dissenting:
For the following reasons, I dissent. One of Appellant’s contentions raised before this Court, also raised below, is that an individual other than Appellant had engaged in sexual intercourse with the victim on the night of the alleged rape. The record reveals that immediately prior to trial Appellant sought to permit the introduction of the testimony of the witness, who was present in the courtroom, to that effect. At that time, the Commonwealth objected on the grounds that the witness would testify to exactly the opposite, that he had never at any time had sexual relations with the victim. However, the trial court did not proceed to conduct an in camera hearing to question the witness under oath prior to ruling the witness’ testimony to be inadmissible. This I believe was error.
Under Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), the victim in the instant case could have been cross-examined on her sexual activities prior to the alleged rape if the witness in question testified that he had sexual intercourse with the victim on the same night as the alleged rape. This would offer a possible explanation for the presence of seminal acid phosphatase on the victim’s underpants. Conversely, if the witness testified that he did not have sexual intercourse with the victim on the night of the alleged rape then it is clear that under the Rape Shield Law, 42 Pa.C.S. § 3104(a), no evidence whatsoever could be admitted into evidence concerning the victim’s prior sexual activities. The critical fact is whether the witness had sexual intercourse with the victim on the night of the alleged rape, a fact which the trial court neglected to discover from the witness under oath and a fact which the majority feels is not crucial to its analysis.
*558Accordingly, I would vacate Appellant’s conviction for rape and remand the case to the trial court for an evidentiary hearing to determine as a matter of record whether the witness in question had sexual intercourse with the victim on the night of the alleged rape. Should the witness testify under oath that he did not, then the conviction for rape should be reinstated with a right for Appellant to file another appeal raising any of the remaining issues he raises before this Court. Should, however, the witness testify that he did have sexual intercourse with the victim on the night of the alleged rape, the testimony would be admissible in a new trial to explain the presence of the seminal acid phosphatase on the victim’s underpants.