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COMMONWEALTH PENNSYLVANIA v. EDWARD S. KYLE (10/20/87)

filed: October 20, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
EDWARD S. KYLE, SR., APPELLANT



Appeal from Judgment of Sentence October 10, 1986, in the Court of Common Pleas of Lycoming County, Criminal No. 85-10,939.

COUNSEL

William J. Miele, Assistant Public Defender, Williamsport, for appellant.

Kenneth Osokow, Assistant District Attorney, Williamsport, for Com., appellee.

Cirillo, President Judge, and Olszewski and Hester, JJ.

Author: Olszewski

[ 367 Pa. Super. Page 488]

This is a direct appeal from a judgment of sentence imposed following appellant's conviction by a jury. The trial and conviction stemmed from an attack on the female proprietor of a sewing goods store. As the victim was working alone in the shop, an assailant entered the store and, forcing her at knife point to enter the storeroom, he bound her with rope. The victim was then physically and sexually assaulted. Appellant was subsequently arrested and charged with numerous offenses arising from the attack.

[ 367 Pa. Super. Page 489]

After a three-day trial, he was found guilty of rape, robbery, indecent assault, involuntary deviate sexual intercourse, and other related offenses. Post-verdict motions were filed and denied, and sentence imposed. Appellant now raises five claims of trial error for our review. Finding no merit to any of these claims, we affirm the judgment of sentence.

I.

At trial, appellant testified on his own behalf, presenting an alibi defense. Following his testimony, the Commonwealth read into evidence a stipulation as to his prior convictions for robbery, burglary, and theft. By introducing such evidence, the Commonwealth intended to cast doubt on appellant's credibility. Appellant first contends the court erred in permitting the Commonwealth to use his prior convictions for impeachment purposes.

In determining the admissibility of prior convictions, our courts have relied upon the rules of Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). Our Supreme Court has, however, recently modified the rules of Bighum and Roots. In Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), the Court noted that those cases have proven to be less than effective in guiding the courts and the litigants as to the admissibility of prior conviction evidence. Consequently, the Supreme Court determined that the relevant Federal Rule of Evidence, Fed.R.Evid. 609(a)(1), (2), offered more concrete guidelines for the admission of prior convictions. Borrowing from the language of the federal rule, the Court held:

[W]hile we do not adopt the federal rule per se we do modify our current rule to the following extent: evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a

[ 367 Pa. Super. Page 490]

    period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Randall, 515 Pa. at 415, 528 A.2d at 1328-1329.

Under the rule announced in Randall, appellant's prior convictions were admissible as impeachment evidence. Each of the convictions in question -- robbery, burglary, and theft -- reflect on appellant's veracity. See Randall, 515 Pa. 410, 528 A.2d 1326 (burglary); Commonwealth v. Henderson, 497 Pa. 23, 35, 438 A.2d 951, 957 (1981) (theft and robbery). None of the prior convictions occurred more than ten years before appellant's trial date (March 12, 1986) since appellant was convicted of theft and burglary in 1977 and of robbery in 1985. Consequently, the court properly permitted the Commonwealth to introduce the prior convictions into evidence.

II.

Appellant's second claim of error raises a difficult question regarding privileged communications between psychologist and client. Subsequent to the attack, the victim received counseling from Dr. John Kelsey, a licensed clinical psychologist. In an effort to determine the substance of any statements made by the victim and to prepare a defense strategy, defense counsel made pre-trial requests to inspect Dr. Kelsey's file or, in the alternative, to permit an in-camera review of the file. The trial court determined that Dr. Kelsey's records were privileged communications pursuant to 42 Pa.C.S.A. § 5944*fn1 and, consequently, denied the defense

[ 367 Pa. Super. Page 491]

    requests. Appellant maintains that the failure to disclose the contents of the file denied him the rights guaranteed by the Confrontation Clause of the Sixth Amendment of the United States Constitution.

A.

The confrontation clause guarantees an accused the right "to be confronted with the witness against him; [and] to have compulsory process for obtaining witnesses in his favor." U.S. Const. Amend. VI.*fn2 In essence, that clause protects two rights: the right to confront one's accusers and the right to cross-examine witnesses. Delaware v. Fensterer, 474 U.S. 15, 18, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (per curiam). Nothing in the record indicates that appellant was denied the right to physically confront his accusers; appellant was neither excluded from the trial nor deprived of the right to confront the declarant of a hearsay statement. See Id. See also Pennsylvania v. Ritchie, U.S. , , 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987) (defining scope of the right). Rather, appellant's claim that he was denied access to arguably useful information raises a question regarding appellant's sixth amendment right to the cross-examination of the witness. See Ritchie, U.S. at , 107 S.Ct. at 998.

The Supreme Court of the United States has only recently examined the applicability of the sixth amendment to a situation where access to information is precluded pursuant to a statutory privilege. In Pennsylvania v. Ritchie, supra, the defendant was charged with various sex offenses arising out of an assault on his minor daughter. Following the assault, the matter was referred to the Children and Youth Services (CYS), a protective service agency which investigates such cases. Ritchie sought pre-trial access to the CYS file in order to develop a defense strategy. CYS refused to comply with Ritchie's request, claiming

[ 367 Pa. Super. Page 492]

    the records were confidential communications pursuant to the statutory privilege provided by 11 Pa.S.A. § 2215.*fn3 The trial judge refused to order disclosure. On appeal, the Superior Court and the Supreme Court disagreed, finding that the trial court's order denying access pursuant to Section 2214 violated the accused's rights guaranteed by the confrontation clause. Ritchie, U.S. at , 107 S.Ct. at 995-996.

The United States Supreme Court disagreed with our appellate courts. Speaking for a plurality of the Court, Justice Powell made clear that the confrontation clause of the sixth amendment was a trial right, not a "constitutionally compelled rule of pretrial discovery." Ritchie, U.S. at , 107 S.Ct. at 999. "In short, the Confrontation Clause only guarantees 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Ritchie, U.S. at , 107 S.Ct. at 999 (emphasis in original), quoting, Delaware v. Fensterer, 474 U.S. at 19, 106 S.Ct. at 295. Given that defense counsel was able to fully cross-examine the victim, withholding the CYS file did not deny Ritchie his right to cross-examination. Ritchie, U.S. at , 107 S.Ct. at 1000.

We recognize that the confrontation clause analysis in Ritchie commanded only a plurality of the Court. Though, regrettably, the Court could not issue a majority opinion for our guidance on this important issue, we consider the analysis of the plurality principled and persuasive. It is this Court's opinion, then, that the right to cross-examine witnesses

[ 367 Pa. Super. Page 493]

    is a trial right which, consequently, does not require the pre-trial disclosure of any information which may be useful in preparing for trial or in attacking trial testimony.*fn4

Applying this rule to the case at hand, appellant's right of cross-examination was not violated by the denial of access to the psychologist's file. The principal witness for the Commonwealth was the eyewitness to the assault, the victim. As in Ritchie, appellant's trial counsel was not prevented from conducting cross-examination of that, or of any other, trial witness. Indeed, a review of the transcript reveals that during the cross-examination of the victim, defense counsel was able to call into question the witness's memory and perception of the assault. Given that defense counsel employed the opportunity to fully cross-examine the trial testimony, particularly that of the victim, appellant was not denied his right to cross-examination as guaranteed by the sixth amendment.

B.

1.

This is not to say, however, that a preclusion of a defendant's access to pre-trial information is immune from constitutional review. A majority of the Supreme Court in Ritchie made clear that where an accused raises a claim based upon the inability to obtain pre-trial information, the Due Process Clause of the Fourteenth Amendment provides the proper framework for analysis. Ritchie, U.S. at , 107 S.Ct. at 1001. Specifically, the Court referred to the due process protection afforded an accused to obtain "material" evidence in the possession of the Commonwealth. Id., citing, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). In Ritchie, however, the Supreme Court was unable to determine the materiality of the CYS file because it had not been reviewed by the

[ 367 Pa. Super. Page 494]

    defendant, the Commonwealth, or the trial court. Ritchie, U.S. at , 107 S.Ct. at 1002. More importantly for our purposes, the Supreme Court reasoned that the qualified statutory privilege of § 2215 did not prevent the trial court from determining ...


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