Appellate courts rarely grant new trials in criminal cases, but that is what Fairlie & Lippy won for a client in Commonwealth of Pennsylvania v. KSF, 3211 EDA 2013 (Pa.
Super. 2014). The issue in the case was whether the trial court erred by not permitting defense counsel to cross-examine the victim in a child rape case about a post she made on Facebook. Her statement on Facebook was that she “had never had sex in her life.” It directly contradicted her trial testimony that KSF forced her to have sexual intercourse approximately 50 times.
The trial court denied the motion to admit this statement based on Pennsylvania’s Rape Shield Law, which protects victims of rape and sex crimes from abusive inquiries about their past sexual conduct. The defense repeatedly argued for admission of the statement to show that the alleged victim was not credible. The Pennsylvania Superior Court held that failure to admit the statement into evidence was an abuse of discretion which deprived KSF of a fair trial, and ordered a new trial. The Commonwealth has 30 days to determine if it will request an appeal to the Pennsylvania Supreme Court.