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filed: December 22, 1988.


Appeal from the Order of the Court of Common Pleas, Lawrence County, Criminal Division, at Nos. 667, 667B, C, D, F, H, O, P, R, T, U, V, X, Z, 667 AA, AF, AH, AG, AE, AJ, and AK of 1983.


Annette M. Hutchison, Assistant District Attorney, New Castle, for Com., appellant.

Larry P. Gaitens, Pittsburgh, for appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Wieand, Olszewski, Kelly, Popovich, Johnson and Melinson, JJ. Cirillo, President Judge, files a concurring statement. Johnson, J., concurs in the result.

Author: Brosky

[ 380 Pa. Super. Page 460]

This appeal is taken by the Commonwealth of Pennsylvania from an order granting appellee a new trial after appellee's conviction for multiple counts of indecent assault, indecent exposure, corruption of a minor, statutory rape, involuntary deviate sexual intercourse and other related offenses committed upon a ten year old female victim.

The Commonwealth argues that appellee's non-accessibility to the entire Lawrence County Children's Services (Children's Services) file pertaining to the victim does not warrant the grant of a new trial here. Specifically, the question for consideration before the court en banc is whether, pursuant to Article I, Section 9 of the Pennsylvania Constitution, appellee's access to the contents of the Children's Services file is mandated under the circumstances. Due to the unique procedural posture of the instant case, as delineated infra, we affirm the order of the trial court awarding appellee a new trial; yet, for reasons appearing below, we decline to hold that appellee's right to inspect the contents of the Children's Services file in toto is compelled by Article I, Section 9 of our State Constitution.

[ 380 Pa. Super. Page 461]


The procedural history leading up to the instant appeal is as follows: Subsequent to formal charge of the above offenses, appellee filed several pre-trial motions. Included among these were a Motion for pre-trial discovery and inspection and a Supplemental Request for omnibus pre-trial relief. In the former Motion, appellee requested, inter alia, "[a]ll written or recorded statements and substantially verbatim oral statements" of intended Commonwealth witnesses and "[t]he written and/or recorded statement of [the victim]." Appellee requested in his supplemental prayer for relief, inter alia, "access to the records of the [Children's Services] with regard to [the victim] to examine to learn [sic] if she made any statements about abuse concerning [appellee]." Along with this, appellee asserted that "any such statements must be submitted to [him] for possible use for trial . . . ."

Pursuant to this court's decision in Commonwealth v. Ritchie, 324 Pa. Super. 557, 472 A.2d 220 (1984), the trial court interpreted the Sixth Amendment right to confront under the Federal Constitution to mean that appellee must be permitted to inspect those portions of the Children's Services file which contain statements made by the victim regarding any alleged abuse by appellee. Consequently, after conducting an in camera inspection of the Children's Services file to ascertain the existence of any such statements, a remedy fashioned by this court in Ritchie, the trial court, by Order of May 9, 1984, released to appellee's counsel portions of the Children's Services file limited, however, to the victim's verbatim statements of child abuse committed by appellee.

Appellee stood trial and was subsequently convicted by a jury of twenty counts of sex-related offenses. Following conviction, appellee filed post-verdict motions. While disposition of these post-verdict motions was pending, the Pennsylvania Supreme Court, having allowed the Commonwealth's petition to appeal our disposition in Ritchie, supra, handed down its decision in that case. See 509 Pa. 357, 502

[ 380 Pa. Super. Page 462]

A.2d 148 (1985). This resulted in the issuance of a series of orders by the trial court. The first one, dated January 20, 1986, ruled the Commonwealth to show cause why appellee, through counsel, should not have access to the complete Children's Services file of the victim and, further, why appellee's counsel should not be permitted to argue the utility, if any, of the contents of the file for the purpose of cross-examination or other evidentiary objectives consistent with the Pennsylvania Supreme Court's directive in Ritchie, supra.

Subsequently, by Order of March 14, 1986, and with the apparent consent of the Commonwealth, the trial court ordered the Children's Services file relating to the victim to be turned over, all inclusively, to appellee's counsel for examination at his office. The court's order included a caveat to appellee's counsel not to disclose any of the material contained therein to any other person. Appellee's counsel was then ordered to file with the trial court a statement concerning whether or not appellee had been prejudiced at his trial by the non-disclosure of any material in the file.*fn1 Pursuant to yet another Order dated April 16, 1986, the trial court advised, after reviewing the April 10, 1986 letter submitted by appellee's counsel (see note 1, infra) that it would conduct its own in camera examination

[ 380 Pa. Super. Page 463]

    of the subject file to determine whether appellee's allegations of prejudice were substantiated. Finally, under Order filed January 16, 1987, the trial court, after in camera inspection of the file, granted appellee a new trial. It is from this Order that the Commonwealth has filed its timely appeal.

After the Notice of Appeal had been docketed with this court, the United States Supreme Court filed its decision in Ritchie, infra, affirming the Pennsylvania Supreme Court's holding that Ritchie was entitled to know whether the Children's Services file contained information that may have changed the outcome of his trial had that information been revealed to him. However, the High Court disagreed with the breadth of Pennsylvania Supreme Court's mandate permitting access by Ritchie's counsel to the Children's Services file and, therefore, reversed that determination. The Court grounded its holding on the non-applicability of the confrontation and compulsory process clauses of the Sixth Amendment to the United States Constitution to Ritchie. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).


At this juncture, and in order to complement our own analysis, we deem it useful to delineate the various rationales expressed by the Ritchie courts.


Ritchie was charged with various sex offenses committed against his twelve-year old daughter. During the pre-trial discovery stage of his case, Ritchie sought access by subpoena to the Children's Services records concerning his daughter relative to the current complaint as well as to a medical examination report contained in an earlier, separate report of child abuse. Children's Services refused compliance with the subpoena citing the confidentiality of the records pursuant to the Child Protective Services Law, 11 P.S. § 2201 et seq. Ritchie then filed a Motion for sanctions

[ 380 Pa. Super. Page 464]

    arguing entitlement to the information in the agency's files "because the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence." Pennsylvania v. Ritchie, supra, 480 U.S. at 44-45, 107 S.Ct. at 995. The trial court, without conducting its own independent examination of the file, accepted the assertion of the agency representative that no medical reports existed in the file which would be of benefit to Ritchie. Ritchie then went to trial and was convicted on all counts. He was sentenced to a term of incarceration of three to ten years.


On appeal from his judgment of sentence to this Court, Ritchie contended that his Sixth Amendment right to confrontation had been violated by reason of the inaccessibility of the contents of the agency file to him for trial preparation. While we agreed that the confidentiality restrictions contained in the Child Protective Services Law (11 P.S. §§ 2214 and 2215) must defer to Ritchie's Sixth Amendment rights, nevertheless, we did not interpret this constitutional provision to authorize the blanket disclosure which Ritchie had sought. Instead, we fashioned a two-step procedure, followed by the trial court here, in which the trial court, on remand, would inspect, in camera, the agency file to ascertain the existence or not of verbatim statements (or the equivalent) made by the victim. If such statements were extant, then the trial court was directed to make available to Ritchie's counsel only that part of the agency file containing those verbatim statements (or their likes). This court further directed that the entire agency file be submitted to Ritchie's counsel for the limited opportunity to argue content relevance. The Commonwealth could then counter that the failure to disclose amounted to no more than harmless error.


The Commonwealth then appealed to the Pennsylvania Supreme Court. That court ...

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