Joseph S. Cacek was found guilty after a jury trial of rape, 1 simple assault 2 and terroristic threats 3 with respect to his conduct toward his stepdaughter from the time she was twelve until twenty-two years of agе. Post-trial motions for new trial and/or arrest of judgment were filed and subsequently denied. Thereafter, Appellant was sentenced to a term of imprisonment for nоt less than four nor more than eight years for rape, a consecutive two year period of probation for simple assault and a two year pеriod of probation for terroristic threats to run concurrent with the period of probation for simple assault.
Initially, Appellant contends the trial cоurt erred in denying his pre-trial Motion for discovery of any statements made by the victim to personnel of the Erie County Rape Crisis Center in the possession of the Cоmmonwealth. In denying the Motion the trial court reasoned, “that such statements are specifically determined to be confidential by legislative enactment and not subject to pre-trial discovery. (42 Pa.C.S.A. § 5945.1(b)).” (Trial Court Opinion at 6). In this respect the trial court erred and for the following reasons, we vacate the judgment оf sentence and remand for proceedings consistent with this opinion.
*384 The Confidential Communications To Sexual Assault Counselors statute provides in pertinent рart:
(b) Privilege — A sexual assault counselor has a privilege not to be examined as a witness in any civil or criminal proceeding without the prior written consеnt of the victim being counseled by the counselor as to any confidential communication made by the victim to the counselor or as to any advice, rеport or working paper given or made in the course of the consultation.
42 Pa.C.S.A. § 5945.1(b).
Appellant contends the trial court erred in denying his motion as 42 Pa.C.S.A. § 5945.1(b) “infringes upоn the right of confrontation guaranteed by the Sixth Amendment without the justification of a compelling state interest....” (Appellant’s Brief at 15).
“[W]e take note of the well-established proposition 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.”
Commonwealth v. Samuels,
Appellant next asserts the court erred in denying a pre-trial Motion to Suppress a statement hе gave to police officers and in subsequently denying his Motion for a Mistrial when the statement was admitted into evidence at trial. It is contended that considering thе totality of the circumstances, i.e. that he did not sign a waiver form, that he has limited reading ability, and that he was nervous, the statement was involuntary.
In reviewing the ruling of a suppression court, the reviewing court’s initial task is to determine whether the factual findings are supported by the record. In making this determination, if the suppression сourt held for the prosecution, the reviewing court must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole remains uncontradicted.
Commonwealth v. Monarch,
The uncontradicted testimony of the police officers аt the suppression hearing was that they read Miranda warnings to Appellant who indicated he understood them, and that he then proceeded to make a statement. Before Appellant had an opportunity to sign the waiver form, an investigator *386 from the Public Defender’s office arrived and inquired whether Appellant wаnted to see an attorney. Appellant replied he did and the interview was concluded.
The record of . the suppression hearing as well as the transcript of trial testimony reveal Appellant was informed of his rights and made a brief inculpatory statement prior to deciding to consult an attorney. There is nо record of threats, mistreatment or coercion. The trial court did not err in denying Appellant’s Motion to suppress his statement and subsequently denying his Motion for a mistrial.
Appellant claims the court erred in denying a Motion to excuse or question a potentially biased juror.
A conversation took place bеtween a tipstaff and juror which revealed the juror had participated in a protection from abuse hearing. When informed of this by the trial judge, Appellаnt’s counsel moved to excuse the juror on the basis that evidence of domestic abuse had been introduced at Appellant’s trial. The motion was deniеd and the court noted the juror had been asked whether she had ever been the victim of a crime and she had not indicated that she had been. The court furthеr noted that a protection from abuse proceeding is not criminal in nature. Counsel then sought to question the juror as to the possibility of bias. The court refusеd to permit questioning.
The trial court exercised discretion apparently satisfied the juror had not been the victim of a crime. “The discharge of a juror is а matter within the sound discretion of the trial judge and the lower court will only be reversed for an abuse of that discretion.”
Commonwealth v. Graves,
Finally, it is argued that trial counsel was ineffeсtive for failing to ascertain by proper questioning during voir dire whether the juror had previously been involved in any court proceeding. “When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of inef
*387
fectiveness is of arguable merit....”
Commonwealth v. Buehl,
The case is remanded to the trial court for proceedings consistent with this opinion. Jurisdiction relinquished.
Notes
. 18 Pa.C.S.A. § 3121(1 and 2) provides:
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse: (1) by forcible compulsion. (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.
. 18 Pa.C.S.A. § 2701(a)l provides:
(a) Offense defined. — A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.
. 18 Pa.C.S.A. § 2706 provides:
A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.