Appeal from the Judgment of Sentence entered March 23, 1987 in the Court of Common Pleas of Indiana County, Criminal Division, at No. 494 Crim. 1986.
Michael Handler, Assistant Public Defender, Indiana, for appellant.
Brosky, Del Sole and Hoffman, JJ. Hoffman, J., concurs in the result.
[ 375 Pa. Super. Page 581]
This is an appeal from the judgment of sentence for rape, 18 Pa.C.S.A. § 3121, and indecent assault, 18 Pa.C.S.A. § 3126. Appellant contends that (1) the trial court erred in quashing a subpoena served by Appellant on the director of the Alice Paul House, (hereinafter APH), a rape crisis center located in Indiana, Pennsylvania, requesting production of their records; and (2) that the trial court erred in its instruction to the jury concerning the relative difference between rape and indecent assault. We agree with the trial court that Appellant's second issue lacks merit, and rely on the thorough discussion of President Judge Robert C. Earley on the matter. However, for the following reasons we vacate the judgment of sentence and remand this case for proceedings consistent with this opinion.
Appellant was convicted of rape and indecent assault in connection with the sexual assault of a woman on August 14, 1986. The following day the victim went to the APH and was interviewed by various staff members there.
At Appellant's pretrial conference, he requested from the Commonwealth production of all records pertaining to any interviews which the victim may have had at APH. This request was included in the Omnibus Pretrial Motion filed by Appellant on October 29, 1986, and on November 6, 1986, Appellant served a subpoena duces tecum upon Lenore Patton, Director of APH, requesting production of all such records for inspection by Appellant. APH's petition to quash the subpoena, which claimed confidentiality of all of
[ 375 Pa. Super. Page 582]
these documents pursuant to the Act of 1981, December 23, P.L. No. 169, Section 1, 42 Pa.C.S.A. § 5945.1 was granted.*fn1
Appellant now asserts that this was error on the part of the trial court, maintaining that the Act does not apply in this situation, and that even if the Act does apply, the Act is unconstitutional under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and under comparable provision of the Pennsylvania Constitution.
The law in this area has received special attention since our Supreme Court's decision in In the Matter of Pittsburgh Action Against Rape, (" PAAR "), 494 Pa. 15, 428 A.2d 126 (1981). In PAAR the Supreme Court refused to create a common law absolute privilege for all communications between a rape crisis counselor and victims seeking
[ 375 Pa. Super. Page 583]
aid from such personnel. Id. The Court balanced the following factors ...