Admissibility of prior convictions of prostitution in sexual assault cases where consent is of issue

Commonwealth v. Rogers, 2019 WL 4686960 (Pa. Super. 2019) (unreported), allocatur granted Feb. 12, 2020, appeal docket 8 EAP 2020

Eric Rogers, a serial rapist, was convicted and sentenced on several sexual assault and related claims for attacking, robbing, and sexually assaulting five females over a span of several months. Although DNA proof and expert testimony bolstered the victims’ accusations, Rogers admitted to having sexual relations with the women but claimed that he did not force himself upon them because they solicited him, which he tried to support by introducing evidence of their prior convictions for prostitution.

The Superior Court found that the Court’s precedents bind its decision to deny Rogers’ motion in admitting the women’s prior convictions for prostitution and that Rogers’ waived his weight-of-the-evidence claim to overturn his convictions because he failed to adequately preserve the issue in his 1925(b) statement. Regarding the admission of the women’s prior prostitution convictions, the Superior Court reasoned:

Here, Rogers make[s] no assertion that a higher court has issued an intervening decision that calls into question the validity of [Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003), and Commonwealth v. Dear, 492 A.2d 714 (Super. 1985), which hold that prostitution convictions were “not probative where…consent is at issue in a rape prosecution”]. Accordingly, those decisions are as binding upon this panel as they were upon the trial court, which correctly applied them. The trial court did not abuse its desertion by properly applying the precedents of this Court to deny Rogers’ motion to admit the women’s prior convictions for prostitution.

Slip Op. at 8.

For the issue of overturning Rogers’ conviction as being against the weight-of-the-evidence, the Superior Court reasoned Rogers did not preserve the issue, stating:

Here, Rogers barely asserted any reasons in his 1925(b) statement for why the verdicts were against the weight of the evidence. He attacked the credibility of three witnesses but failed to explain what evidence contradicted the convictions so as to shock one’s sense of justice. More importantly, Rogers did not indicate in his 1925(b) statement which of the verdicts he believed were against the weight of the evidence. Thus, he left the trial court to guess at which verdicts he desired to challenge on appeal and on what basis. By vaguely raising a weight issue in the 1925(b) statement, Rogers rendered it “the functional equivalent of no concise statement at all.” [Citation omitted].

Slip Op. at 10-11.

The Supreme Court will determine:

(1) Should not this Court overrule or limit Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003), and Commonwealth v. Dear, 492 A.2d 714 (Super. 1985) the cases relied upon by the Superior Court, that deal with the Rape Shield Law and that prevented petitioner from exercising his rights to cross-examination and to present a defense pursuant to the United States and Pennsylvania Constitutions in a case involving consensual prostitutional sex?

(2) Did not the lower court err when it denied petitioner’s motion to allow introduction of the complainants’ arrests and convictions for prostitution as Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003), and Commonwealth v. Dear are distinguishable, where the defense was consensual sex pursuant to prostitution transactions inasmuch as the exclusion of such evidence violated the [petitioner’s] rights to cross examination and to present a defense pursuant to the United States and Pennsylvania Constitutions?

(3) Did not the panel err in concluding that petitioner waived his challenge to the weight of the evidence claim because his 1925(b) statement was too vague to allow the trial court to identify the issues raised on appeal, where a detailed post-sentence motion was litigated and the trial court addressed the issue in its opinion?

For more information, contact Kevin McKeon or Dennis Whitaker.