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filed: August 28, 1986.


Appeal from Judgment of Sentence in the Court of Common Pleas of Fayette County, Criminal Division, Nos. 827, 827 3/6, 827 4/6, 827 5/6 of 1984.


Anne John, Uniontown, for appellant.

Ewing D. Newcomer, Assistant District Attorney, Uniontown, for Com., appellee.

Cirillo, President Judge, and Tamilia and Popovich, JJ.

Author: Tamilia

[ 356 Pa. Super. Page 345]

This appeal follows appellant's conviction, in a non-jury trial, of corrupting the morals of a minor, indecent assault, involuntary deviate sexual intercourse and indecent exposure.

[ 356 Pa. Super. Page 346]

Under the provisions of 42 Pa.C.S.A. § 9718,*fn1 appellant was sentenced to imprisonment for a term of five to ten years. He was also ordered to pay prosecution costs, $25 to the Crime Victims Compensation Fund and a fine of $500.

The conduct which formed the basis of appellant's conviction involved sexual contact between a minor child, who resided with her mother, and appellant. The activity extended over a two-year period beginning when the child was six years old.

In November 1984, appellant, accompanied by the child's mother, met with a caseworker for Children and Youth Services. Appellant made various inculpatory statements to the caseworker concerning his conduct with the child. The caseworker subsequently contacted the Chief of Police of Luzerne Township, Fayette County, pursuant to the mandatory reporting provisions of the Child Protective Service Law (11 P.S. § 2204).*fn2 The police contacted appellant

[ 356 Pa. Super. Page 347]

    and placed him under arrest. While in custody and after being given his Miranda warnings, appellant made inculpatory statements to the police.

Appellant initially filed pre-trial motions seeking to have the reporting provision (11 P.S. § 2204) of the Child Protective Services Act, 11 P.S. § 2201 et seq., declared unconstitutional and his statements suppressed. This motion was denied and appellant petitioned to have the matter certified for appeal. The petition was also denied and appellant was subsequently convicted. Following the denial of post-trial motions and sentencing, this appeal was filed wherein appellant seeks to again challenge the constitutionality of the Child Protective Services Law and also the mandatory sentencing provisions of 42 Pa.C.S.A. § 9718.

Appellant contends the trial court erred in not granting his post-trial motions in arrest of the judgment or for a new trial. This is based on the assertion that the Children and Youth Service's caseworker violated his constitutional rights by not informing him prior to the making of his statements of his Miranda*fn3 rights or of her obligation to report suspected child abuse. He also maintains the statements made to the police were tainted by the illegality of the initial statements and should have been suppressed. Finally he argues that the mandatory sentencing provision of 42 Pa.C.S.A. § 9718 is unconstitutional in that it inflicts cruel and unusual punishment while denying equal protection.

Our review of the briefs and the record in this case leads us to conclude that appellant's claims are without merit.

[ 356 Pa. Super. Page 348]

An Order denying a motion to suppress shall be upheld on review if the factual findings of the lower court are supported by the record and the legal conclusions drawn therefrom are not in error. Commonwealth v. Otto, 343 Pa. Super. 457, 464, 495 A.2d 554, 558 (1985) citing Commonwealth v. Trenge, 305 Pa. Super. 386, 451 A.2d 701 (1982); Commonwealth v. Jackson, 497 Pa. 591, 595, 442 A.2d 1098, 1100 (1982).

We agree with the suppression hearing court that no constitutional violation occurred when appellant made the statements to the caseworker and later to the police.

Appellant alleges the lower court erred in failing to grant his motion for suppression by reason of intrusion into his privacy as to confidential statements made to a child welfare worker who subsequently reported them to the police. Appellant claims there is a privilege of confidentiality and privacy as well as a right against self-incrimination which were violated.

The right of privacy in the family setting has never been extended to criminal acts in the family or against or with family members. The pole star cases in recent times on the right to marital privacy are Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 147 (1973). The personal intimacies of marriage, procreation, contraception, child rearing, education and family relationships have been held fundamental by the Supreme Court and hence have been encompassed within a constitutional right of privacy. Id.; Bowers v. Hardwick, U.S. , 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). In the Concurring Opinion of Justice Goldberg in Griswold, joined by Chief Justice Warren and Justice Brennan, it was stated:

Finally, it should be said of the Court's holding today, that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman, supra, 367 U.S. [497] at 553, 81 S.Ct. [1752] at 1782 [6 L.Ed.2d 989]

[ 356 Pa. Super. Page 349]

    serious problems has to do with effective treatment of the abuser and the high rate of recidivism, particularly where prosecution is ineffective. A child quickly becomes the focus of guilt and blame from family members when there is outside intervention for its protection and, short of removal of the child, there is great difficulty in producing effective treatment as proof of the sexual activity is gradually subverted. Prosecution or threat of prosecution is the only vehicle for opening the family dynamics to effective treatment and to protect the child and other members of the family from further abuse. The most difficult problem has been to bring about a workable arrangement between prosecution and treatment, long term, for accommodating the twin goals of treatment and punishment. Without prosecution, it is unlikely there would be treatment; surely there would be no deterrence and without treatment there would be much higher recidivism. As stated above (§ 2217(8)), the law cannot compel treatment, yet must assure the protection of the child.

The law, to accomplish the unique requirements of a legal action in which a child, highly vulnerable because of familial pressure, anxiety and harsh defense trial practices, is the primary witness, has been relaxed to assure effective proceedings. In particular, it eliminated any claim of privilege between husband and wife or between any professional person. Section 2222 of the Act provides:

§ 2222. Hearings and evidence

In addition to the rules of evidence provided under the Juvenile Act the following shall govern in child abuse proceedings in juvenile or family court:

(1) Whenever any person required to report under this act is unavailable due to death or removal from the court's jurisdiction, the written report of such person shall be admissible in evidence in any proceedings arising out of child abuse other than proceedings under the Crimes Code. Any hearsay contained in the reports shall be given such weight, if any, as the court shall determine to be appropriate under all of the circumstances. However,

[ 356 Pa. Super. Page 352]

    any hearsay contained in a written report shall not of itself be sufficient to support an adjudication based on abuse.

(2) Except for privileged communications between a lawyer and his client and between a minister and his penitent, any confidential communication between husband and wife or between any professional person, including but not limited to physicians, psychologists, counselors, employees of hospitals, clinics, day care centers, and schools and their patients or clients, shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause thereof.

(3) Evidence that a child has suffered serious physical injury, sexual abuse or serious physical neglect of such a nature as would ordinarily not be sustained or exist except by reason by the acts or omissions of the parent or other person responsible for the welfare of such child shall be prima facie evidence of child abuse by the parent or other person responsible for the child's welfare.

1975, Nov. 26, P.L. 438, No. 124, § 22, imd. effective. (Emphasis added)

Spouses as witnesses against each other, 42 Pa.C.S.A. § 5913, provides that a spouse

Appellant further relies on In re B., 482 Pa. 471, 394 A.2d 419 (1978) to secure the right of privacy between himself and the C.Y.S. social worker. In re B. is inapposite as it had to do with the right of a mother who engaged in psychotherapy, to claim personal privilege between patients and their doctors, when her records were subpoenaed by the court to determine her fitness to have her child returned to

[ 356 Pa. Super. Page 353]

    her in a dependency proceeding. That opinion applies only to the facts of that case as the plurality was for reversal but without a majority deciding that a parents doctor client privilege extended to a parent in a proceeding vis a vis the child.

The issue of confidentiality is not present here as C.Y.S. is not only a treatment agency but is the investigative arm of the statewide system of Child Protective Services. It is clear from the act that depending upon its findings, it has a wide range of responsibility including initiating court action, if necessary (supra). Thus while appellant was on notice from the law that his statements could be used against him in court actions, and he had no privilege of confidentiality in that regard, he had no right to Miranda warnings, as the role of the agency is to protect children and not that of a police agent. There was no compulsion involved in his statements either to the C.Y.S. social worker or the police.

Even in the context of a state or county official receiving an inculpatory statement (Miranda, supra), Miranda warnings are not required. This controversy was fully resolved by Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), where a probationer on a different charge, admitted an earlier rape and murder, which was then reported to the police resulting in indictment and successful prosecution to conviction. The court, in an Opinion delivered by Justice White, stated:

We conclude, in summary, that since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations. Because he had not been compelled to incriminate himself, Murphy could not successfully invoke the privilege to prevent the information he volunteered to his probation officer from being used against him in a criminal prosecution.

Id. 465 at 440, 104 S.Ct. at 1149, 79 L.Ed.2d at 428. It is also of significance that in the Murphy case, the first admission of the crime was to an Alpha House drug counselor,

[ 356 Pa. Super. Page 354]

    who reported to the P.O., who, after talking to the appellant, reported it to the police. In this case, since neither the statement to the C.Y.S. worker or the police was compelled, he cannot claim the privilege.

The challenge to the constitutionality of the mandatory sentencing provision of 42 Pa.C.S.A. § 9718 must also fail. The question of whether this section violates the constitutional prohibition against cruel and unusual punishment was discussed in Commonwealth v. Wildermuth, 347 Pa. Super. 640, 501 A.2d 258 (1985) where the court refused to accept such an assertion. The United States Supreme Court recently reviewed the Pennsylvania Mandatory Sentencing Statute as it related to "a visibly possessed firearm" and affirmed the power of the legislature to enact mandatory minimum sentences. See McMillan v. Pennsylvania, U.S. , 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In doing so, the McMillan Court relied heavily on Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) and stated (in Patterson):

Id. 106 S.Ct. at 2416.

Section 9718(a) of 42 Pa.C.S.A., in providing for a mandatory sentence of five years for the rape of a child under sixteen, does not increase the sentence required by statute nor does it eliminate proof beyond a reasonable doubt of any essential element necessary to convict. Upon proof of the facts of defendants' and victims' ages (which can be established at sentencing by a preponderance of the evidence), the requirement of a minimum sentence is fully

[ 356 Pa. Super. Page 355]

    within the legislative powers in determining the severity of punishment. See McMillan and Patterson, supra.

The claim that such a statute violates due process was also rejected in Wildermuth (also see McMillan and Patterson), thus we conclude that the case is controlling on both the issues raised and requires our rejection of appellant's arguments.

For the reasons stated herein, the judgment of sentence is hereby affirmed.

Judgment of sentence affirmed.


Judgment of sentence affirmed.

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