*3 MONTEMURO, CERCONE, Before HOFFMAN and JJ.
HOFFMAN, Judge: This appeal judgment is from the for rape, sentence intercourse, involuntary assault, deviate sexual indecent recklessly endangering person, restraint, another unlawful and simple Appellant assault. raises a number of issues the trial concerning limiting court’s his cross-examination of the complainant. Specifically, appellant contends that in refusing (1) court erred him allow question complainant concerning prior conduct; (2) her ques- sexual tion the complainant regard (a) to the fact that she was (b) on probation parole and and charges there were other (3) pending against her; impeach the complainant’s prior on credibility based her for conviction criminal tres- pass. follow, For the reasons that we vacate the judgment sentence remand a new 24,
On August 1987, jury appellant guilty found charges. above-referenced Post verdict motions time- were ly denied, filed and, on February appellant was sentenced five-to-fifteen-year to concurrent impris- terms of rape onment for and involuntary deviate sexual intercourse. The court determined that the remaining charges merged for sentencing purposes. Appellant’s motion to modify *4 sentence and timely denied, filed and this fol- appeal lowed.
Appellant error, asserts nine claims of of but because our disposition of appeal, this we address only his claims regarding the court’s restricting his cross-examination of the complainant.1 Appellant argues first that the trial Appellant’s (1) 1. other claims are that the court trial erred in admit car; ting (2) admitting into evidence a seized towel from his into photographs complainant’s injuries; (3) evidence denying of the facial his motion a spoke for mistrial after a Commonwealth witness with recess; jurors (4) during denying challenge a his to the constitutionali
566 the com- refusing erred in to him to question court allow prior Appellant her sexual conduct. concerning plainant see Law, Shield Pa.C. Pennsylvania’s Rape claims that not the admission of this evidence does bar S.A. § complainant’s to attack the was offered not because signs the of of explain presence objective to chastity but record carefully reviewing After the sexual intercourse.2 brief, conclude that the trial court has appellant’s we in its disposed opinion. of this contention Accord- properly of this on the basis of disposition affirm the issue ingly, we opinion. that erred re- argues that the court
Appellant next
regard
question
complainant
to
him to
the
fusing
allow
(2)
(1)
parole and
probation
to the fact that
she was on
her at
time of
charges pending against
were
there
admissible to
maintains
that
this evidence was
Appellant
In
potential
bias.
complainant’s
show
Evans,
(1986),
Supreme
whenever a outstanding charges prosecution because of criminal against criminal any disposition or of non-final because bias, that jurisdiction, possible him within the same if fairness, made to the Even jury. must be known present made no either on the prosecutor promises, has matters, or on criminal the witness pending case other prosecutor from the if may hope for favorable treatment helpful in way the witness testifies a is presently exists, And if prosecution. possibility jury it. should about know Law; (5) Rape challenge
ty denying his Shield constitu (concerning complain tionality testimony Pa.C.S.A. § ants); (6) imposing an sentence. excessive trial, that, prior We note filed written motion and 2. evidence, proof concerning required Rape this as offer Law. § Shield See 18 Pa.C.S.A.
567 The jury may choose to believe witness even after it learns promises of actual or possible made promises leniency future, be made in the but the defen- dant, under right guaranteed in the Pennsylvania Constitution to against him, confront witnesses must have the at opportunity least raise some in doubt mind the jury as to whether the prosecution witness biased. It is not for the court to determine whether the cross-examination for bias would affect the deter- jury’s mination of the case.
Id., 511
224-25,
Pa. at
(footnote
After carefully reviewing record, agree we that the evidence that he sought to introduce would have supported an inference complainant First, was biased. that, we note as a condition of the complainant’s probation parole, she required refrain from using trial, alcohol and drugs. however, At complainant admitted that she had consumed twelve or thirteen beers and had taken pills on the night of the alleged rape. August 21, 1987, N.T. at 71-75. The complainant’s actions in were direct violation of her proba tion parole. facts, Based on these the complainant may have testified for the the hope that she could avoid an action to probation revoke her parole. or Similarly, charges fact that were pending against the complainant would support an inference that she was bi ased. The complainant had been arrested and charged with disorderly conduct one week appellant’s before aAs arrest, result of that she charged was also with violating her probation parole. facts, Based on these the com plainant may have testified hope she could curry *6 regard to with both
favor Commonwealth In charge. violation charge, probation and the pending was relevant proffered evidence summary, because biased, we complainant may that the have been establishing in allow refusing court erred must that the trial conclude Evans, v. Com- supra; the evidence. See Commonwealth su- Cauto, Gay, v. supra; v. Commonwealth monwealth pra. in erred argues also that the trial court
Appellant credibili impeach complainant’s him to refusing to allow trespass. for criminal prior on her conviction ty based this was admissible Appellant maintains that conviction deceit. involves an element of trespass criminal because on agree. may impeached It is settled that a witness be We convictions, as as the past long convictions basis (crimen or statement dishonesty crimes false involve day or the last of confine and the date of conviction falsi), date. See Common years ten ment is within Randall, wealth 410, 412, 1326, v. A.2d 1329 Pa. 528 515 Yost, 327, also Commonwealth v. see (1987); 478 Pa. 334-35, 956, (1978).3 A.2d 386 960 oc trespass conviction complainant’s
The
criminal
12, 1986;
must
January
thus,
question
curred
we
on
in the nature of crimen
offense
determine is whether
this
is
Pennsylvania
our
has
no
Although
revealed
research
falsi.
issue,4
in
difficulty
have no
case which has decided this
we
trespass
The
question.
crime
criminal
resolving
remaining
place,
or
while
entering
either
involves
do so. See
one is
licensed or
knowing
privileged
not
old,
years
only
be
If
than ten
admitted
the conviction more
substantially
the value of the evidence
if the court determines
Randall, supra.
v.
effect. Commonwealth
outweighs
prejudicial
its
Cobb,
that,
dissenting opinion
4. We note
in his
91,
(1978),
Pa.Super.
Judge VAN
stated
258
5. Section 3503 in relevant trespass § 3503. Criminal (a) Buildings occupied structures.— if, (1) person knowing A commits an offense that he is not so, privileged licensed or to do he: enters, (i) gains entry by subterfuge surreptitiously or remains in any building occupied separately or structure or secured or occu- thereof; pied portion or (ii) any building occupied separately breaks into or or structure occupied portion secured or thereof. to which notice come to the attention of intruders. (b) licensed (iii) fencing (ii) posting (1) (i) Defiant actual communication A person or privileged trespasser.— in a manner or other enclosure against trespass commits an offense [******] to do intruders; prescribed by so, to the he enters or remains in is actor; given by: manifestly designed or if, law or or knowing reasonably likely that he is not any place to exclude as Id. [******] provides part:
6. Section in 3502 relevant Burglary § 3502. (a) person guilty burglary Offense defined. —A of if he enters a structure, building occupied separately occupied or or secured or thereof, therein, portion with intent to commit a crime unless the premises open public at are the time to the or the actor is licensed privileged or to enter. Id. [******] limiting errors the court’s note that
Finally, we clearly complainant cross-examination appellant’s the sole Common complainant The was not harmless. were circumstances of as to the testify could who witness wealth testimony was complainant’s rape. Because alleged act, accuracy appellant’s proof link in the crucial critical elements her testimony were truthfulness circumstances, we can In these case. Commonwealth’s to disallow evidence harmless was not conclude biased, she or that complainant that the was suggesting Gay, v. See Commonwealth not a credible witness.7 Com see also 191; 344-45, A.2d at at Pa.Super. Cauto, Evans, Commonwealth v. supra; monwealth for new this case must remanded Accordingly, be supra. trial. reasons, judgment we vacate foregoing
For remand for a new senténce relinquished. Jurisdiction and remanded. Vacated opinion in the result of the CERCONE, J., concurs HOFFMAN, J. dissenting
MONTEMURO, J., opinion. files a MONTEMURO, dissenting: Judge, *8 the by result reached in the ultimate I concur Although trial, I dissent i.e., of a new case, grant the in this majority issue. of the second determination regard to the with majority cited the legal principles I the agree with cross-examining a right, the when concerning appellant’s However, I witness, to evidence of admit bias. prosecution that the evidence the conclusion disagree majority’s the inference of supports admit seeks to the particularly important to evidence would be We note also that this independent evidence had introduced appellant’s defense because he credibility. example, complainant’s For question the that called into complainant the appellant and the on both the barmaid who served that, leaving immediately the bar with after night question testified in whispered in complainant into the bar and appellant, "came back the wrong, going anything she was to holler my went ear that if 24, 1987, August at 6. rape." N.T. majority’s position on the of the It is part bias victim. the that the victim have testified for the Commonwealth in avoid hope the that she could an action revoke her If this were the classic situation in probation/parole.1 bias individual, facing prosecution, which an who is criminal defendant, a criminal testify against offers whom the in prosecuting gain Commonwealth is order to favorable treatment, hopes receiving treatment or in the favorable finding I no an inference of would have trouble bias. However, the instant case clearly distinguish the facts of First, distinct ways. from the classic bias situation two is prosecution the witness the instant case the victim. witness, a third whose sole reason party prosecution Unlike testifying is the lure of favorable treatment from the charges, on the is an inter- pending victim of the crime. party. target ested She was the Further- more, preclude she has the to initiate or power charges being brought against appellant. from the This is an impor- If complainant tant difference. the wanted insure that revoked, her not all probation/parole would be she had to report do was not the The sole reason the rape. violation If reported rape. surfaces is because she anything, of the complainant’s probation/parole evidence violation strengthens complainant’s Here is a woman testimony. immediately being raped reports though who after it even probation/parole she knows she has violated her I exposed rape reported. violation will be once the is fail to see how the violation of her probation/parole creates In order bring bias. this case within the outer reaches of situation, a true bias the facts to be altered so would have as to reflect a after report rape probation/parole prosecu- violation discovered. Unlike classic biased witness, tion the victim under the unaltered facts of the reports instant case receives no benefit at the time she crime, for her misconduct has yet to be discovered. This complainant facing 1. The record is unclear whether revoca- event, parole, probation, any of her tion or both. In the basis of the *9 drinking night revocation was that she had on the fact been the of the rape. I to the wish to make. Unlike the brings point me second witness, illegal whose conduct has party prosecution third in his the victim’s conduct the him placed predicament, is a technical viola- instant case technical violation. Such handled the Board of Parole. by tions are Probation by such matters are dealt with the Board Probation Since Parole, position the is not in a to Commonwealth Therefore, the leniency. report the motivation promise Commonwealth, police testify to the and to the rape bias, the does not necessary support inference which hope the treatment will be extend- arise from that favorable Office, the Attorney’s the District District by ed because no the Office has ultimate control over decisions Attorney’s reasons, Board. these I Probation and Parole For of the the actions in the denying affirm trial court’s admis- would of this evidence. sion
Likewise, that position I the the disagree majority’s with in the hope have for the testified Commonwealth victim the with she could favor with curry The charge. the conduct flaw pending disorderly regard the events are supposition apparent in this when becomes rape in there time frame. The occurred on proper placed the immediately 1987 and victim. reported June later, the against testified Two weeks the victim trial, A week the preliminary hearing. at his before In that charged disorderly conduct. victim was not differ from substantially did testimony victim’s hearing, she I fail to see gave preliminary at the charge For disorderly surely conduct creates bias. how late in time to disorderly charge conduct comes too hearing preliminary testimony. influence the victim’s Therefore, I the action trial court would affirm parole this evidence. Neither the admission of denying evidence, evidence, disorderly sup- conduct nor violation grant inference of such as ports an bias warrant new reasons,
For these I would vacate the sentence re- I However, unlike would majority, mand for retrial. *10 hold that the probation evidence victim’s violation charge conduct disorderly is inadmissible.
Argued April 1989.
Filed June