COMMONWEALTH of Pennsylvania, Appellee, v. Paul A. RICHTER, Appellant.
Supreme Court of Pennsylvania.
April 24, 1998.
Reargument Denied June 26, 1998.
711 A.2d 464
Argued May 1, 1997.
Catherine Marshall, Peter J. Gardner, Philadelphia, for Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
CASTILLE, Justice.
We granted allocatur in this case to address whether a court can properly admit evidence in a rape trial of the defendant‘s past sexual assaults against the victim to explain the victim‘s failure to resist and to establish that the intercourse occurred through forcible compulsion or the threat of forcible compulsion. For the reasons expressed herein, we affirm the Superior Court.
On October 27, 1994, a jury found appellant guilty of the rape,1 indecent assault,2 and unlawful restraint3 of his ex-wife. Appellant was sentenced to consecutive prison terms of six to twenty years for the rape conviction, and eight to sixteen months for the indecent assault conviction.4
The record below establishes the following: On May 6, 1993, at approximately 7:30 a.m., appellant called his ex-wife, the victim, and asked if he could come to her house to show her photographs of their son‘s First Communion party. She agreed and appellant arrived at approximately 9:15 a.m. Appellant accepted a cup of coffee from his ex-wife and they sat down on the couch. After they viewed the photographs, appellant unzipped his pants, took out his penis and asked her to perform fellatio, and then he asked if she was going to “be nice“, which she testified from her experience meant that he wanted to have sexual relations with her.
The victim testified that she told her ex-husband “no” and that sexual intercourse could cause her to lose the baby she was carrying.5 The victim then got up and went into the
As the victim leaned over to put a coffee cup down on the table, appellant held her down by the shoulder and pulled down her pants. Appellant told her that if she wanted anything for their son, she must have sexual intercourse with him “one last time.” Appellant then inserted his penis into the victim‘s vagina from the rear for approximately a minute and a half. While this was occurring, the victim was crying and repeatedly telling appellant to stop. After finishing sexual intercourse appellant left the house and threw twenty dollars at the victim.
The crime of rape was defined at the time of this incident as follows:
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
...
The victim received medical attention at a hospital, which led to charges of rape and other related offenses being lodged against appellant. The rape charge was ultimately withdrawn because the victim was hesitant about testifying at trial; however, appellant pleaded guilty to a charge aggravated assault. Appellant was sentenced to probation, which included the condition that he stay away from the victim. Notwithstanding the court‘s order that appellant stay away from the victim, approximately six weeks later appellant moved back into the victim‘s home with the victim. Appellant and the victim proceeded to have a child in 1984.
The second incident of assault occurred on September 24, 1986, after appellant and the victim were divorced. When the victim arrived at appellant‘s home to return their son from a visit, appellant struck her in the face, breaking a tooth, and proceeded to force her to engage in sexual intercourse. Although the victim was hospitalized, after this incident, she did not report the matter to the police.
When the victim testified at trial in the instant matter, during direct testimony the prosecutor asked the victim why she did not resist her ex-husband‘s advances or fight back. The victim said that she was fearful for the safety of her unborn child and that she knew from previous experience what appellant would do to her if she were to resist. She then proceeded to relate to the jury the two previous incidents described above.
In the present case, the Superior Court created a new exception specifically for rape cases; that is, to allow the admission of evidence of prior bad acts in rape cases, in essence, to satisfy the “threat of forcible compulsion” provision of the rape statute. While we agree that the evidence was properly admitted, we diverge from the Superior Court‘s creation of this “rape exception” since such evidence was properly admissible under an existing exception. Thus, we affirm the Superior Court, but on different grounds.
In Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985), this Court created an exception to the general prohibition against the use of prior bad acts where force or threat of harm is an element of the offense. The victim in Claypool testified that when she was attacked, the defendant told her that he had been in jail previously for rape, and that this statement, along with other factors, placed her in fear and intimidated her. This Court held:
[W]hen there is evidence that a statement about prior criminal activity was made by the defendant in order to threaten and intimidate his victim, and when force or threat of harm is an element of the crime for which the defendant is being tried, such evidence is admissible.
In the present case, although appellant did not make a statement which could be construed as threatening or intimi-
We note, as we did in Claypool, that our failure to allow the admission of such evidence would, in essence, grant immunity to criminals for their deliberate intimidation, whether it be by statements to the victim of their criminal past or whether it be by physically abusive behavior with which the victim is all too familiar. Accordingly, the evidence presented here of appellant‘s prior forcible sexual assaults against the victim was relevant to establish the element of threat of forcible compulsion, and not merely to establish appellant‘s bad character. However, recognizing that evidence of prior criminal acts has the potential for misunderstanding on the part of the jury, we conclude that such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted. In this case, such an instruction was given. The trial court below correctly informed the jury that appellant was not on trial for the two prior incidents and that the victim‘s testimony, if accepted by the jury, was admitted for the sole purpose of showing that the act in question was performed against the victim‘s will and without her consent. The jury was further instructed that they would have to consider whether these prior incidents, in combination with the other evidence presented, would have prevented a reasonably resolute female from resisting if she was in the same situation as the victim. This limiting instruction properly explained the purpose for which the evidence was to be used by the jury, and it is presumed that the jury followed the instruction absent evidence to the contrary. Commonwealth v. Bronshtein, 547 Pa. 460, 691 A.2d 907, 916 n. 16 (1997).
ZAPPALA, J., files a concurring opinion in which FLAHERTY, C.J., and NIGRO, J., join.
ZAPPALA, Justice, concurring.
I agree that evidence of Appellant‘s past sexual assaults of the victim is admissible under the facts of this case to establish a lack of consent. I write separately, however, to disassociate myself from that portion of the majority opinion which relies on Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985), to reach that conclusion.
In Commonwealth v. Claypool, the defendant was convicted of rape, involuntary deviate sexual intercourse and simple assault. At trial, the defendant admitted to engaging in sexual acts but contended that the victim consented. The Commonwealth introduced evidence that the defendant placed the victim in fear during the assault by telling her that he had previously served time in jail for rape.1 Thus the evidentiary question was whether the defendant‘s statement was admissible to establish the “threat of forcible compulsion” element of rape. We held that “when there is evidence that a statement about prior criminal activity was made by the defendant in order to threaten and intimidate his victim, and when force or threat of harm is an element of the crime for which the defendant is being tried, such evidence is admissible.” Id. at 205, 495 A.2d at 179.
Unlike Claypool, the instant case does not involve a statement made by the defendant to threaten or intimidate his victim. Instead, the victim testified regarding Appellant‘s past criminal conduct, i.e., that he had previously sexually assaulted her.2 Accordingly, I find that reliance on Claypool is misplaced.
FLAHERTY, C.J., and NIGRO, J., join this Concurring Opinion.