For the Defense - Vol. 8, Issue 3 - 65

Second, the proposed instruction adds inflammatory language
that is less accurate than the current instruction. Specifically,
the suggested amendment trades " victim " for minor and the
nebulous term " sexual molestation " replaces offenses the
Commonwealth must prove beyond a reasonable doubt the
defendant committed or aided another in committing. PACDL
suggested that the existing language is impartial and encourages
jurors to exercise reasoned judgment based on facts.
PACDL's comments noted that adding to the jury instruction
the " common sense of the community, as well as the sense
of decency, propriety and the morality which most people
entertain is sufficient to determine whether the defendant's
conduct tended to corrupt the morals of a minor " conflates the
law with an antiquated notion of its basis.
Moreover, the language has been reduced to rote recitation
without modern application. In Commonwealth v. Howard,2
a majority of the Pennsylvania Supreme Court held the
Commonwealth's evidence was insufficient to establish a
mother who rode in a rideshare with an unrestrained toddler
had committed child endangerment. The court divided over
application of the Randall language. Writing separately in
concurrence, Justice Wecht stated in part:
I stress that the OAJC cannot be faulted for reciting
this windy language, which it did not invent. But I
believe we should no longer perpetuate such cant.
Slogans like these are unfortunate vestiges of this
Court's jurisprudential past and should be abandoned.
They invite lawyers to seek, and judges to make, policy
and morality pontifications defining criminality in
circumstances where the General Assembly already has
exercised its sole prerogative to prescribe the offense
by statute. Amorphous standards that call upon judges
to interpret statutes by divining and then applying
the " sense of decency, propriety, and morality which
most people entertain " or by mystically conjuring " the
common sense of the community " cannot be applied in
any principled way. 257 A.3d 1217, 1233.3
Proposed Amendment of Jury Instructions on What
" Unconscious " Means
Additionally, the proposal of the victim advocate groups
suggested amending " unconscious " in Pa. SSJI (Crim) § 15.3121B
(Rape of Unconscious, Unaware, or Mentally Disabled Person);
Pa. SSJI (Crim) § 15.3123B (Involuntary Deviate Sexual Intercourse
with an Unconscious, Unaware, or Mentally Disabled Person); Pa.
SSJI (Crim) § 15.3125B (Aggravated Indecent Assault--Forcible
Compulsion and Victim's Mental State); and Pa. SSJI (Crim) §
15.3126B (Indecent Assault--Forcible Compulsion; Victim Mental
State) to comply with the case of Commonwealth v. Erney.4
PACDL argued that the current suggested standard jury
instruction on the meaning of " unconscious " should remain as
currently written. It noted that the legislative intent of rape of
an unconscious person, as articulated by Erney, is: " to punish
sexual intercourse performed upon an individual physically or
mentally incapable of consent. " 5
Such intent is already included
in the suggested standard instruction, under " c " . The proposed
jury instruction under (b)(i) conflates (c) with contextualized
" unconsciousness " which is confusing and improperly taking the
place of the fact finder. For those reasons, PACDL suggested that
it should respectfully consider rejecting this added language
from Erney, and the suggested use of Erney.
Proposed Adoption of Jury Instruction on Expert
Testimony and Victim Behavior
Victim advocates also supported changes in expert testimony.
They noted that while Pennsylvania law has permitted expert
testimony in sexual offenses since 2012 (42 Pa.C.S. § 5920),
this statutory provision is not yet reflected in the Pennsylvania
Suggested Standard Criminal Jury Instructions. PACDL suggested
that the proposed recommendations do not emphasize enough
the role of an expert, some of the proposed language just
reinforces, bolsters, and restates the alleged victim's testimony
which may confuse the jury into believing whatever the " expert "
states regarding " victim " behavior generally. PACDL opposed
this change.
Proposed Adoption of Jury Instruction on Tender
Years Exception to Hearsay Rule
Similarly, a proposal was offered to change language regarding
the Tender Years Exception. Victim advocates stated that the
" tender years " hearsay exception has been part of Pennsylvania
law since 1989 (42 Pa. C.S.A. § 5985.1), but this statutory
provision is not yet reflected in the Pennsylvania Suggested
Standard Criminal Jury Instructions. They thus recommended
that a new suggested standard criminal jury instruction on this
issue be added to Chapter IV (Witnesses and Testimony) as Pa.
SSJI (Crim) § 4.19.
PACDL has concerns about the proposed language regarding
the Tender Years Exception to the hearsay rule. In particular,
the proposed suggested standard criminal jury language did
not sufficiently describe hearsay, its inherent unreliability, and
that it is generally not allowed to be considered by a fact finder.
PACDL also objected to the description of Tender Years hearsay
as applying only to " young children " , when, in fact, the current
law is that declarant merely be under the age of sixteen (16) and
the term " young children " is also inherently prejudicial.
The proposed suggested standard criminal jury instruction
also states that the jury may " use those out-of-court statements
made by the [alleged victim] to prove some or all of the elements
of the offenses. " PACDL objected to this change as it is simply
not what the law says, and the instruction could merely state
that the jury may " consider the alleged out-of-court statement
made by [alleged victim] to [witness] as evidence during the
jury's deliberations. "
Proposed Elimination of Jury Instruction on Prompt
Complaint in Sexual Offenses
Finally, the proposal submitted by victim advocate groups
recommended that Pa. SSJI (Crim) § 4.13A (Failure to Make a
Prompt Complaint in Certain Sexual Offenses) be eliminated
entirely from the Pennsylvania Suggested Standard Criminal
Jury Instructions. In their rationale, they stated,
This instruction tells jurors that a victim's failure to
make a prompt complaint following a sexual offense
'may remove...the assurance of reliability accompanying
the prompt complaint or outcry that the victim of a
crime such as this would ordinarily be expected to
make.' This instruction should be eliminated because
it rests on an incorrect premise: that a victim of sexual
violence would 'ordinarily be expected' to make
a prompt complaint. This claim is not true and is
Vol. 8, Issue 3 l For The Defense 65
For the Defense - Vol. 8, Issue 3

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