filed: August 12, 1986.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
JON OTIS VANDER WEELE
Appeal from the Order October 4, 1985 in the Court of Common Pleas of Erie County, Criminal No. 1561 of 1984.
Thomas P. Agresti, Assistant District Attorney, Erie, for appellant Com.
Raymond Pagliari, Erie, for appellee.
Del Sole, Montemuro and Popovich, JJ. Popovich, J. concurs in the result.
Author: Del Sole
[ 356 Pa. Super. Page 153]
Jon Otis Vander Weele was found guilty after a jury trial of Corruption of Minors*fn1 and Indecent Assault*fn2 with respect
[ 356 Pa. Super. Page 154]
to his conduct toward his minor step-daughter during the period of December 2, 1983 through February 14, 1984.
Following the filing of post-trial motions, the court en banc entered an Order granting Appellee's Motion for New Trial. The Court determined the trial court erred, 1) in permitting the Commonwealth to cross-examine character witnesses with regard to guilty pleas entered by Appellee to prior charges of Disorderly Conduct and Criminal Mischief; 2) in its instruction to the jury relating to character evidence; and 3) in determining that records of Children's Services of Erie County and the Family Crisis Organization enjoy an absolute privilege under 42 Pa.C.S.A. § 5944.
This is an appeal by the Commonwealth pursuant to Pa.R.App.P. 311(a)(5) from the Order granting Appellee's Motion for New Trial. In support of its' position, the Commonwealth argues, 1) cross-examination as to witnesses knowledge of Appellee's prior convictions was proper in light of the specific character trait in issue, that being "moral character" or "moral uprightness"; 2) the trial court properly instructed the jury as to the effect and weight it was to give certain character testimony; and 3) Appellee is not entitled to the results of an in camera inspection by the trial court of certain alleged statements made by the victim to either Children's Services or the Family Crisis Organization,
[ 356 Pa. Super. Page 155]
especially since Appellee never requested such an inspection.
Initially we observe that:
[o]ur standard of review in this case is defined by the Supreme Court's holding in Commonwealth v. White, 482 Pa. 197, 199, 393 A.2d 447, 449 (1978): 'As with a denial of a motion for new trial, so with the grant of such a motion, our review is limited to ascertaining whether the lower court abused its discretion or committed an error law.'
Commonwealth v. Frazier, 331 Pa. Super. 128, 132-133, 480 A.2d 276, 279 (1984).
"It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation in any respect which has 'proper relation to the subject matter' of the charge in issue." Commonwealth v. Luther, 317 Pa. Super. 41, 49, 463 A.2d 1073, 1077 (1983). The charges in issue, as previously stated, are Corruption of Minors and Indecent Assault. In an effort to introduce evidence of his good reputation, Appellee called three character witnesses and asked that based upon their familiarity with others who know Appellee in the community, "does he have a reputation for moral character or moral uprightness?" to which each essentially responded that Appellee's reputation for this trait is good. (Trial Transcript at 110, 118, 122-123).
The utilization of character witnesses is not however without attendant risk. "Character witnesses, like any other witnesses, can be subjected to cross-examination and it is the scope of the cross-examination that has been a troublesome area for the courts, commentators and the profession." Commonwealth v. Scott, 496 Pa. 188, 193, 436 A.2d 607, 610 (1981). Furthermore, "[t]he extent of the cross-examination is within the discretion of the trial judge, who will not be reversed except for a clear abuse of discretion or an error law." Commonwealth v. Hammond, 308 Pa. Super. 139, 147, 454 A.2d 60, 64 (1982).
[ 356 Pa. Super. Page 156]
It is the scope of cross-examination which forms the basis of the Commonwealth's first assignment of error. At a sidebar conference, the Commonwealth indicated to the court that Appellee had pled guilty to disorderly conduct and criminal mischief arising out of an incident in which Appellee fired a rifle in the back yard of his home. The Commonwealth further noted that it intended to question character witnesses concerning the convictions. Counsel for Appellee objected on the basis that neither of the convictions go to the character trait involved on direct examination as nothing was asked about nonviolence or law-abiding character. The trial court disagreed and permitted this line of cross-examination.*fn3
[ 356 Pa. Super. Page 157]
As a general statement, "[t]he cross-examination of a character witness for the defense regarding the defendant's prior criminal record is not an abuse or [sic] discretion as the defense opens the door to such an inquiry by placing his reputation at issue in calling such witnesses." Commonwealth v. Hammond, 308 Pa. Super. at 149, 454 A.2d at 65. There are however limits. For example, until our Supreme Courts decision in Scott, when a defendant:
introduced evidence of his own good character, the Commonwealth could then cross-examine the character witness as to whether or not he or she had ever heard persons in the neighborhood attribute particular offenses to the defendant . . . . The cross-examination, however, was required to pertain to offenses which related to the character trait vouched for on direct examination . . . .
Commonwealth v. Fawcett, 297 Pa. Super. 379, 385, 443 A.2d 1172, 1175 (1982) (citations omitted).
In Scott however:
the Supreme Court abrogated the rule which permitted character witnesses to be cross-examined regarding arrests even when they pertained to the character trait vouched for on direct examination. By so doing, the court has cast a cloud of doubt on the right to cross-examine a character witness concerning any and all prior, relevant offenses absent a conviction therefor.
[ 356 Pa. Super. Page 158]
to the contrary, raise a reasonable doubt in the minds of the jury." Commonwealth v. Luther, 317 Pa. Super. at 50, 463 A.2d at 1078. However, "[a] court may use its own language in charging the jury rather than that proposed by counsel if the issue is adequately, accurately and clearly presented." Commonwealth v. Sisco, 484 Pa. 85, 89, 398 A.2d 955, 957 (1979).
In the case sub judice, the court instructed the jury in the following manner with regard to character evidence:
Now, reputation evidence is substantive evidence and it's important that you should consider it as such. If you believe the testimony that he does have a good reputation for these elements, it's possible that that could create a reasonable doubt in your mind as to his guilt. On the other hand, if you determine that the defendant actually did commit these crimes even though he has a good reputation, you can't say he's not guilty if you find that he did it, you don't let him go just because he does have a good reputation.
(Trial Transcript at 165).
As the court en banc found, absent from the above instruction is the requested and necessary charge that character evidence alone may be sufficient to raise a reasonable doubt and thus justify an acquittal.
The Commonwealth's final claim is not totally without merit. Appellee filed pre-trial motions seeking among other things, permission to inspect records of Children's Services of Erie County and the Family Crisis Organization. The Commonwealth answered that the requested records are confidential and not discoverable, citing 42 Pa.C.S.A. § 5945.1 as authority. The trial court denied Appellees motion and the court en banc found this to be error. We agree. Our Supreme Court in Commonwealth v. Ritchie, 509 Pa. 357, 363, 502 A.2d 148, 151 (1985), has indicated that the confidentiality provision of the Child Protective Services Law, 11 P.S. § 2215(a) differ from the confidentiality and privilege provision of 42 Pa.C.S. § 5945.1 relating to sexual
[ 356 Pa. Super. Page 160]
assault counselors. The trial court therefore erred in its determination that 42 Pa.C.S. § 5945.1 is dispositive of Appellee's request for inspection of records. However, we agree with the Commonwealth that in the event of a retrial, it will be for the trial court to determine whether or not Appellee would be entitled to the records in question under 11 P.S. 2215(a) and the in camera inspection requirement set forth in Ritchie, in the event Appellee makes such a request.
Therefore, we affirm the order of the trial court granting Appellee's Motion for new trial as the trial court has neither abused its discretion nor committed an error of law.