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COMMONWEALTH PENNSYLVANIA v. JERRY PAUL WILSON (06/20/88)

SUPERIOR COURT OF PENNSYLVANIA


filed: June 20, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JERRY PAUL WILSON, APPELLANT

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.

COUNSEL

Michael Handler, Assistant Public Defender, Indiana, for appellant.

Brosky, Del Sole and Hoffman, JJ. Hoffman, J., concurs in the result.

Author: Del Sole

[ 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 in stating its rationale:

There is an undoubtable public interest in helping victims of rape to cope with inevitable disruption of emotional stability caused by the physical assaults they suffer. There is an equally compelling public interest in encouraging victims of violent crime to come forward. . . . [Nonetheless], [i]t would be unfair to erect a privilege that would deny the accused the opportunity at least to ascertain what the complainant previously has said.

Id., 494 Pa. at 24, 428 A.2d 130, 494 Pa. at 27, 428 A.2d at 132. Accordingly, the Court held:

     that upon defense request a court should authorize defense inspection of only those statements of the complainant contained in the file which bear on the facts of the alleged offense. The court, however, must not permit defense inspection of statements of the complainant having no bearing on the facts of the counseling services PAAR provides. The trial court shall not permit defense review of any other aspect of the file.

Id., 494 Pa. at 19, 428 A.2d at 127-28. The review by the trial court is to be held in camera and the judge is to determine exactly what in the file are truly "statements" of the victim and not recollections or interpretations of the interviewing counselor. Such statements are to be "verbatim accounts of the complainant's declarations and notes that the complainant has approved as accurately reflecting what she said." Id., 494 Pa. at 28, 428 A.2d at 132. Furthermore, only statements that have a direct bearing to the facts of the alleged offense and not to counseling services may be released. The Court strongly cautions against improper disclosure.

Following the decision in PAAR, the Legislature enacted the sexual assault counselors' privilege statute. 42 Pa.C.S.A. § 5945.1. It grants sexual assault counselors 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 . . . ." 42 Pa.C.S.A. § 5945.1(b).

[ 375 Pa. Super. Page 584]

In the recent case of Commonwealth v. Samuels, 354 Pa. Super. 128, 511 A.2d 221 (1986), this Court had occasion to deal with the Act. In Samuels, appellant was arrested for the sexual assault of an eleven-year-old girl. He requested that the file compiled by Bucks County Women Organization Against Rape (WOAR) relating to its interviews with the victim, be released for inspection. The trial court denied appellant's request. When appellant filed post-trial motions alleging this to be an error, an in camera inspection by the trial court did take place.

On appeal in Samuels, this Court held that since defense counsel had sought only pretrial examination of certain materials in the possession of the rape crisis center and had never sought to examine any counselor as a witness, that § 5945.1 was inapplicable. The outcome was governed by the principles announced in PAAR. Id.

We agree with Appellant that the case sub judice is like Samuels, and therefore the Act is inapplicable.*fn2 Thus, it is unnecessary to reach the issue of the constitutionality of § 5945.1. This is in keeping with the well-established principle 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. Millcreek Township School District v. Star Theatre, Inc., 172 Pa. Super. 291, 94 A.2d 53, (1953).

Appellant never attempted to examine any rape crisis counselor as a witness. Appellant's basis for inspection of APH's file was to determine whether the victim made statements to staff members at APH bearing on the facts surrounding the alleged incident; a search for the existence of prior inconsistent statements. Therefore, this case is governed by PAAR, and Samuels, and the guidelines set

[ 375 Pa. Super. Page 585]

    forth in PAAR should have been utilized by the trial court in order to determine the scope of the inspection.

Accordingly, the judgment of sentence is vacated. We remand to the trial court for an in camera proceeding consistent with this opinion. If the court concludes that any or all of the materials released to it by APH are statements of the complainant that should have been disclosed to the Appellant and heard by the jury, then a new trial shall be granted. If however, the court concludes that the materials are not statements of the complainant or are statement relating only to counseling services, and thus outside the scope of defense review, the court shall reimpose sentence.

Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

Disposition

Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.


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