacy
his
claims that
Appellant
(35
P.S.
Law
Prevention and Control
Disease
521.15),
(28
Rights
115.27),
Patient’s Bill of
Pa.Code
§
§
(28
5.53),
the Clinical Laboratories Act
Pa.Code
and the
§
*6
Constitution was violated. None of the statutory restric-
by
prison
tions
their terms
medical
apply
records. More
importantly, this Court has
held that
previously
even statu-
torily privileged confidential medical records must be dis-
closed to the
in
Commonwealth
sexual abuse cases when
presence
or absence
venereal disease is relevant to an
Moore,
issue at trial. Commonwealth v.
378 Pa.Super.
(1988). Moreover,
Here, the Commonwealth obtained a search warrant for evidence, rather following petition than procedure in the petition procedure described Moore. While may be preferable, it is not mandated as or yet by by statute procedural rule. Though process lack subpoena may safeguards provided petition procedure, none- we it adequate theless find authority upon prison which the may rely disclosing appellant’s medical records. even if Finally, the procedures inadequate, followed were exclusion would not an appropriate remedy. be There was no statutory exclusionary rule in any enacted of the stat- cited, utes and there has been no pattern willful viola- tions to application warrant of a judicially created exclusion- ary rule.
Hence, find we no merit the second contention.
III. Business Exception/Medical Records Tests
Appellant contends that it error was to admit evi positive dence of his test result for gonorrhea under the business records exception to the hearsay rule. We cannot agree.
This previously Court has generally held that medical opinions and diagnoses are not admissible as business records, but instead live required testimony by qualified medical expert. See e.g., Commonwealth v. Hemingway, 369 Pa.Super. (1987). However, general rule does not extend to records of the results
284 in the presence spermatozoa for
standard tests in a defendant’s blood. vagina victim’s or alcohol See Karch, A.2d Pa.Super. v. Seville, (1986); Commonwealth tests to gonorrhea We find standard be spermatozoa to standard and alcohol sufficiently similar outside precedent, to fall the latter tests within rule. general further that even if business records of argues
Appellant
generally, they
admissible
should
such standard tests were
here,
an outside
performed by
not
the test
be
because
Appel-
than
on-site.
testing
by prison employee
lab rather
testing
bystander
to a mere
analogize
lant seeks
lab
part
become
an
properly
whose information could
Kasnot, 371
Pa.
business record.
Hass
admissible
Cf
*7
(1952).
580,
The independent lab was an contrac- bystander, testing mere the information included in the busi- providing tor plainly course the business relation- ordinary record in the of ness may modern records Much information in business be ship. or contractors or purchasers, principal supplied by suppliers in the inter- people acting or other business sub-contractors of modern busi- oriented context information dependent, record, rather than It is purpose ness. the business source, renders such of the which employee status Hence, no see rea- reliable. we hearsay specially evidence blood test results to treat an off-site venereal disease son Binder, Hearsay results. differently than on-site See (1983 Handbook, supp.) (collecting at 150-52 & § records). generated business involving non-employee cases admissibility to the Hence, appellant’s challenge we reject gonorrhea of the test records evidence of the business results. Evidence Contemporaneous Misconduct
IV. in court erred fail that the trial Appellant contends officer, while police to declare a mistrial when ing appellant’s recounting portions admissible otherwise police, appellant using statement to noted had admitted night question. cocaine on the find no merit in We contention. acts,
Evidence of contemporaneous bad such the use of cocaine, transaction, is admissible if it was of the part same or adds to completes understanding of the events question, and is not unduly prejudicial. See Common- Billa, 521 Pa. wealth The well-known stimulating disinhibiting effects of cocaine provide a more than sufficient basis conclude that the contemporaneous criminal conduct was admissible under in a gestae exception involving charges res trial that the committed year defendant sexual abuse on a girl twelve old MacDonald, al, high while on cocaine. See et Heavy Co- Behavior, Use 18 Drug caine and Sexual J. Issues (1988) 437-55 (reporting stimulating and ef- disinhibiting fects; but, detailing various forms sexual dysfunction abuse); Gold, (3rd caused cocaine 800-Cocaine, at 18-19 Ed.1986) (noting disinhibiting stimulating effects, potential Stone, dysfunction); Fromme, sexual & Ka- gan, Solution, (1984) Cocaine: Seduction and at 20-21 (same). Given potential cocaine use to contribute appellant’s aggression against violent sexual the child vic- tim, appellant’s cocaine use was relevant and admissible.
Regardless, caution, in an abundance of the trial court sustained an objection remark, to the passing, unsolicited and a prompt given. curative instruction adequacy decide, that course of conduct was for the trial court to *8 and we find no abuse of discretion.
Gibson, 518, 546, 389 Pa.Super.
V.
Indirect
to Prior Misconduct
References
Appellant
separate allegations
raises two
of prejudicial
suggestions of prior
challenges
misconduct. He
the failure
give
to
a
following
curative instruction
two unsolicited
(who
by
remarks
the nurse
presented
gonorrhea
witness
the
results)
test
that she worked
He
prison.
at a
also chal-
the
lenges
adequacy
given
of a curative instruction
after
unsolicited,
the police
passing
officer’s
remark that a photo
crime
of
comprised
to
after the
was
array shown
a witness
find
arrested
We
no
previously.
of
photographs
persons
or taken
individually
together.
the contentions
merit
in
arrest
appellant
aware that
had been
jury
was
ed,
prison
and
the
that a
nurse had mentioned that
so
fact
-arrest blood
post
had been incarcerated when
appellant
imme
that he had not
merely disclosed
performed
test was
imply prior
on
That fact did not
diately
released
bail.
been
relative
criminal conduct. As the remark was
or unrelated
innocuous,
no
why
we see
reason
trial court should
ly
to
attention
it.
have drawn undue
array
an
photographs
The disclosure that
used
Nonetheless, we have no
mugshots
improper.
were
instruc
efficacy
simple
doubt the
curative
reason to
Gib
given
the trial
See Commonwealth v.
by
tion
court.
son,
VI. in refusing court erred contends that the trial Appellant victim on issue him to cross-examine the permit to an alternate experience suggest in an effort other sexual merit in the contention. find no gonorrhea. source of We complainant’s law, rape female At common evidence was deemed morality chastity and reputation general result of this on issue of consent. The admissible was notorious abuse victim witnesses common law rule put the vic- essentially defense counsel who aggressive by abuses, the response unjustifiable on to such tim trial. known enacted statutes and the states government federal laws intended Rape Rape laws. Shield were Shield limiting by the common rule fostered law end abuses of defense counsel embarrassing inquires harassing com- of sexual assault prior sexual conduct into irrelevant Williams, Legislation plainants. See Reform Pennsylvania, The Law Evidentiary Concerns: White, Evi- (1985); generally 955-75 see U.Pitt.L.Rev. Constitutional dentiary Privileges Defendant’s
287 Evidence, 80 Right to Introduce 377, J.Crim.L. & Crim. Kello, Rape Complain Shield Paradox: (1989); 377-426 Oscillating Protection Amidst Tends State Judi- Of Interpretation, 78 cial 644, J.Crim.L. & Crim. 644-98 Gavin, Rape Victims in the (1987); Shielding State and Decade, A Proposal Federal Courts: the Second for 763, Haxton, (1986); Minn.L.Rev. 763-916 Rape Shield Despite Statutes: Constitutional Unconstitutional Exclu- Evidence, 1219, sions (1985); Wisc.L.Rev. 1219-72 of Statutes, Tall, Evidence—Rape Shield 19 Gonzanga L.Rev. 437, Ordover, (1984); Admissibility Patterns 437-51 of of Similar Sexual Conduct: Unlamented Death of Character Chastity, 90, Cornell L.Rev. 90-120 for
Though long-overdue, laws, laudable and Rape Shield if construed, rigidly impermissibly could encroach upon a de- right fendant’s to confront and cross-examine witnesses which is secured by Pennsylvania the United States and Constitutions. The manner which those counterveiling interests are to has subject be balanced been the of consid- litigation erable in this Commonwealth and other jurisdic- tions. See generally Annotation, Constitutionality of “Rape Restricting Shield” Statute Use Evidence of Experiences, Victim’s Sexual 283, (1980 ALR 4th 283-305 1989 Supp.); Annotation, & Admissibility in Incest Prose- cution Evidence Alleged Victim’s Prior Sexual Acts Accused, With Persons Other Than 97 ALR 3d 967-80 (1980 Annotation, & 1989 Supp.); Modern Status Admis- sibility, Prosecution, In Rape Forcible Complainant’s Of Reputation General Unchastity, 95 ALR 3d (1979 Annotation, 1181-97 Modern Status & 1989 Supp.); In Admissibility, Prosecution, Forcible Rape Com- Of plainant’s Acts, Prior Sexual (1979 94 ALR 3d 257-86 & 1989 Supp.). Commonwealth v. Majorana, 503 Pa. 470 A.2d Supreme our Pennsylvania Court construed the
Shield law to intend to exclude
irrelevant
only
and abusive
inquiries,
inquiries regarding
exclude
relevant
*10
470
allegation.
to
the
disprove
which would tend
evidence
had made a
In
the defendant
Majorana,
at 84.
A.2d
through
testimony
to
of an identi-
offer
specific
prove
detected in the
sperm
that the semen and
person
fied third
had
offered as
to corrob-
body, which
been
evidence
victim’s
come from
testimony,
actually
had
the victim’s
orate
Taken law to a defendant’s Rape that the Shield will bow onstrate specific proffer when a right to confront and cross-examine is to elicit intended proposed inquiry that the demonstrates prejudicial, more than evidence, probative is relevant which available is cumulative other evidence and which Ma- law Rape protections. Shield encroaching upon without Black, thus, involve limited jorana, Lyons, exceptions the broad law. Rape exclusion Shield significance required proof The offer is demon- in our decision in strated Commonwealth v. Troy, A.2d 992 Troy, this Court proffer held the defense counsel’s to the relevance of evidence otherwise the Rape inadmissible under Shield was too vague conjectural law to warrant even a Black, remand for inquiry further under A.2d at 996- an adequate proffer is, thus, 97. absence of specific to challenges protections. fatal Shield It is true that in Jorgenson, Commonwealth v. Pa. (1986) Nix, C.J., (per Zappala, *11 McDermott, JJ., Flaherty, J., join; Papadakos, dissents; Hutchinson, JJ., dissent), Larsen and a join the bare majori- of Supreme our Court ty remanded for an evidentiary hearing despite a of an alternate vague proffer explanation physical in evidence offered of sexual support abuse terms, charges. however, By its majority opinion the in Jorgenson was of extremely prospective limited prece- dential value. provide specific The failure to proffer a was deemed excusable because had yet Majorana been decided, and the because trial express court’s reliance upon Duncan, Commonwealth v. 279 421 Pa.Super. (1980), any question had rendered of specificity of the Duncan, moot. A.2d at proffer 1290. In this Court Rape had construed the Shield broadly, law an essential- exceptions. absolute bar without The ly dissenting mem- of our in Supreme disagreed bers Court Jorgenson with the majority’s specific conclusion the absence of a proffer excusable, emphasized was and patent of inadequacy proffer. at 517 A.2d 1292. We find that the allowance of for an remand evidentiary in hearing was Jorgenson limited to cases decided in the trial court Majorana, to and where trial court relied expressly upon Duncan. As neither limitation is met here, we find controlling. rather than Troy Jorgenson The here, fatal to adequate proffer of an therefore
absence claim. appellant’s is to dispose procedural defect sufficient
While the substantive claim, to note appropriate find it of the we Substantively, proffer claim as a deficiency well. meet the Shield law bar must seeking avoid suggested Majorana, set expressly in prong three test relevant; must be must be Black: the evidence forth may merely prejudicial; than not be probative more impeachment or rebuttal unprivileged cumulative other 84-85; Black, supra, 470 A.2d at Majorana, evidence. 401. cases 487 A.2d at Several have supra, demonstrated these significance of limitations. Erb, Pa. A.2d 352 an order of unpublished our Court reversed Supreme trial granted upon which had a new this Court based describ- complainant’s diary from the excerpt exclusion her which had been ing boyfriend, sexual interest charges to make false offered establish motive father, thwart- allegedly her who had against sexual assault daughter boyfriend his and the relationship ed the between See Commonwealth moving the by recently family. Erb, apparent of the curiam reversal for the and reinstatement per basis Majorana was that the standard verdict sentence *12 relevance, value, met. probative necessity had not been citing Majorana. A.2d at 184, 566 Johnson, 389 Pa.Super.
In Commonwealth v.
a
(1989),
proffer regarding
held that a
this Court
complainant suggesting
hearsay statement attributed to
on a
sexually
complainant
another
that
had
assaulted
alter-
occasion
to demonstrate an
prior
was
sufficient
to
explanation for the evidence or
demonstrate
nate
This
with
charges.
agreed
motive to raise false
Court
evidence,
relevant,
if
was
arguably
trial court that the
even
and so was
prejudicial
probative
nonetheless more
than
A.2d at 1202.
properly
therefore
excluded. 566
In Commonwealth v. Appenzeller,
388 (1989),
A.2d 1341
that,
this Court held
where the trial court
had admitted evidence that the complainant was
at
angry
the accused
filing
charges
criminal
against her boy-
friend, the trial court did not err in refusing
permit
accused to inquire as to the level of
involved in
intimacy
complainant’s relationship
boyfriend.
with her
The inquiry
was deemed to be focused on evidence which would have
been of
value,
probative
minimal
but of high potential
prejudicial impact.
Finally,
Simmons,
Commonwealth v.
355 Pa.Super.
this Court held
proffered
evidence that
the complainant had made her allegations
against the
only
accused
when she was first
confronted
her mother with a rumor that complainant
pregnant
did
not fall with the
precedent
bias/motive
of Commonwealth
Black,
supra. This Court found that the proffer failed
to demonstrate a sufficient motive to falsely accuse the
defendant so as to render the evidence more probative than
prejudicial, especially when the victim’s
reporting
delay
the assault had otherwise been fully presented
argued
to the jury.
Taken
limitations
the substantive
on
and Simmons
demonstrate
law
in
protections applied
to
Shield
exceptions
Rape
and Black.
signifi-
These limitations are
Majorana, Lyons,
ignored.
and cannot be
cant
to
Rape Shield law must bow the
summary,
In
while the
genu-
an
to
opportunity
present
an accused
permit
need to
evidence,
Rape
Shield law nonetheless
inely exculpatory
inquires
limitation on
ad-
remains an effective
abusive
formerly
matters
were
personal
dressed to irrelevant
which
complainant
defame the
while
to harass and
conducted
issues involved in
legitimate
from
distracting
jury
a
There is
delicate balance
be
sexual assault cases.
by
That
is to be maintained
requiring
maintained.
balance
evaluating
for
proffer
rele-
specific proffer
by
a
See Commonwealth
vance,
necessity.
probativeness,
Black,
supra;
supra;
Majorana,
Commonwealth
v. Troy, supra.
to the
case we have no
foregoing
instant
Applying
in
claim to be meritless.
finding appellant’s
hesitation
Rather,
First,
ap-
appellant
proffer
made no
whatsoever.
any
no idea
concedes that he has
of whether
rele-
pellant
by
proposed inquiry.
would
secured
his
vant evidence
be
evidence, it
relevant
Indeed, for the
to disclose
inquiry
only
not
a
sexual assault
separate
would have to establish
victim,
assault
a
separate
but
year
on the
old
time
which
period
infected assailant within a
gonorrhea
gonorrhea
for
state of
infection detected
would account
court,
here
neither the
nor
on
in the child victim.
trial
suggest
appellant
any
has
basis
appeal,
provided
the kind
find no
authority
such evidence exists. We
Shield
intrusions on
law
“fishing expedition” style
Pennsylvania
or
proposed by appellant
protections
case law.
or
our
United States Constitutions
Moreover,
and such
inquiry
permitted
even if the
were
discovered,
merely sug-
such evidence would
evidence was
infection; it would
source for the
gest
possible
alternate
of the infection.
appellant as the actual source
preclude
*14
high potential
and
probative
preju
the minimal
value
Given
evidence,
in
we would find no error
its exclusion.
dice of such
Durst,
v.
522 Pa.
Finally, improperly overwhelming any would find that other evidence rendered minimally error in the exclusion of this relevant questioning Hence, harmless a reasonable beyond doubt. for each the above reasons we find no merit in conten- appellant’s tion.
VII. Reciprocal Discovery
Appellant next contends that he was prejudiced by
the Commonwealth’s failure to
with the
comply
reciprocal
305(C)(1)(c)
mandate of
discovery
appel
Pa.R.Crim.P.
when
present
lant served notice of intent to
an
alibi defense.
trial court found that the appellant was well aware of the
claim,
presented
evidence to be
to rebut his alibi
and that
the technical
in
submitting
error of the Commonwealth
complainant’s
list with the
name and the name of the
police
prior
officer to whom
inconsistent statements had
appellant
been made
was harmless.
Appellant
claim,
aware that the victim would contradict his
and
alibi
provided
copies
he was
with
of the police reports which
recorded his
inconsistent statements
informal
during
Jackson,
These facts render
discovery.
Commonwealth v.
(1974)
distinguishable.
457 Pa.
2. recently significantly, panel has this bery More counts in 1980. imposed appellant’s convictions of on judgment of sentence affirmed point assault on separate knife sexual in a rape and terroristic threats (Pa.Su- Nieves, 579 A.2d adult victim. See an 1990). per.
Conclusion upon Based the foregoing, we affirm judgment of sen- tence and deny allowance of appeal of the discretionary aspects sentence.
JOHNSON, J., filed a concurring dissenting opinion.
JOHNSON, Judge, concurring dissenting: I in the join majority’s decision to affirm Nieves’ convic- tion, and I agree with the majority’s analysis disposition regarding the issues the trial court questioning, contemporaneous evidence, misconduct indirect references misconduct, to prior reciprocal and the discovery, challenge to discretionary aspects sentencing. However, I do not join any part analysis of the of the Rape Shield Law I agree issue. with the in that the majority only requested permission to conduct a regarding cross-examination victim’s sexual activity properly denied. In this case both Nieves and the twelve-year-old victim had gonorrhea. The victim had been infected less than forty-eight hours post-assault before the examination. Nieves wanted to cross-examine the victim in an attempt to others, show that she had sexual relations with which would *16 be an alternate source of her gonorrhea. He did not have a proffer of specific evidence but rather asked the essentially court to allow him to fishing expedition. conduct a The Law, Rape Shield codified at 18 provides: Pa.C.S. § (a) General specific rule.—Evidence of instances of the alleged conduct, victim’s past opinion sexual evidence of the alleged conduct, victim’s past reputation sexual alleged evidence of the past victim’s sexual conduct shall prosecutions be admissible in under chapter this ex- cept evidence of alleged past the victim’s sexual conduct with the defendant alleged where consent of the victim is at issue and such evidence is otherwise pursu- admissible ant to the rules of evidence.
296
(b) Evidentiary propos- who proceedings.—A defendant alleged past offer evidence of the victim’s sexual es to (a) file a shall written pursuant conduct to subsection If, at and offer at the time of trial. the proof motion of trial, determines that the motion and time of the court faces, on their the court shall proof offer of are sufficient hearing findings and shall make on order an camera of admissibility as to relevance and the the record the forth in to standards set pursuant evidence proposed (a). subsection 3104.
18 Pa.C.S. § intent legislative is is unambiguous, The statute of enacting past In statute and evidence making clear. this inadmissible, the reputation past or for conduct conduct past “totally the notion that legislature rejected]” is consent to act complainant probative of the of conduct 602, 609, Majorana, Pa. at issue. Commonwealth 503 (1983). a legislature strong The made 470 A.2d any that sexual conduct with third statement use defect consent or moral is purpose proving person probative and of limited value. only prejudicial past conduct The statute allows consideration whether if the the defendant is victim and only evidence admissible relations, consent. In sexual and the defense is past had 3104(b) rigorous procedure the statute sets forth to § to whether admit or exclude the evidence. determine to in issue place must consent Preliminarily, by defendant allegation, proof supporting of evidence an offer is on its the court then if the offer sufficient face will only hearing an in camera determine whether the conduct to the evidence excluded rules pursuant should be proffered relevant, evidence; is, logically even if evidence outweighed is probative should be excluded if its value Common- See 3104(b); 18 Pa.C.S. prejudice. unfair § Black, A.2d 396 wealth v. Pa.Super. challenges its Shield Law has withstood Quartman, constitutionality. (1983) this court decided that
297 defendant’s to right not violate the Law did Rape Shield Strube, 274 Pa.Su and Commonwealth confrontation, in denied, Strube v. Penn cert. (1979), A.2d 365 418 per. (1980), 992, 66 L.Ed.2d 449 U.S. S.Ct. sylvania, 3104(b) in does not set forth procedure that the we decided In process. to due right constitutional a defendant’s violate Quartman that the: explained the court gives way, often to confront witnesses right
fundamental The exclusion however, principles. evidentiary to certain instance, idea evidence, premised is on the hearsay necessary relevancy often lack the that such statements potential truthfulness outweigh questionable their and irrelevant prejudicial In way, the same prejudice. These is often excluded. evidence opinion reputation an accused his deny do not evidentiary exclusions varied is his need for the evidence trial[,] a fair right relevancy. truth and considerations of outweighed right of the accused is no constitutional Similarly, there prejudicial, is introduce evidence case to rape and irrelevant. inflammatory 349, 353, 458 Quartman, Commonwealth narrowly-drawn have created two additional courts Our exception to the bar in addition to the evidence exceptions v. Major- the statute itself. supplied by ana, present semen was Pa. de- The defendant’s alleged attack. after the victim that semen an attack but that there never was fense was the victim sex with he had consensual present because Supreme Court attack. alleged before the two hours and held a consent defense this situation from distinguished to confronta- right the defendant’s preserve that in order to automatically bar tion, may Victim Shield Law rape produced charged an act other than evidence that be evidence would of intercourse. Such signs objective a sexual act there even was negate that relevant to directly the time of at and the defendant between victim *18 However, attack. the alleged emphasized court the proffered evidence must be: an enough
evidence of act close in time to account for the signs of intercourse objective and is further limited to the purpose explaining presence of those objective However, cannot engage signs. defendant wide-ranging harassing cross examination the statute legitimately prohibits.
Majorana,
added).
overdue, laws, Rape construed, if rigidly imper- Shield could missibly encroach upon right defendant’s to confront and is witnesses which secured the United by cross-examine Opinion Pennsylvania Majority Constitutions.” States suggests statement that a re-evalua- improperly at 9. This means of the interests by balancing of constitutionality tion Shield is invoked. every Rape occur time the Statute must First, Shield constitution- question Law’s courts not be has been our and should ality resolved Further, reasoning case. present under consideration and Black Majorana premise constitutionality, from the of the two to the bar only exceptions create absolute in the stat- single exception outside of the included statute *19 means of question by itself. The of constitutionality, ute test, balancing a interests should not be revisit- of applying authority No such an every rape approves ed in case. presents Unless defendant the court with approach. the its the statu- evidence that on face establishes that either applies, of the tory exceptions or one two judicially-created will proffered requested the evidence or cross-examination the without Rape be excluded on basis of the Shield Law Black, 3104; Majorana, supra; consideration. further § That the invokes numerous cases that supra. majority exceptions does not applies consider whether one of these only misleading a prove contrary; the discussion creates language always go beyond plain that courts impression Rape statute when Law. applying of the Shield us. analysis required No cautious is the case before Rather, it calls for of law to a fact application direct Supreme by situation that has been considered our already Nieves to cross-examine the victim about Court. wanted an alternative prior activity sexual in order to uncover Therefore, if under Majorana, gonorrhea. source of her inter- had that the victim had proffered Nieves evidence within gonorrhea course with another infected with person may question, hours of incident in the court forty-eight an in camera if, following allowed such have evidence the evi- it hearing, probative determined that value unfair outweighed prejudice. dence introduction of However, specific prior no Nieves offered evidence or person victim with particular intercourse of the sexual Hon. alleged Opinion, time close to the assault. particular Eckman, Judge, March 1989. Richard President filed D. Rather, to cross-examine the victim permission he asked Nieves activity her sexual Because prior generally. about her regarding generally to cross-examine the victim asked evidence, we proffer did not activity specific sexual past is exception. balancing No reach the Majorana never Law. apply Rape All do is to Shield called for. we must court denied Nieves’ properly hold that the trial I would regard- to cross-examine the victim request permission on basis that experience her sexual the sole ing it. Statute prohibits Shield the admissi- also majority’s analysis I would add to the of business scope medical records bility prison upon that Nieves’ based exception argument records issues 1955, codified at the Disease Prevention Control Law given reason et fails on the basis of the seq., 35 P.S. 521.1 court, penalties, the act contains although the trial Further, penalties are exclusion of evidence. none of these Moore, I hold that would alloc, 616, 619, Pa. granted *20 et interprets 521.1 which 35 P.S. § admissibility to the challenge defeats both a seq, challenge and a gonorrhea records Nieves had medical manner of its admission. to the