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COMMONWEALTH PENNSYLVANIA v. RICHARD MISTRETTA (06/16/87)

filed: June 16, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RICHARD MISTRETTA, APPELLANT



Appeal from Judgment of Sentence July 1, 1986, in the Court of Common Pleas of Lycoming County, Criminal No. 85-10, 672.

COUNSEL

William J. Miele, Williamsport, for appellant.

Brian C. Caffrey, Assistant District Attorney, Williamsport, for Com., appellee.

Wieand, Olszewski and Tamilia, JJ. Wieand, J., concurs in the result.

Author: Olszewski

[ 364 Pa. Super. Page 333]

Appellant, Richard Mistretta, appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County after a jury found appellant guilty of indecent assault, pursuant to 18 Pa.C.S.A. Sec. 3126, and corruption of minors, pursuant to 18 Pa.C.S.A. Sec. 6301. On appeal, appellant raises the following issues: (1) whether the trial court erred in allowing the victim to assert a patient/licensed psychologist privilege, pursuant to 42 Pa.C.S.A. Sec. 5944,*fn1 regarding statements made by the victim to a counselor employed by Williamsport Psychological Associates; (2) whether the trial court erred in permitting the Commonwealth to introduce appellant's prior criminal record into evidence for the purpose of impeachment; and

[ 364 Pa. Super. Page 334]

(3) whether the trial court erred in sentencing appellant to two consecutive terms of imprisonment for the two separate convictions, which arose from the same criminal incident.*fn2

[ 364 Pa. Super. Page 335]

For the reasons stated below, we affirm the trial court's judgment of sentence.

Before addressing the merits of appellant's contentions, a brief recital of the relevant facts is necessary. The Honorable Clinton W. Smith's trial court opinion of May 13, 1986, succinctly described the facts surrounding the incident that resulted in appellant's arrest and subsequent convictions:

The Commonwealth evidence showed that on a day in July, 1984, the victim (an eleven year old boy) returned to his home . . . in Williamsport. The defendant (appellant, who was the victim's twenty-four year old brother) was the only person in the house at that time, and he asked the victim to come upstairs so that the defendant could show the victim the hiking boots that the defendant bought for the victim's brother. The defendant pushed the victim on the bed and fondled and sucked the victim's penis. The victim's and the defendant's mother . . . and another relative . . . testified that the victim came over to the neighbor's house, crying and saying that "Rick" would not leave him alone. The victim later told a number of people what the defendant had done to him.

Trial court opinion of May 13, 1986, at p. 2. Appellant was subsequently charged with involuntary deviate sexual intercourse (18 Pa.C.S.A. Sec. 3123), statutory rape (18 Pa.C.S.A. Sec. 3122), indecent assault (18 Pa.C.S.A. Sec. 3126), and corruption of minors (18 Pa.C.S.A. Sec. 6301).

[ 364 Pa. Super. Page 336]

On November 19-21, 1985, appellant had a jury trial before Judge Smith, and on November 21, 1985, the jury acquitted appellant of the involuntary deviate sexual intercourse and statutory rape charges, but found him guilty of the indecent assault and corruption of minors charges. Appellant timely filed post-verdict motions. In addition, appellant also filed amended, supplemental post-verdict motions after the ten-day period to file the motions had expired. See Pa.R.Crim.P. 1123(a). After the Honorable Clinton W. Smith denied appellant's post-verdict motions,*fn3 the Honorable Thomas C. Raup*fn4 sentenced appellant to a term of imprisonment of one to two years on the indecent assault conviction, and a consecutive term of imprisonment of eighteen months to three years on the corruption of minors conviction. After denial of his motion to reconsider sentence, appellant filed this timely appeal.

Appellant first contends that the trial court erred by allowing the victim to assert the patient/licensed psychologist privilege regarding two conversations with a counselor employed at Williamsport Psychological Associates. Prior to his trial, appellant, without opposition from the Commonwealth, filed a motion for an in camera inspection of records pertaining to counseling the victim received as a result of the incident with appellant. The Honorable Thomas C. Raup granted appellant's motion, and ...


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