*3 PRICE, Before LIPEZ, SPAETH and JJ.
PRICE, Judge:
In this аre appeal we asked to determine the constitution- a ality portion of the Pennsylvania (18 shield rape law 3104(b)). Pa.C.S. Because we find § that section of the Code passes Crimes constitutional muster in the face of the advanced, arguments and we because determine appellant’s allegations other error merit, to be without the and order judgment sentence are affirmed.1 Viewing the light evidence in the most favorable the to winner, Commonwealth as verdict the following is a summa- ry pertinent facts adduced at trial. After leaving work at 11:00 on p. 7,1976, m. May Miss Pamela Kay Fisher accompanied her boyfriend to a hosted a party by mutual acquaintance. The occasion failed to a produce convivial Appellant rape (18 3121(1)) simple 1. was convictеd of Pa.C.S. and § (18 2701(a)(1)), following jury assault Pa.C.S. a trial § concluded motions, Subsequent post-trial March to the denial of he years was sentenced to concurrent of from terms 14 months to 5 conviction, imprisonment rape on the and from 6 to months on the simple pay assault conviction. He was $500 also ordered to a fine of prosecution offense, and costs of for the a fine $100 and for simple assault offense. two, argument and an ensued between
atmosphere to her companion’s Miss Fisher leave prompted which later was following party. ride home She during truck friend, and while the two another male picked up by quickly station, encountered three gas they at a stopped were who them to another friends, appellant, invited including Fisher, took Miss fact, unaccompanied, the three party. the Sons of Satan Club. building Motorcycle used beer, Miss building being given and entering After men. When she one of the three Fisher was embraced resisted, joined the fracas and forced the victim appellant Fisher her hand out and struck swung onto sofa. Miss Miss Fish- responded by bloodying who appellant, promptly then her striking and her twice more. He ordered er’s nose refusal, her the victim to another rise, upon dragged time, Stalling that she undress. for Miss sofa and demanded first, while she sur- appellant undress persuaded Fisher The en- attempted to unlock front door. reptitiously unsuccessful, clothing, tore off her appellant deavor was sofa, have intercourse proceeded upon forced her time, this continued to During appellant victim. the head latter’s Miss Fisher about because pummel finally feigned to free herself. She unconscious- struggle “revival”, gather and was then allowed to ness and a later dress, and leave the clubhouse still clothing, her three When the group stopped of her abductors. company rest dinner, and after a short escaped, Miss Fisher home, reported police. the incident *4 following first contention is based on the
Appellant’s trial, filed a motion and offer of facts. Prior to appellant his to introduce evidence estab- indicating intention proof with as prior sexual conduct appellant, the victim’s lishing in night to sexual intercourse well her consent as pursuant was submitted to Pa.C.S. This motion question. 3104(b) provides: which § of the specific rule.-Evidence of instances
“(a) General conduct, sexual evidence of past opinion victim’s alleged conduct, reputation sexual and alleged past victim’s alleged evidence of the victim’s past sexual shall conduct in prosecutions be admissible under this ex- chapter cept evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim at and issue such evidence is pursu- otherwise admissible ant to the rules of evidence.
(b) Evidentiary proceedings.-A defendant who proposes to offer evidence of the alleged victim’s past sexual con- duct pursuant (a) to subsection shall file written motion and If, offer at the time of proof trial. at the time of trial, the court determines that the motion and offer of proof faces, are sufficient on their the court shall order an in camera and shall make hearing findings on the record as to the relevance and admissibility the proposed pursuant to the standards set forth in subsection (a).”
Appellant accompanied above motion with challenge to statute, constitutionality effect alleging its was deny to him his fifth amendment his rights, right due his process, right confront his accusors. Following in hearing camera convened in accordance with 18 Pa.C.S. 3104(b), attended the district attorney, § the Honora- ble A. John Walter ruled the statute constitutional and held trial,
that appellant chose, could if he so testify as to his prior sexual relations with the victim. The hearing judge also ruled the assistant district attorney would not be forbidden from discussing the camera proceedings the victim or any other Commonwealth witness.
Appellant now raises two challеnges the constitu 3104(b).2 of 18 tionality Pa.C.S. Initially, he cites the § decisions Supreme United States Court Wardius v. 2208, 37 Oregon, 412 U.S. (1973), S.Ct. L.Ed.2d 82 Appellant’s tripartite brief to this court contains a attack on the however, validity. argument, dealing statute’s One with the statute’s alleged infringement right by jury, of his sixth amendment to a trial presented appellant’s post-trial was not trial court written motions, opinion nor was it discussed in the court’s on those mo- preserved consequently appellate has tions. It not been review. Carr, (1977); Commonwealth Pa. Common- Blair, (1975). wealth v. 460 Pa. A.2d *5 204 in own court Commonwealth Conta supreme
that our his (1974), kos, support Pa. as of 18 Pa.C.S. requirement the disclosure contention guaranteed 3104(b) process rights violates his due § disagree. We fourteenth amendment. and similar
The raison d’etre of Pa.C.S. § partially in is to correct jurisdictions, shield laws other rape ap has justice system in which our criminal the manner and That system, the victim of sexual assault. proached being criticized as has been society general, severely in alleged the interests protecting solicitous overly exclusion of the female’s virtual perpetrator, male response to this rights.3 apparent and legal sensibilities jurisdictions legislation have enacted condemnation, several trauma and emotional physical to alleviate designed E. assaulted female. sexually suffered disorientation 131; 1271, 2 1974Iowa Acts ch. g., § 1974Conn.Pub.Acts. 74— requirement testimony complainant (repealing 65, 1, 30,1975, corroborated); Act of P.L. No. July § give institutions to health education (requiring P.S. 10171 § for their victims treating rape provide instruction in 241.- being); and emotional well Minn.Stat.Ann. physical §§ of community- (Supp.1979) (directing devеlopment 51 to 53 Men, See, Brownmiller, g., Against Women and S. Our Will: e. Trial, Rape Berger, Rape (1975); Man’s Woman’s Tribulation: Cases Courtroom, (1977) cited as in the Berger]; Meyer, 77 Colum.L.Rev. [hereinafter View, L.Q. Rape: 3 Police The Victim’s Point of Comment, Law, Society (1974); Rape Rape Laws: Sexism in and and Note, Rape (1973); the Victim a Forcible Case: 61 Calif.L.Rev. View, (1973). A Feminist 11 Am.Crim.L.Rev. 335 disapprobation are viewed is not This with which victims apparently predicat- justification, but is instead to rational amenable historical, emotional, pseudo-psychological In a factors. ed traditionally tangible society, ex- there has been a male dominated loathing’ pression toward the female who would of ‘fear and directed being concepts cry rape; as the biblical such fear ancient as roоted Potiphar’s vengeance (exemplified parable in the of female notion wife, Brownmiller, 21-23) supra at recent and as see Genesis frequently psychological proposition that women as Freud’s Wigmore, 924(a) rape, graphically III Evidence § fantasize about see 1940). (3d ed. aid victims *6 assault); gener- based to of sexual see programs Rudstein, Laws: Constitutional Prob- Rape Shield Some ally 1, lems, (1976) L.Rev. 2-3 Mary 18 William [hereinafter reform, prevalent cited as The most of type Rudstein]. however, deals with statutes the traditional rules of altering so as limit in rape degree evidence cases some defendant’s into the sexual life of the inquiry previous alleged victim.4 law,
At common had been defined as rape traditionally female, sexual intercourse between a male and a not his wife, See, force her will. e. by against g., Pa.C.S. 3121; Perkins, Law (2 1969). Criminal ed. Such a § definition lack of consent a element made material offense, and its presence recognized defense. To assist consent, defendant in such establishing it has almost univer been held that one accused of forcible at sally rape may tempt prove bad character for complainant’s chastity.5 I (3d See Evidence This Wigmore, 1940). ed. §§ constitutes an rule in exception general criminal law character, that evidence of whether reputation, bad opinion observation, acts, from specific or will not be received prove person whose character is to be shown sought engaged in certain conduct on a occasion. Com particular monwealth v. Connolly, Pa.Super.
(1970); (3d McCormick, Evidence 57 Wigmore, 1940); ed. § jurisdictions adopted type rape 4. At least 32 have some shield law. Berger, supra January see For a list of these statutes as of 32, n. 196. judicial defendant; 5. This is not the sole assistance offered the requirement proof of corroboration and strict of forcible resist- long recently ance have been established and condemned contem- porary reformers. The rationale for such formidable barriers thusly: conviction was voiced Lord Hale charge rape] against “A such as that made the defendant [of and, made, easily this case is one which is made once difficult to against, person defend even if the accused is innocent. Therefore, requires you testimony the law examine the person the female named in the information with caution.” Hale, Crown, History (1st 1 M. of the Pleas of the Am. ed. 1847). (2d 1972).6 ed. this information Although Evidence 91 § “a doctrine of degree relevancy, might possess some . what is . . to exclude Auxilliary Policy operates un relevant, the uncontrollable and avoiding policy —the condemnation, which such prejudice, possible unjust due . . .” I Evidence Wigmore, . might induce 1940). (3d ed. § however, the admission of such
In the of rape, case it facet of the offense which makes merely one testimony priori conclusion It on the generis.7 premised sui woman it is more that an unchaste probable courts that to intercourse than virtuous woman.8 See would assent classic, Rudstein, extravagant, if rather at 4. supra *7 Cowen, J., in of this was advanced argument formulation 192, Abbot, (N.Y.1838): v. Wend. 195-96 People 19 here, usually, аs the sole witness prosecutrix “The facts, for his put rely and the accused is principal evidence. fact Any tending defense on circumstantial there was not the utmost reluctance the inference that . resistance is received always and the utmost will; and absolutely against The connection must not previous prostitution we told that shall make are to be which raise a doubt of one those circumstances among be advised to make no distinc- assent? That triers should and tenant virgin tion their minds between death to stew, prefer pollution, one who would —between lucre, her who, lust and offers daily and another incited by embraces of the other sex? to the indiscriminate person infer practiced And will not assent you readily more being general exceptions, two of which This tenet admits several 6. initially when the defendant offers that such evidence is admissible Sierakowski, character, good v. his evidence of Pa.Super. Commonwealth 321, (1944), and in homicide cases when the Amos, v. accused raises issue self-defense. Commonwealth 297, (1971). 445 Pa. A.2d supra Berger, See at 7-10. 7. very position unchastity A have taken the few courts also whole, e., dishonesty. unchastity imports credibility i. reflects on as State, (1949). See v. 150 Neb. 35 N.W.2d Frank
Messalina in loose attire in the than reserved and virtuous . Lucretia? . . not so much probability [T]here that a prostitute prisoner’s common or concubine would withhold her assent as one less arid depraved; may ask, I not not the probable does same distinction arise between one who has submitted already herself another, lewd embraces and the аnd female coy modest severely instinctively shuddering chaste ” thought of impurity?
A later more writer, restrained but no less dogmatic, opined that “no mind impartial can resist conclusion that a female who been in had the recent habit of illicit intercourse likely others will be so to resist who is as one State, spotless 655, 658, Lee pure.” Tenn. S.W. (1915).9 neither the
Instantly, regard- traditional rules of evidence ing the admission of such nor testimony, question whether there does indeed exist a causal between connection prior sexual activity subsequent consent in voluntary light of sexual mores need us. contemporary detain arguments persuasive are that the logical underpinnings the character doctrine are See, dubious the extreme. e. g., Brownmiller, supra; Comment, Berger, supra; Rape Evidence Reform in Missouri: A Remedy the Adverse Impact Evidentiary Victims, Rules on Rape 22 St. Louis (1978); Note, U.L.J. 367 (1976); 9 Ind.L.Rev. 429-30 *8 Note, 7 L.J. (1976). 125 More Loyola importantly decision, of our purpose 18 3104(a) represents Pa.C.S. § legislative determination that such inadmissible, evidence is save in limited severely situations.
What is certain is that the introduction of such evidence
at trial has a highly traumatic and
effect on
embarrassing
Indeed,
witness.
in our
complaining
present adversarial
system, the
of
art
cross-examination in
cases is often
rape
not
a
employed
rapier
as
to reveal the nuances of a witness’s
as
testimony, but
underscore
bludgeon
complain-
to
lines,
Note,
judicial
see
along
9. For further
rhetoric
these
3 Hofstra
(1975).
L.Rev.
n.3
course, as
commenta-
checkered
Of
one
past.10
ant’s possibly
noted,
place
“it
seems
to
embar-
hardly
appropriate
tor has
in the same class with the injury
to the witness
rassment
at
if he is
convicted
wrongly
on the defendant
inflicted
have, however, recog-
at 41. Courts
Berger, supra
trial.”
who
from
to
takes the stand
protect
person
nized a need
or
him. See
to harass
humiliate
designed merely
attacks
States,
687, 694,
218, 220,
282 U.S.
S.Ct.
Alford United
(1931).
The designed and are history value of sexual probative minimal travesty presenting prohibit, degrees, to to varying to the sexual testifying of defense witnesses noisome stream fanciful, sordid and sometimes of the often propensities, the various The details of particular witness. complaining to discussion11 al- the instant germane statutes are relative be described their broadly they might though from admissibility ranging highly spectrum on a position The is exemplified former permissive.12 restrictive to highly defendant only admits conduct with the by Michigan, which activity proof of sexual if instances specific or “inflammatory prejudi- at issue and its material to a fact value.” Mich. outweigh probative cial does not its nature extreme are 750.520j. opposite Ann. At Comp.Laws § than a reminder to the as little more acting those statutes character evidence take note judge particular trial tactics, system’s perceived hostility coupled with the 10. Such gross underreporting complainant, may rape for the well account rape actual incidence of It has been estimated that the crime. figure. twenty reported ranges times the from three and one-half Note, (1972). L.J. Yale 1374-75 laws, Berger, supra see at 11. shield For overview Rudstein, 32-39; supra A closer examination individual 9-14. myriad may review articles on the be found in the law statutes See, Comment, g., subject. A Idaho Code 18-6105: Limitation § e. Relating the Prior Sexual Conduct the Use of Evidence Trials, (1979); Rape L.Rev. Com- 15 Idaho Prosecutrix in Idaho Far, Ky.L.J. ment, Step Kentucky Rape Law: One Too Shield Note, (1977). (1977); Wash.L.Rev. 1011 Berger, supra at 33. See *9 York, example, New for states rule presented. general efficacy exclusion then emasculates its with several specific and exceptions appends a final permitting provision . admission of “determined the court to be and justice.” relevant admissible the interests of 60.42(5). N.Y.Crim.Proc.Law fall majority of statutes § between these two extremes. are import statutes,
Of more immediate those at least fifteen, provide which for a type preliminary hearing similar to that contained 18 Pa.C.S. While 3104(b).13 § most do discuss the form the hearing, majority expressly demand that the proceedings admissibil- regarding ity camera, e. g., 1-20-15(3) held N.D.Cent.Code 12. § (1975). Concerning the of the timing hearing, the statutes as to vary whether it should be widely prior held or trial. during
It is
hearing
this
the concomitant
of de-
disclosure
fense
that appellant
information
deems
repugnant
principle
Oregon,
of Wardius v.
U.S.
93 S.Ct.
(1973),
discovery amendment: the fourteenth regard to Due Process Clause has little
“Although say the the must be parties of which ing discovery the amount to the balance of forces ... it does speak afforded . acсuser. . . the accused and his between [I]n of state interests strong showing of a absence street. The State two-way must be a discovery contrary, so be run as a ‘search truth’ insist that trials may not concerned, maintaining are while witnesses far as defense It is funda for its own witnesses. ‘poker game’ secrecy to require divulge to a defendant unfair mentally subjecting own case while at the same time details of his concerning refutation surprise him the hazard of to which he disclosed to the State.” of evidence very pieces 474-75, at 2212-13. at Oregon, supra v. S.Ct. Wardius omitted). (footnote relied on Wardius in court supreme subsequently
Our Contakos, 455 Pa. Commonwealth Pennsylva- struck down as unconstitutional (1974), when it (former rule Pa.R.Crim.P. of the notice-of-alibi nia’s version some basic differences in the court noted 312). Although сon- rules, Pennsylvania the fact that as well as the two it discovery rights, some minimal ferred the defendant upon departing to a result distinction insufficient yield held the in Wardius. Court Supreme from that reached by here, however, far too wide bridge Appellant attempts rule in Wardius the notice-of-alibi analogizing a chasm law, and problems shield several rape and Contakos with the concept the alien reci- importing when apparent become First, the of evidence which type into these laws. procity situations type forced to reveal Wardius the defendant is the disclosure envisioned different from fundamentally is former, revelation of an alibi law. shield defense of the entire is disclosure defense tantamount point This was the identity. pivotal based on mistaken comprе- received a the prosecution Wardius—the fact that without the defendant’s case description hensive necessity disclose even the slightest of its portion own accumulated information. Disclosure of evi- unchastity dence, however, least one removed step from elements a charge rape. is, forming That even if of prior disbelieved, sexual conduct or rebutted the defendant has not been precluded nevertheless from awarded being acquittal on a defense of predicated consent. Such disclosure is not the nature of a bald and unreciprocated information, disclosure trial but is more akin a pre-trial motion to rule on number of eviden- any matters. tiary Such conclusion was reached by the Wash- *11 Blum, v. State ington Court of 17 Appeals Wash.Aрp. Blum, (1977). court, P.2d the replying to a due process attack made on the Washington Law,14 Rape Shield the noted certain difficulty delaying evidentiary rulings until the trial proper, the role of the salutary motion limine:
“In making that determination and in ruling the mo- evidence, tion admit or exclude the are considerations the same as those involved in ruling on the usual motion Id. at in limine.” P.2d 230.15 provides general 14. R.C.W.A. 9.79.150 the exclusion of vic- the past tim’s pre-trial sexual conduct the unless: defendant makes a prosecutor accompanied by stating motion the court and affidavits proof; hearing the offer of presence the court a holds outside the of jury; the the court concludes that the is evidence relevant to the consent, probative by outweighed victim’s its value not substantial prejudicе, and its exclusion result would in the of denial substantial justice to the defendant. Blackburn, People Cal.App.3d 15. We note that in v. Cal.Rptr. (1975), Appeals upheld the California Court of the Rape attack, against California law Shield constitutional albeit not requirement reciprocity: based on the Wardius of 782, adopted companion “Evidence section Code in 1974 as a 1103, imposes procedural the amendment to section a limitation upon admissibility alleged the of of offered sexual conduct of the rape credibility. victim or a related offense to attack her requires testimony preceded by Section 782 that the a written by by accompanied containing motion an offer of the defendant an affidavit proof. If proof the trial finds court that the offer of ‘sufficient,’ hearing presence it must conduct a out of the of the jury alleged questioned ‘regarding allow the victim be the if the proof hearing, offer . . .’ ‘At conclusion the a of the merely quantum released is thus The evidence case, not the whole his defense. defendant’s Com- Second, 3104(b) provide does not Pa.C.S. § might information it to act on monwealth “lead-time” any of disclo- hearing. requirement as a result gain integral was part time to trial an specified prior sure at a laws, for was to allow the purpose their the notice-of-alibi new of time to investigate sufficient amount state a shield feature from the Removing this information. is, to procedure discovery law ensures that while street, it is necessari- fact that degree, one-way limited danger of prejudice obviatеs ly cul-de-sac defendant.16 proposed to be offered defendant finds that evidence
court
regarding
complaining witness is relevant
conduct of the
the sexual
pursuant
to Section 352
[the
.
. . and is not inadmissible
.
stating
Code],
may make
order
what evi-
the court
Evidence
dence
defendant,
may
nature of
be introduced
may
permitted.
questions
offer evidence
The defendant
then
to be
pursuant to
of the court.’
the order
by requiring him to make an offer
contends: ...
Defendant
presents
testimony,
proof
him
he
his
section denies
of
his
before
privilege against
self-incrimination.
Supreme
‘A reasonable
Court has stated]:
the California
[But
Jones,
which, as in
demand for factual information
[Jones
*12
879,
Court,
56,
Cal.Rptr.
Superior
22
372 P.2d
58
919]
Cal.2d
defenses,
only
pertains
particular
to
defense or
and seeks
trial, may
at
intends to introduce
information which defendant
present
and therefore
no substantial hazards
self-incrimination
justify
judge
determining
the
the
in
that under
facts
trial
clearly appears
him
that disclo-
in the case before
it
circumstances
sure cannot
([Prudhomme
possibly
to
defendant.’
tend
incriminate
327, Cal.Rptr.
p.
p.
Superior
85
129 at
320 at
Court
Cal.3d
]
691-92,
678.)”
Cal.Rptr.
p.
Id.
at
Appellant’s argument second directed against statute relates to its alleged of his fifth amend violation ment privilege against In self-incrimination. our resolution of this we question, are guided by the decision of the United Supreme States Court in Florida, Williams v. 399 U.S. 1893, 26 L.Ed.2d (1970). challenge S.Ct. raised in Williams to the Florida premised notice-of-alibi rule was the contention that provision hearing pre-trial resulted in the disclosure of information furthering the conviction, defendant’s thus him to compelling be witness against himself in violation his fifth rights. amendment response, observed, the Court required goes 17. Wardius that the state disclose which *13 very pieces the “refutation of the of evidence which defendant] [the Oregon, 470, 476, disclosed to the State.” Wardius v. 412 U.S. S.Ct. L.Ed.2d 82. us, case the notice-of-alibi rule itself “In the before crucial to call alibi petitioner’s in no affected decision way the to legitimate pressures leading or added to witnesses most, the rule only compelled of action. At that cоurse disclosure, forc- timing to the his petitioner accelerate an date information that the him to at earlier ing divulge trial. beginning planned divulge the at petitioner from .to Fifth Amendment entitles privilege the Nothing to right as a matter constitutional await defendant announcing case before nature end of State’s defense, more than it entitles him await any his deciding before verdict on the State’s case-in-chief jury’s Williams v. or to take the stand himself.” whether not Florida, added).18 1898. supra at (emphasis 90 S.Ct. at Appellant prevails instantly: identical situation An his in a manner presentment to accelerate required merely mandatés; not fifth he is amendment inconsistent sense reveal potentially in the constitutional compelled noted, the court in Williams As informations. damaging of whether faces the dilemma fact defendant never silence or a defense has complete present maintain privilege against invasion of the self-in been held to also, People Id. See 84, 90 at 1897. crimination. S.Ct. Blackburn, 685, 128 (1975) (Cali Cal.Rptr. 56 Cal.App.3d held constitutional in face of similar fornia shield law rape his decision whether attack). He remains unfettered stand; are circumscribed by or take the his actions not to has been made. after that decision only shield law portion on a argument second based Appellant’s seven charge. deliberating After some judge’s the trial to the courtroom with hours, jury question: returned case, to this and if so apply “If circumstances mitigating (N.T. how consider circumstances.” may jury mitigating as responded to the follows: 278). judge query The trial dissent, Douglas pre-triаl pres- argued that Black and Justices degree both form and from those on the defendant differ in sures is, prior operative That to trial the defendant is forced at trial. preclusion when risk at a time he is still his defense or disclose against ignorant strength of the case him. *14 Well, it’s not like military justice “THE COURT: where are mitigating there circumstances which extenuating are found and considered Court. At least the by that’s it used to when I on special be served way Courts-Martial ago. more than 20 years follow you
What must own mind if are your there quote mitigating unquote circumstances here would the as draw proof you measure could from the testimony given the directions the given you Court by law, itself; respect definition of reasonable doubt, the definition the elements of both charges, application of thе definition to the testimony, to presented both as to the definitions as to the elements and reasonable doubt as I you, defined that for but there are no as mitigating circumstances such that are described statute that by would be of the part process reasoning you which would arrive at your verdict.
THE FOREMAN: I think Okay, that an acceptable question, answer to your (N.T. 279-80). our Honor.” Following exchange, this appellant’s requested counsel court “advise the that if Jury they have a reasonable as to doubt the Defendant’s then guilt, he should be given (N.T. 281). benefit that doubt.” The court refused to so, do that it had noting twice instructed the jury on this its initial charge. now
Appellant concedes that was judge correct in that are stating there no specific mitigating circumstances applicable statute, mеntioned argues but that court “should pointed have out clearly and as unmistakeably, he been trial requested had do counsel . . that the jury might find facts ‘mitigating’ against guilt beyond (Brief Appellant 17). reasonable doubt.” We disa- gree.
Although appellant objection couches his in terms “mit- circumstances”, igating it is clear that he take continues to issue with the court’s A exposition “reasonable doubt.” reading original however, charge, convinces us the court covered copiously point two occasions. The re comprehensive a more provided could have
court
large por
without
jury’s question
reiterating
sponse
which
have never
charge,
duty
of the initial
we
tions
Toney,
Commonwealth v.
judge.
on the trial
imposed
Borris,
v.
173,
(1970);
Instantly, perceive of no such abuse. It was proper inform the jury offense, the location of the the appellation “Sons of Satan” is not of such a lurid or morbid character to irretrievably prejudice toward jury appellant, particularly in view of appellant’s emphatic denial of membership.
Judgment of sentence is therefore affirmed.
SPAETH, J., files a concurring opinion.
SPAETH, Judge, cоncurring: I concur in the result reached by on all the majority issues raised on this appeal. wish, however, I to indicate specifically of my agreement limits with the majority’s conclusion that appellant’s right to due process of law was not violated C.P.S.A. 3104 (Supp.1979-80). §
The United States Supreme Court has held that is unfair fundamentally a require defendant [i]t divulge details of his own case while at the same time him subjecting to the hazards of surprise refu- concerning tation of the very pieces of evidence which he disclosed to the State.
Wardius Oregon, 470, U.S. 93 S.Ct. 2213-14, 37 L.Ed.2d 82 (1973).
Such a requirement violates the defendant’s right under the fourteenth amendment to the United States Constitution to v. Conta- Id. See also Commonwealth
due law. process (1974). The con- kos, majority 455 Pa. inap- and Contakos is “any Wardius analogy cludes that howеver, reasoning that the suggest, At I 372. propriate.” is not persuasive. of this conclusion in support defense, which evidence of alibi that majority says Contakos, “is funda- and in Wardius was what was involved sexual evidence of consensual prior from” mentally different me does not seem to so At The difference intercourse. an essen- bear directly upon sorts evidence great. Both offense. tial element of the to be a section 3104 is intended
It is true that Commonwealth; its is to purpose device for the discovery embarrass- trial and needless confusion of issues at avoid (or at best excluding irrelevant ment of the prosecutrix relevant) concerning prosecutrix’s marginally providing true that in that sexual behavior. It is also prior prosecu- wishes to offer evidence a defеndant who file a written may with him trix’s sexual relations past trial, and further proof offer of the time motion and motion, proof, subsequent offer of and that providing and only admissibility address “the relevance hearing shall evidence,” 3104 mini- section proposed of the [defendant’s] will unfair gain risk that the Commonwealth mizes the Nevertheless, defendant’s case. it pre-trial discovery might where the Commonwealth suppose case easy under section 3104 into evidentiary proceedings convert the which case in Suppose, example, device. discovery he a friend offer of proof the defendant makes an inter- had consensual sexual prosecutrix will that the testify the day in the defendant’s home course with defendant further, the friend knows alleged rape, before the held, A hearing he witnessed the act. this because *17 relevant proposed the court rules that the at the prosecutrix’s consent admissible on the issue held, Then, being while trial rape. time of the alleged evidence to investigation an for Commonwealth conducts the investí- Through proposed testimony. rebut the friend’s gation, Commonwealth discovers that the friend’s moth- willing er is that her son could testify not have witnessed sexual prosecutrix relations between the and the defendant day because her son was her in question city with a hundred miles from the away defendant’s home. Were the Commonwealth to introduce the mother’s testimony without the defendant notice it giving timely intended so, I question to do should whether the Commonwealth’s exploitation of the under procedures section 3104 was not Contakos, forbidden Wardius and for the defendant have would been “to required divulge' the details of his own case while at same time [being subjected] to hazards of surprise concerning refutation of the of evi- very pieces dence which he disclosed to the State.” Wardius v. Oregon, supra, at U.S. S.Ct. at 2213.
I am sure how I should decide a case such as the one I submit, however, have I just supposed. that we should not does, do as the majority Instead, which is to decide it now. arises, we should decide each case as it and on its particular facts, case, some contrary to the majority, analogy to Wardius and Contakos may be most appropriate.
I concur in the result reached because majority when the particular facts of this are examined, case it will be seen that apрellant was not “to required divulge the details his own case while at the same time [being subjected] to the hazards . .” surprise . . Immedi- ately trial, appellant before filed a written motion and offer of proof that prior prosecutrix had had sexual intercourse him. An in camera hearing was held at which testified appellant concerning the incident. The lower court ruled that testimony was relevant and admissible, trial, appellant repeated the testimony. attorney district appellant cross-examined con- briefly cerning prior date time intercourse and possible corroborating rebuttal, witnesses. the Common- wealth prosecutrix, recalled the who denied having inter- *18 Thus, the Com prior appellant rape.*
course testimony prior impeachment appellant’s monwealth’s entirely took an with the prosecutrix intercourse sexual on First, attorney explored the district course. predictable of appellant’s testimony. the weaknesses cross-examination rebuttal, incident. Second, denied the the prosecutrix, No witnesses. surprise cross-examination. unexpected No the district cross-exami attorney’s Appellant complains rebuttal and the sharper, prosecutrix’s have been may nation foreknowl Commonwealth’s because prepared, better so, Assuming this was testimony. his proposed edge would not, think, advantage I the kind of one did confer it unfair.” “fundamentally denominate Pennsylvania COMMONWEALTH HOYLE, Appellant. Alfred Superior Pennsylvania. Court
Argued July 1979. Dec. Filed * reproduced prosecutrix appears was the record that It from only called on rebuttal. witness