Commonwealth v. Weber

¶1dissenting.

¶2I respectfully dissent from the ruling of my colleagues, which reverses appellant’s conviction and grants a new trial.

¶3I agree completely that evidence of an abortion is necessarily evidence of prior sexual activity, so as to bring it within the scope of the Rape Shield Law. Abortion does not arise without sexual activity, and if the latter is inadmissible, to treat evidence of the former differently would defeat the law’s intent. Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). Thus, the evidence of abortion should have been excluded, unless it had probative value outweighing its inherent prejudice. See, e.g., Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985).

¶4In this case, the defense posits a theory that the victim fabricated the charges, motivated by fear of being beaten by appellant should he learn she had an abortion. Evidence of such a motive to falsify would be probative. Commonwealth v. Reed, 435 Pa.Super. 36, 644 A.2d 1223 (1994). Therefore, to determine the admissibility of evidence of the abortion, the trial court must weigh the probative value of the otherwise excludable testimony against the prejudice toward the victim that admission would cause.

¶5My colleagues determine that any prejudice was outweighed by the probative value, and that the evidence should have been admitted, thus finding error. I do not find that the trial court was in error in excluding the evidence, as I believe appellant himself directly negated the theory that made the abortion testimony potentially relevant in the first place.

¶6This issue did not arise suddenly at trial. It was the subject of a pretrial proceeding and ruling, whereby the court stated it would consider the evidence of abortion only if there was independent evidence of the victim’s fear that physical abuse would ensue. That is, the relevance of the abortion is nonexis*53tent unless the fear of a retaliatory beating is otherwise established. Without that fear, there is no probity in the proffered evidence.

¶7The trial judge ruled that if this theory (fear of beating from her father) was not established by independent evidence, rather than merely alleging the theory, the manifestly prejudicial testimony of abortion would not be allowed. To rule otherwise would allow any self-serving theory from a defendant to bootstrap all sorts of slander into evidence without corroboration or any hint of trustworthiness of the prejudicial allegations.

¶8Had appellant admitted thrashing his daughter over the years, his “theory” might hold water; the other evidence of bruising might be corroborative enough to allow admission of the evidence he sought to introduce. However, he denied such abuse at trial; appellant took the stand and personally repudiated any physical abuse that would cause his daughter to fear a beating. When he personally disavowed the factual basis of his theory, he took any wind of probative value out of the sails of admissibility.

¶9The law clearly allows one to present multiple and inconsistent defenses, but the introduction of highly prejudicial and otherwise inadmissible evidence should not be countenanced when the defense theory of relevance is specifically refuted by the proponent himself. See, e.g., Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991) (while a defendant has no burden to prove claim of self-defense, he may not testify inconsistently with, or negate an element of, the defense and still avail himself of it).

¶10As such, I would affirm the trial court’s decision that appellant not only failed to make out the victim’s fear of a beating, he negated its very existence under oath and nullified any probative value in the evidence of abortion. That this evidence came in at all through cross-examination of the victim is more than the defense was entitled to.

¶11My colleagues find the court in error, but find that error to be harmless (a question I need not reach), as the evidence came in despite the ruling, under cross-examination of the *54victim. They reverse because of the trial court’s purported preclusion of closing argument on the issue. Appellant states his issue thusly;

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING DEFENDANT’S REQUEST TO INTRODUCE TESTIMONY CONCERNING A FABRICATION DEFENSE THROUGH A MISAPPLICATION OF THE RAPE SHIELD LAW?

¶12This issue has not been raised before us.1 Appellant has not heretofore complained of preclusion of closing argument, and if he wished us to consider that ruling, he should have raised it timely in his Statement of Matters Complained of on Appeal. Thus he has chosen not to appeal that issue, which is therefore waived. The Commonwealth has not been alerted to address the issue, nor has the trial court had the opportunity to provide its insight into this. As we have answered the issue raised, I would not endeavor to consider matters not complained of.