Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Pennsylvania, Criminal Division, No. 1475 of 1984.
Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
Paul Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.
Rowley, Del Sole and Cercone, JJ. Cercone, J., concurs in the result.
[ 358 Pa. Super. Page 383]
Joseph S. Cacek was found guilty after a jury trial of rape,*fn1 simple assault*fn2 and terroristic threats*fn3 with respect to his conduct toward his stepdaughter from the time she was twelve until twenty-two years of age. Post-trial motions for new trial and/or arrest of judgment were filed and subsequently denied. Thereafter, Appellant was sentenced to a term of imprisonment for not less than four nor more than eight years for rape, a consecutive two year period of probation for simple assault and a two year period of probation for terroristic threats to run concurrent with the period of probation for simple assault.
Initially, Appellant contends the trial court erred in denying his pre-trial Motion for discovery of any statements made by the victim to personnel of the Erie County Rape Crisis Center in the possession of the Commonwealth. In denying the Motion the trial court reasoned, "that such statements are specifically determined to be confidential by legislative enactment and not subject to pre-trial discovery. (42 Pa.C.S.A. § 5945.1(b))." (Trial Court Opinion at 6). In this respect the trial court erred and for the following reasons, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.
[ 358 Pa. Super. Page 384]
The Confidential Communications To Sexual Assault Counselors statute provides in pertinent part:
(b) Privilege -- A sexual assault counselor has a privilege not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim being counseled by the counselor as to any confidential communication made by the victim to the counselor or as to any advice, report or working paper given or made in the course of the consultation.
42 Pa.C.S.A. § 5945.1(b).
Appellant contends the trial court erred in denying his motion as 42 Pa.C.S.A. § 5945.1(b) "infringes upon the right of confrontation guaranteed by the Sixth Amendment without the justification of a compelling state interest . . . ." (Appellant's Brief at 15).
"[W]e take note of the well-established proposition that a court is not to rule on the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the issue before it." Commonwealth v. Samuels, 354 Pa. Super. 128, 144-145, 511 A.2d 221, 230 (1986). It is unnecessary to the disposition of this appeal to reach the issue of the constitutionality of § 5945.1(b). The statute is simply inapplicable in this matter. "It grants sexual assault counselors a privilege . . . ." Commonwealth v. Samuels, 354 Pa. Super. at 147, 511 A.2d at 231. Appellant has not attempted to discover any communication by the victim in the possession of a counselor or any advice, report or paper given or made in a counselor's possession. Here, pursuant to Pa.R.Crim.P. 305, Appellant filed a pre-trial Motion for discovery of information within the Commonwealth's possession. 42 Pa.C.S.A. § 5945.1(b) does not grant the Commonwealth a privilege to prevent disclosure of discoverable items and information requested by a defendant pursuant to ...