This appeal follows judgment of sentence for rape and involuntary deviate sexual intercourse. Appellant was tried by a jury and convicted for an attack upon his daughter. Following denial of his post-trial motions, appellant was sentenced to a term of 11 to 22 years imprisonment. 1 He now appeals.
Appellant raises four challenges to his convictions. The lowеr court dismissed these claims. After reviewing the record and briefs in this case, we are satisfied that appellant’s contentions lack merit. For the reasons below, we too rejеct appellant’s claims.
Appellant argues first that the trial court improperly limited his cross-examination of the victim. The girl was 12 years old. Appellant alleges that she may have fabricated the story in order to get attention. At trial he sought to substantiate this claim by asking the girl on cross-examination whether any of her friends had been raped. The prosecution objected. At side bar, counsel explained:
MR. DAGHIR: It’s kind of difficult for a defense attorney in this type of case to—if the witness is not telling the truth, then there has to be some reason, and it’s a defense point. You don’t have to have much ability to show this, whether she fantasizes, maybe one of her *574 friends has been raped, which I think is so, maybe one of her friends got a lot of attention, and she wanted attention. I don’t know. Just probing.
THE COURT: Do you have supporting testimony?
MR. DAGHIR: All I have is through my investigation, Your Honor, I have heard rumors that her best friend Theresa, I believe it was Theresa was raped, and that Joyсe Simon and Theresa would not press charges.
N.T. at 36-37. Counsel admitted that he could not offer supporting testimony to establish a basis for his question. The court sustained Commonwealth’s objection.
Counsel may on cross-examination explore the potential bias or interest of the alleged victim in a rape prosecution.
See Commonwealth v. Black,
Appellant objects next to the аdmission of statements made by the victim to a neighbor. After the attack, the girl had run to the neighbor’s home. The neighbor, Joyce Simons, testified to what the girl had told her then. The court admitted testimony under the “excited utterance” exception to the hearsay rule. Appellant argues that too much time had elapsed for the statements to qualify as excited utterаnces. Further, he contends that the statements had been elicited by Simons and so were not spontaneous.
Simons testified that, at approximately 1:30 that morning, she had answered the door and found the girl standing *575 there in blue jeans and a nightgown. In response to Simons’ query, the girl said “My dad just raped me.” Then, again at Simons’ request, the girl explained what her father had done.
To constitute an “excited utterance,” a statement must be:
a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrеnce, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceivеd, and this declaration must be made so near the occurrence in both time and place as to exclude the likelihood of its having emanated in whole or in part from his reflеctive faculties.
Allen v. Mack,
With respect to appellant’s remaining claim, we note that, at trial, the girl testified appellant was her father. Appellant, in his testimony, acknowledged her as his daugh
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ter. Appеllant now contends that his convictions for indecent assault, statutory rape and two counts of rape must fall because Commonwealth failed to establish that he and his daughter were not husband and wife. It is true that for each of these offenses Commonwealth must establish that the accused engaged in the proscribed conduct “with another person not his spouse.” 18 Pa.C.S. Secs. 3121 and 3122;
see
18 Pa.C.S. Sec. 3126 (“with another not his spouse”).' It is equally true that Commonwealth bears the burden of proof beyond a reasonable doubt as to every material elеment of the crime charged.
Commonwealth v. Bishop,
As Commonwealth notes, “To require her to testify that she was not married to him would have been embarrassing and unnecessary.” Additional testimony was unnecessary because, under the marriage laws of Pennsylvania, father and daughter cannot legally wed. 23 P.S. Sec. 204(a)(2) (Purdon’s 1985 Supp.). A marriage within the prоhibited degrees of consanguinity is void. “(I)ts invalidity may be declared in any collateral proceeding.” 23 P.S. Sec. 204(b) (Purdon’s 1985 Supp.). Commonwealth need not disprove the existence of аn invalid marriage.
Briefly stated, where unrebutted testimony establishes a relationship within the prohibited degrees of consanguinity as defined by 23 P.S. Sec. 204(a)(2), it may be validly inferred that the accused and the alleged victim were not husband and wife under the laws of this Commonwealth. We are satisfied, for the reasons above, that the inference passes constitutional muster. For the purposes of a criminal prosecution, “the constitutionality of a standardized inference invoked to establish an essential element of the crimes charged must be judged by thе reasonable doubt
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standard.”
Commonwealth v. DiFrancesco,
Finally, appellant argues that the lower court erred in admitting testimony as to his silence at the time of arrest. The chаllenged testimony consisted of a prosecution witness’ reference during direct examination to “written statement forms.” From this solitary reference to written statement forms, apрellant would infer an impermissible comment on his exercise of his constitutional right to remain silent.
A defendant has the right to remain silent in the face of accusations of wrongdoing. Pa. Const. Article I, Sec. 9. While it is improper to comment on the accused’s silence,
Commonwealth v. Williams,
Judgment of sentence affirmed.
Notes
. The jury returned a guilty verdict on 7 counts: rape by forcible compulsion, 18 Pa.C.S. Sec. 3121(1), rape by threat of forcible compulsion, 18 Pa.C.S. Sec. 3121(2), statutory rape of viсtim under 14 years of age, 18 Pa.C.S. Sec. 3122(1) involuntary deviate sexual intercourse by forcible compulsion, 18 Pa.C.S. Sec. 3123(1), involuntary deviate sexual intercourse by threat of forcible compulsion, 18 Pa.C.S. Sec. 3123(2), involuntary deviate sexual intercourse with person under 16 years of age, 18 Pa.C.S. Sec. 3123(5), and indecent assault, 18 Pa.C.S. Sec. 3126(1).
The court, finding merger, sentenced appellant only on one count each of rape, 6 to 12 years imprisonment, and involuntary deviate sexual intercourse, 5 to 10 years imprisonment. Section 9718(a) of the Sentencing Aсt sets a mandatory minimum sentence of 5 years when the offense involves an infant, “the victim is under 16 years of age,” 42 Pa.C.S. Sec. 9718(a) (Purdon’s 1985 Supp.). Appellant’s daughter, at the time of the attack, was 12 years old.
. We note that in other jurisdictions, the legislatures have shifted the burden of persuasion to the accused to establish a valid marriage to the alleged victim. See, e.g., Alaska Stat. Secs. 11.41.445(a), .81.-900(b)(1) (1978); Me.Rev.Stat.Ann. Tit. 17-A, Secs. 5(3), 253.4 (Supp. 1978); see abo Model Penal Code Sec. 213.1.