Commonwealth v. Berkowitz

415 Pa. Super. 505, 609 A.2d 1338 (1992)



An appellate court remains mindful that credibility determinations were a matter solely for the fact finder below and examines the evidence in the light most favorable to the prevailing party drawing all reasonable inferences therefrom, affirming if a jury could have come to the conclusion. 


Defendant was convicted of rape and indecent assault and sentenced to serve a term of imprisonment of one to four years on the rape and a concurrent term of six to twelve months for indecent assault.  He appealed his conviction, claiming that the evidence was insufficient to prove the degree of physical force necessary to complete the act of rape in Pennsylvania, and that the trial court improperly excluded evidence that tend to prove that the victim denied consent to avoid the wrath of a jealous boyfriend.


Did the trial court properly apply the Rape Shield Law and exclude evidence that tended to show that the charges may have been fabricated?




The court reversed defendant's conviction for rape because it found that the incident between defendant and victim did not meet the statutory definition of rape, 18 Pa. Cons. Stat. Ann. § 3121. Specifically, the court found that even in the light most favorable to the commonwealth, the victim's testimony as to the physical aspects of the encounter could not serve as a basis to prove "forcible compulsion." No evidence was adduced which established that mental coercion, or a threat, or force inherently inconsistent with consensual intercourse was used to complete the act of intercourse. The court further found that a new trial was warranted on the indecent assault charge because the trial court erroneously applied the Rape Shield Law to exclude evidence which tended to show that the charges may have been fabricated, thus the evidence should have been deemed relevant.  Where the proffered evidence excluded by the Rape Shield law is relevant, noncumulative, and more probative of the defense than prejudicial, it must be admitted. Such is the case at bar. Defendant’s defense theory was essentially that the victim consented to the sex with him but had decided after the incident that such consent had been unwise because it may have jeopardized her relationship with her boyfriend.

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