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COMMONWEALTH PENNSYLVANIA v. LEON BYUSS (03/29/88)

filed: March 29, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
LEON BYUSS, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 85-11-791-801.

COUNSEL

Robert E.H. Miller, Philadelphia, for appellant.

Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com.

Wieand, Kelly and Hester, JJ.

Author: Wieand

[ 372 Pa. Super. Page 396]

Leon Byuss was tried without jury and was found guilty of rape, involuntary deviate sexual intercourse, aggravated assault, and possession of an instrument of crime. Post-trial motions and supplemental post-trial motions were denied, and Byuss was sentenced to serve concurrent terms of imprisonment for not less than four years nor more than eight years on the convictions for rape and involuntary deviate sexual intercourse. Separate sentences were not imposed on the other convictions. On direct appeal, Byuss argues that the trial court erred when it refused to allow defense counsel to examine medical reports pertaining to the victim's psychological condition and, instead, made an in

[ 372 Pa. Super. Page 397]

    camera examination of the records. We disagree with appellant and affirm the judgment of sentence.

Appellant and Janet Henderson were members of a Bible research ministry known as "The Way." As such, they lived in a communal home which was maintained for members of the ministry. On the morning of October 28, 1985, while appellant and Henderson were alone in the home, appellant entered Henderson's bedroom with a meat cleaver and demanded that she disrobe. After a struggle, Henderson was forced to submit to vaginal intercourse and perform fellatio. Henderson thereafter left the house and contacted police. An examination at Jefferson Hospital revealed sperm in the area of her vagina, a laceration of her lower lip, chipped teeth, and abrasions of her forehead, nose, and throat.

Prior to trial, appellant sought to examine reports of psychological and psychiatric examinations performed on the victim for "any diagnosis which would bear on her psychiatric situation at the time [of the incident] or her ability to testify competently." Appellant also sought any accounts of the incident appearing in such reports. Appellant asked, in the alternative, that the court examine the reports to determine the existence of any such discoverable material. The court examined the reports in camera. After determining that they contained no relevant, exculpatory material, the trial court refused to compel disclosure. Appellant contends that the Commonwealth had no right of confidentiality with respect to the records and that the trial court's order deprived him of his constitutional right to confront and cross-examine his accuser.

The United States Supreme Court, in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987),*fn1 observed that the right of confrontation is a trial right. "The ability to question adverse witnesses," the Court said, "does not include the power to require the pretrial disclosure

[ 372 Pa. Super. Page 398]

    of any and all information that might be useful in contradicting unfavorable testimony." Id. at , 107 S.Ct. at 999, 94 L.Ed.2d at 54. Thus, the confrontation clause was not violated by the withholding of the files pertaining to the victim which were held by Child Welfare Services. Similarly, the Court held, the compulsory process clause of the Sixth Amendment did not grant to a defendant the right to search through the Commonwealth's files. Although it is well settled that the ...


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