NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                v.                          :
                                            :
                                            :
    TAYLOR ALFRED ROSSI                     :
                                            :
                      Appellant             :   No. 1979 EDA 2018

          Appeal from the Judgment of Sentence Entered June 20, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0003595-2017


BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

CONCURRING MEMORANDUM BY PELLEGRINI, J.:

                                                    FILED OCTOBER 04, 2019

        While I join with the majority in finding that the trial court properly

disallowed evidence of the victim’s sexual conduct two hours before the

offense, I disagree that evidence fell within the ambit of the Rape Shield Law.

Instead, I would disallow that evidence in that it lacks probative value as to

the charges of which the Appellant was convicted: rape of an unconscious

person, sexual assault and indecent assault.

        Appellant’s proffered evidence was that the victim and his girlfriend were

kissing and fondling earlier in the evening at the party, and that when he tried

to join them, his girlfriend pushed him away, not the victim. He argues that

the trial court erred in excluding that evidence because it goes to his defense


*   Retired Senior Judge assigned to the Superior Court.
that the victim later consented to having sex with him, and that this incident

goes to whether the victim was willing to engage in sexual conduct with him.

      The majority finds that this evidence is properly barred under the Rape

Shield Law, 18 Pa.C.S. § 3104, because it was past sexual conduct that law

excludes. The Rape Shield Law provides, in pertinent part:

      Evidence of specific instances of the alleged victim’s past sexual
      conduct, opinion evidence of the alleged victim’s past sexual
      conduct, and reputation evidence of the alleged victim’s past
      sexual conduct shall not be admissible in prosecutions under this
      chapter except evidence of the alleged victim’s past sexual
      conduct with the defendant where consent of the alleged victim is
      at issue and such evidence is otherwise admissible pursuant to the
      rules of evidence.

      I disagree with the majority that this evidence is barred by the Rape

Shield Law because what is sought to be introduced is evidence not of the

victim’s “past sexual conduct” but sexual conduct that was closely related in

time to the incident. Such evidence is also akin to res gestae or “history of

the case” evidence than can be admitted because it can furnish the context or

complete     story   of   the   events   surrounding   a   crime.   See,   e.g.,

Commonwealth v. Dillon, 925 A.2d 131, 137 (Pa. 2007).

      Nevertheless, even though I would hold the proffered evidence was not

automatically excluded by the Rape Shield Law, Rule of Evidence 403 would

still govern its admission. That Rule allows the exclusion of otherwise relevant

evidence if its probative value is outweighed by, among other things, unfair

prejudice.   Pa.R.E. 403. The comment to Rule 403 explains that “[u]nfair

prejudice means a tendency to suggest decision on an improper basis or to
divert the jury’s attention away from its duty of weighing the evidence

impartially.”

       In this case, Appellant would need to demonstrate a legitimate purpose

for the evidence’s admission that was not outweighed by its danger of being

misused by the jury. However, he did not meet that burden. As the trial court

explained, the proffered evidence had little to any probative value in

establishing either (1) that the victim consented to sex with Appellant or (2)

that she had a motive to fabricate or lie about being raped while she was

unconscious. When weighed against the remaining danger that the jury would

misuse the evidence as improper character evidence, then the trial court was

clearly within its discretion in disallowing the evidence from being introduced

at trial.

       Accordingly, I would also affirm the judgment of sentence.
