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filed: July 11, 1980.


No. 1605 April Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, at Nos. 1650-1653 of 1977.


J. David Ungerman, Erie, for appellant.

Michael M. Palmisano, Assistant District Attorney, Erie, for Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ. Spaeth, J., files concurring opinion.

Author: Hoffman

[ 279 Pa. Super. Page 437]

Appellant contends that the lower court deprived him of a fair trial by refusing to allow him to depose before trial certain individuals who allegedly could have provided exculpatory evidence. We disagree and, accordingly, affirm the judgment of sentence.

In late 1976 and early 1977, Children's Services of Erie County (Children's Services) conducted an investigation into a report that appellant had sexually abused a fifteen-year-old boy whom Children's Services had placed in the foster home which appellant operated. Children's Services concluded from this investigation that the report of abuse was "unfounded."*fn1 Subsequently, in June, 1977, the Commonwealth charged appellant with multiple counts of involuntary deviate sexual intercourse, corruption of minors, and criminal solicitation in connection with the sexual abuse of the boy and three other children, ages eight to fourteen, who had been placed in appellant's home. Suspecting that the Children's Services investigation had uncovered exculpatory evidence, appellant requested a court order allowing him to take pretrial depositions of "those individuals who conducted the investigation."*fn2 The court refused to grant such an order, and the case proceeded to trial without a jury. The Commonwealth's case consisted entirely of the testimony of

[ 279 Pa. Super. Page 438]

    the four young victims, who described in detail numerous instances of sexual abuse. Appellant called two Children's Services caseworkers,*fn3 who testified that several of the victims had denied during the investigation that any instances of sexual abuse had ever occurred.*fn4 On October 31, 1977, the court found appellant guilty of all charges. After denying post-verdict motions, the court imposed sentence, and appellant took this appeal.

Appellant contends that the lower court's refusal to allow him to depose individuals who had conducted the Children's Services investigation into the original report of abuse sanctioned the type of official suppression of exculpatory evidence proscribed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. In so contending, appellant reasons that because Children's Services is an agency of the Commonwealth, it is subject to the same duty of disclosure as is the prosecutor. We disagree. In Brady v. Maryland, supra, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of

[ 279 Pa. Super. Page 439]

    the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-1197. "The heart of the holding in Brady is the prosecution's suppression of evidence." Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972) (emphasis added).*fn5 In the present case Children's Services simply cannot be characterized as being "part of the prosecution." Commonwealth v. Wilder, 461 Pa. 597, 602 n.6, 337 A.2d 564, 567 n.6 (1975) (plurality opinion). It neither brought criminal charges against appellant nor conducted any investigation into appellant's criminal liability. Its role in the events which preceded this prosecution was limited to investigating whether the best interests of children entrusted to appellant's care and supervision were being served. Accordingly, we reject appellant's suggestion that Children's Services was obligated under Brady to disclose any exculpatory evidence it may have possessed.

We note additionally that the rules of court in effect at the time of trial did not entitle appellant to the pretrial discovery which he sought. Former Pa.R.Crim.P. 310 expressly limited discovery in criminal cases to written confessions and written statements made by a defendant, absent "exceptional circumstances and compelling reasons."*fn6 Appellant

[ 279 Pa. Super. Page 440]

    showed no exceptional circumstances and compelling reasons which would have warranted allowance of the depositions which he requested. Indeed, the fact that he was able to subpoena and examine Children's Services personnel indicates that no such circumstances and reasons existed. Accordingly, we find no error in the lower court's refusal to allow appellant to depose employees of Children's Services.

Judgment of sentence affirmed.

SPAETH, Judge, concurring:

I join in the majority opinion, but wish to express my understanding of the scope of the majority's holding. It would be possible to read the majority's opinion as holding that because Children's Services is not the prosecutor, it has no duty of disclosure. I do not understand the opinion so to hold. In other circumstances than those present in this case, an accused may have the right, both under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and our rules of criminal procedure, to discovery of an investigation conducted pursuant to the Child Protective Services Law, 11 P.S. ยง 2201 et seq. (1979-80 Supp.) This right may arise, for example, if matters regarding the accused are learned by law enforcement officers through the child agency's investigation, and the investigation influences the decision to commence criminal proceedings against the accused. Here, however, appellant does not contest the Commonwealth's assertion that it did not have access to, and therefore the decision to prosecute was not influenced by, information received by the child welfare agency.

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