Victim’s Past Sexual Conduct • Evidence

Commonwealth v. Dougalewicz, PICS Case No. 14-0155 (C.P. Lawrence Jan. 14, 2014) Cox, J. (17 pages).

Court did not err in limiting testimony of child victim regarding sexual intercourse with a man other than defendant to be used only for purposes of credibility. Post sentence motion denied.

Defendant coached a school softball team, and cultivated a relationship with a 13-year-old player. Over time, their relationship intensified, and ultimately sexual contact occurred. The young girl, a seemingly willing participant, protected defendant when he was accused of committing sexual crimes against her. Initially, victim informed several people that she did not have sexual contact with the defendant, but instead had sexual intercourse with an unnamed black male. (She later recanted, stating that she made up the story to protect defendant).

At trial, defendant was permitted to elicit testimony that victim informed other people that she had sex with an unnamed black male, and victim admitted to informing her friends that she said she had sex with a black male only to protect defendant. However, after defense counsel asked victim whether she had told defendant about the other man and victim denied having done so, the court limited the testimony regarding a conversation between defendant and victim about her alleged sexual encounter to merely permit it to be used to weigh against the credibility of the victim’s testimony. The court provided a cautionary instruction to that effect.

In a post-sentence motion, defendant argued that it was improper for the court to place any limitation on that testimony or to provide the cautionary instruction.

The court denied the motion. The trial court properly limited the testimony to credibility matters. Under 18 Pa.C.S. §3104(a) (relating victim’s past sexual conduct), testimony that victim had sex with a black male on a specific day cannot be used as substantive evidence to prove that the victim did not have sexual contact with defendant. That allegation is not determinative as to whether defendant and victim had sexual contact, regardless of the veracity of that statement, as victim’s past sexual conduct is irrelevant to her conduct with defendant on the day in question.