Appeal from the Order entering Judgment of Sentence dated November 30, 1987 in the Court of Common Pleas of Erie County, Criminal Division, at No. 645 of 1987 & 424 of 1987.
John H. Moore, Erie, for appellant.
Brad Fowlk, Assistant District Attorney, Erie, for Com., appellee.
Rowley, Del Sole and Montgomery, JJ.
[ 384 Pa. Super. Page 620]
Appellant appeals a Judgment of Sentence imposed following his conviction on numerous charges stemming from
[ 384 Pa. Super. Page 621]
the sexual assault of two young girls. After a review of Appellant's claims, we find it necessary to vacate the sentence imposed and award Appellant a new trial. Based upon our disposition, we will not address Appellant's allegations of error pertaining to the trial court's evidentiary rulings and Appellant's request for a mistrial. However, we do find, contrary to Appellant's claim, that the trial court properly denied Appellant's motion to suppress and we rely upon the thorough discussion provided in the trial court opinion on this matter.
Initially Appellant asserts that the trial court erred in refusing his pre-trial request for discovery. Appellant filed motions for inspection of both Children's Services Records and Rape Crisis Records. Following the dictates of the United States Supreme Court's pronouncement in Commonwealth v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the trial court conducted an in camera inspection of the Children's Services Records. The trial court refused to grant Appellant access to these records based upon its finding that the records contained "no material evidence of an exculpatory nature which would be subject to disclosure." Trial Court Opinion at 3. Since the Supreme Court required "divulgence when a court of competent jurisdiction determines that the material for which production is sought is essential to the accused's defense," Commonwealth v. Carillion, 552 A.2d 279 (1988), we conclude the trial court complied with the law with respect to the Children's Services Records.
The trial court was also presented with a motion for Inspection of Rape Crisis Records. The court denied Appellant access to these records citing the confidential privilege provided under 42 Pa.C.S.A. § 5945.1(b). In his motion Appellant averred that statements made by the alleged victims to the rape crisis center were in the Commonwealth's possession. He stated that these items are discoverable pursuant to Pa.R.Crim.P. 305 and the Superior Court's decision in Commonwealth v. Cacek, 358 Pa. Super. 381,
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A.2d 992 (1986). Appellant was correct. In Cacek this court stated:
The statute [42 Pa.C.S.A. § 5945.1(b)] is simply inapplicable in this matter. 'It grants sexual assault counselors a privilege . . .' Commonwealth v. Samuels, 354 Pa. Super.  at 147, 511 A.2d  at 231 [(1986)] . . . . Here, pursuant to Pa.R.Crim.P. 305, Appellant filed pre-trial Motion for discovery of information within the Commonwealth's possession. 42 Pa.C.S.A. § 5945.1(b) does not grant the Commonwealth a privilege to prevent disclosure of discoverable items and ...