A blog of the Philadelphia Bar Association’s Criminal Justice Section

seal_colorBy Burt Rose

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A panel of the Superior Court of Pennsylvania has decided the case of COMMONWEALTH OF PENNSYLVANIA v. K.S.F., Appellant, 3211 EDA 2013, 2014 WL 5018092, 2014 PA Super 225 (Oct. 8, 2014), an appeal from the Court of Common Pleas of Montgomery County, Criminal Division, CP–46–CR–0003335–2010 (Judge Branca). The case was before JudgesPANELLA, LAZARUS and JENKINS. Judge Lazarus wrote the Opinion with no dissent.

A jury convicted K.S.F. of multiple sexual crimes against his stepdaughter, including four counts of involuntary deviate sexual intercourse with a child. Prior to trial, K.S.F. filed a motion to access the stepdaughter’s two profiles on the social networking website Facebook. K.S.F. alleged one of Stepdaughter’s profiles contained impeachable material in which the stepdaughter described herself as a “virgin.” At that time, K.S.F. could not access the stepdaughter’s postings due to privacy settings. The trial court ruled the evidence inadmissible, stating that evidence that the stepdaughter posted she was a “virgin,” fell within the ambit of the Rape Shield Law and that a teenage girl posting that she was a “virgin,” despite being sexually abused by her stepfather, was a self-characterization that did not have significant enough probative value as to the credibility of her claimed abuse by K.S.F. to overcome the Rape Shield Law barrier under 18 Pa.C.S. § 3104. At a subsequent hearing, the stepdaughter testified that when she wrote on Facebook that she had never had sex before, she meant she had never had consensual sex.

Judge Lazarus wrote that evidence that tends to impeach a witness’ credibility is not necessarily inadmissible because of the Rape Shield Law. When determining the admissibility of evidence that the Rape Shield Law may bar, trial courts hold anin camera hearing and conduct a balancing test consisting of the following factors: (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility.

The trial court failed to address the fact that were K.S.F. able to convince the jury of the stepdaughter’s lack of credibility, the Commonwealth’s case would be seriously undermined. Accordingly, the probative value of a prior inconsistent statement in which the stepdaughter purports to deny prior sexual conduct was critical.

Furthermore, a statement in which a victim claims to be a virgin cannot reasonably be understood to prejudice her by smearing her reputation for virtue and chastity, nor is it inflammatory. The Rape Shield Law was passed to prevent a specific class of attacks against the character of victims in rape prosecutions. It is not a bar against the admission of relevant evidence, the disclosure of which invades a victim’s privacy, provided it does not involve “past sexual conduct.”

The stepdaughter’s statement that she was a virgin could be interpreted to mean that she had never had consensual sex. This was, in fact, the way the stepdaughter explained the Facebook posting at the hearing. However, the Facebook posting could also be interpreted to mean that she had never had any sex, including with K.S.F. Whether the stepdaughter’s narrative was to be believed was a credibility determination that should properly have been put before a jury.

Since the trial court abused its discretion in its application of the test, the Court reversed the judgment of sentence and remanded for a new trial.

Elizabeth Louise Lippy of Fairlie & Lippy, PC represented the Appellant.


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