*4 HOFFMAN, CIRILLO, JJ. Before TAMILIA and HOFFMAN, Judge: of August judgment an from
This is Patosky, Fred Appellant, indecent W. for assault.1 sentence for our following issues review: presents the in Com- this Honorable Court the decision of I. Should camera to allow an in Kyle be reversed monwealth records? alleged psychiatric of the victim’s review between the absolute communication privileged A. Does appellant’s constitutional psychiatrist and violate patient confrontation, due compulsory process, to effective rights of effective assistance counsel? process and hearing an denying evidentiary the Court B. Did err necessity privilege? of an absolute to determine Does the absolute violate the doctrine privilege C. powers? of separation of constitute an abuse privilege
D. Does the absolute power? police trial deny appellant a fair
II. Did Court err and him to be on a collateral issue? allowing impeached fair trial deny appellant a III. Did Court err impeached be of appellant by proof because was allowed to good of for reputation conduct refute his evidence specific peacefulness? appellant fair trial deprive Did the Court err and
IV. alleged relative to the victim’s evidence was allowed because almost registered complaint at the time she demeanor court months after the offense because the alleged two requested? instruct on as failed to this issue failing jury, to instruct the Did the Court below err V. testimony alleged victim requested, to view the as of her make a extreme caution because failure to with of indecent complaint charges assault? prompt Brief at 3. Appellant’s case as follows: trial court recited the facts
The Pa.C.S. *5 hours during early morning Eleanor Paine testified that and both of whom [appellant] she November Airlines, in the break room employees were of United were freight Pittsburgh at the Airlines air dock at Greater United that her fin- Airport. International Ms. Paine commented started to rub her hand. He gers [appellant] were stiff and to began her hand with both of his hands and grabbed then Ms. Ms. Paine toward a cot which was the room. pull Instead, Paine told the to leave her alone. [appellant] that he [appellant] put responded his arm around her and pulled owed him.” He then “collecting pay was she put the cot and on of her. He his got top victim down onto knees, her pulled legs up, pinned hands under her her and un- [Appellant] to the cot. then unbuckled her belt it,” several times zipped pants. yelled, “Stop her Ms. Paine and said that he was [appellant] repeatedly but continued began feel Ms. Paine just trying good. to make her When back, he off [appellant] hurting got was complain but he then to rub up, began of her and allowed her to stand the crotch area of her Ms. pants. her breasts and he kissed until later. did not the incident two months report Paine Opinion Trial Court 3. 17, 1991, a was filed January complaint against appellant
On assault, him and the simple with indecent assault2 charging trial, jury offense of harassment.3 summary Following acquitted was convicted of indecent assault and appellant motions were filed and denied. simple assault.4 Post-verdict (3) (6) subsequently sentenced to three to six Appellant was with a recommendation of alternative imprisonment, months housing facility. timely appeal in a treatment This followed. argues rights first that his constitutional confrontation, compulsory process, process effective due trial of counsel were all violated when the effective assistance § 2. 2701. 18 Pa.C.S. §
3. 18 Pa.C.S. addition, summary appellant guilty found In the trial court offense of harassment. court his attorney did not allow conduct an camera psychiatric disagree. review of the victim’s records. We In legislature amended Pa.C.S. read as follows:
No or ... psychiatrist person who has been licensed be, practice shall consent psychology without written of client, his examined or criminal as to any any civil matter acquired information in the of professional course his ser- vices in behalf such client. The and confidential relations communications between a or psychologist psychiatrist and his client be on shall the same basis as those provided prescribed lawby attorney between an and client. §
42
Smith,
In
Pa.C.S.
Commonwealth v.
414 Pa.Super.
208, 213,
939,
(1992),
denied,
624,
606 A.2d
942
533 Pa.
(1993),
not this denial access.5 been violated argument fails.6 statute, the enacting also claims disagree. We
legislature police power. abused its An not deemed unconstitutional assembly act of will be constitution. clearly, plainly unless it violates the palpably, 150, 155, Pa. 425 A.2d Exchange, Erie Hayes v. Insurance (1981). 419, alleging on those The burden rests v. Sut unconstitutionality of the enactment. Commonwealth (1977). 256, 260-61, 780, ley, 474 Pa. power police grants legislature The doctrine of health, mor safety, welfare and power regulate public Bonadio, Pa. 415 A.2d als. Commonwealth v. (1980). may legislature police power The its through legislation prohibited. has been legislate except where such Lloyd Fishinger,
(1989),
statute violates the doctrine of of disagree. we was not intended separation powers
The doctrine of the from absolutely government seal off the three branches of another, one as it intended that there would be a obviously reciprocity between the vari- degree interdependence Sutley, ous branches. Commonwealth Moreover, one of the most distinguished Roberts, the jurists, explained interdepen- Justice Samuel independence judicial legislative dence and between the branches as follows:
Legislative infringement
province
judiciary,
on the
of the
liberties,
and the concomitant threat to individual
take
may
First,
Legislature may
one of two forms.
take action
impairs
judiciary,
by
which
of the
either
independence
functions,
non-judicial
by
requiring
performance
interfering
judiciary
perform
with the
of the
its
power
Second,
Legislature may usurp
essential functions....
power
judiciary
taking
judge
it
itself to
upon
of ...
general
individual cases....
Enactment
a rule of
does not take on one of these two
application [which
forms]
is a
function.
proper legislative
278-79,
(ROBERTS, J.,
Sutley,
As the enactment of 5944 does not the Pa.C.S. of of independence judiciary usurp power the the the cases, judiciary by taking over the individual this statute is passage legislation, Representative discussing 7. When the of Wes- this ton, presented who 42 the house member the recent amendment to 5944, necessary Pa.C.S. stated that the amendment was for individu- discussing embarrassing als to feel comfortable the often details of psychiatrists. Legislative their sexual assault cases with See 1989 p. Journal-House at 544
constitutionally Consequently, argument valid. is without merit. the trial court erred argues next to be on a collateral issue.
allowing appellant impeached erroneously that the trial court admit Specifically, he asserts testimony regarding appel at trial the of two witnesses ted lant’s “off-color”8 statements to them. prior
Preliminarily,
questions concerning
we note that
admissibility of evidence are within the sound discretion
court,
on
absent a clear
appeal
trial
and will not be reversed
Co.,
v. West Penn Power
409
Engle
abuse
discretion.
denied,
462, 481,
290,
(1991),
299
Pa.Super.
appeal
598 A.2d
(1992).
669,
If
into
The common law has of a long right an impeach credibility by introducing adverse witness has made one or more evidence that the witness statements trial, testimony long inconsistent with his so as the to the issues in the case inconsistency is not collateral statement, i.e., It is the substance of the that it conflicts trial, testimony with the of the witness at that determines ... does not admit admissibility its witness [where] statement, may proved by the inconsistent it be making evidence, testimony person extrinsic such as the whom the statement was made. Brown,
Commonwealth
1097, sexually suggestive
8. These statements refer to
comments.
*9
case,
In the instant
appellant testified on direct examination
it was not his practice
jokes
to tell “off-color”
in the
presence of the victim. N.T.
at 337. When the
2/19/93
prosecutor asked him on cross-examination what he had meant
statement,
by
not,
appellant
had,
stated “I do
never
never
rarely
have or
ever
spoke
have
anything like that to women.”
N.T.
at 382. These comments “opened the door” to
2/19/93
the Commonwealth’s introduction of
testimony
the
of the two
women, who
appellant’s
contradicted
by
statement
testifying
that appellant had previously made inappropriate “off-color”
statements to them. As appellant was charged with “harass-
ment,” these “off-color” statements were not collateral to the
case,
in
thus,
issues
they
proven
were allowed to be
by
Brown,
extrinsic
evidence.9
Appellant next contends that he was denied a fair trial because the introduction of his good reputation peaceful for ness was erroneously impeached through proof of specific conduct. We disagree. of Pennsylvania
Commentators law have stated that: It is a well-settled rule that evidence of the accused’s bad character is not admissible a criminal case unless one of exceptions First, three applies. may accused elect to introduce evidence of his or good character.... [One of the consequences] of introducing evidence of good charac- ter is that prosecution may call rebuttal witnesses to testify that the accused’s poor. character is Like the ac- character, cused’s evidence of good the prosecution’s rebut- testimony tal is subject to restrictions. The may witness 2709(a)(3) Harassment is defined in 18 Pa.C.S. as follows: § 2709 Harassment when, person harass, summary A commits a offense with intent annoy person: or alarm another (3) engages he repeatedly a course of conduct or commits acts seriously annoy which alarm person such other and which serve legitimate no purpose.
testify reputation community, to the accused’s in the only ... evidence must be restricted to the charac- rebuttal ter traits raised accused.... Poulin, (1987), § Pennsylvania & Evidence 404.2 Char-
Packel 149-50. acter Evidence *10 case, appellant In the called witnesses who instant several in a character reputation peaceful testified his for community. Subsequently, the Commonwealth asked their witness, Cavallo, Cathy appellant’s reputation rebuttal about transpired: for The conversation peacefulness. following you Are with Q: [appellant’s] reputation among familiar goes? work as far as place peacefulness A: Yes. what,
Q: reputation And what would that be? very Very negative, poor. A: at 407. when trial Subsequently, appellant’s N.T. 2/19/93 impeach credibility, counsel Cavallo’s Cavallo attempted reputation testimony testified that this evolved from conversa- with other individuals at United Airlines. See N.T. tions 409, at These several “off- 415. individuals discussed 2/19/93 other color” remarks had made to See N.T. appellant people. specific at discussion of these Cavallo’s 2/19/93 purpose conversations was admissible because defense credibility counsel’s examination was test the of the witness reaching peace- about for opinion appellant’s reputation her fulness, guilty not was of the instant prove appellant to. Adams, Pa.Super. See case. Commonwealth (1993) (cross-examination 626 A.2d of character is purpose witness is allowed where actual examination reputation is with concerning test whether witness familiar testified), which he has Pa. trial court not abuse its Accordingly, did testimony. this admitting Engle,
discretion
481, A.2d at
testimony regarding
next contends that
complaint
when
late
registered
victim’s demeanor
she
he
Specifically,
admitted into evidence.
not have been
should
disagree.
We
was irrelevant.
testimony
that such
claims
should
that all relevant evidence
have stated
We
Id. at
rule bars its admission.
specific
admitted unless a
be
if it tends to
Evidence is relevant
Appellant finally jury. the charging errors when must contain a charge jury to the
A trial court’s
Cope
v.
of the law. See Commonwealth
correct statement
(1988) (defendant
382, 391,
land,
554 A.2d
Pa.Super.
in jury
of law
trial because correct statement
denied new
(1989).
denied,
A
A.2d 1165
523 Pa.
charge), appeal
in
the
charging
form of expression
is free to use its own
court
explains
accurately
clearly
adequately,
as it
jury
long
as
Whitner,
278 Pa.Su-
the
of law. Commonwealth
principle
it oc-
two
after
reported the incident almost
months
10. The victim
N.T.
at 179.
curred. See
2/19/93
(1980).
175,182,
per.
In order for a
party
trial,
be entitled to a
jury
new
instruction must be
error,
in
fundamentally
or have misled or
jury.
confused the
Noyes
592, 601,
v. Cooper,
579 A.2d
(1990),
(1991).
527 Pa.
Our Supreme Court has stated that “where the actual case, occurrence of assault is at issue in [an] the trial judge is required charge jury as to the relevance of a delay in disclosure and the of a significance prompt com- Snoke, plaint.” Commonwealth v.
295, 298 case, In the instant the trial court charged jury on the issue of prompt complaint as follows:
The evidence of delay Eleanor Paine’s in making a com- does not plaint necessarily unreliable, make her testimony but may remove from it the assurance of reliability accom- panying the prompt complaint outcry which the victim of a crime such ordinarily as this would be expected make.
Therefore, delay making complaint should be considered in evaluating testimony her and in deciding whether the act occurred at all.
You must not consider Eleanor Paine’s delay making a complaint as conclusive evidence that the act did not occur for the failure to make a complaint properly and the nature explanation of her for failing complain promptly are simply factors which bear upon credibility her and on the believability testimony, and all necessary factors must be considered —must be together considered *12 with all of the you evidence that have to in consider this case.
N.T. at 532. As the jury charge conveyed the correct 2/22/93 law, of statement the the trial court obligation. satisfied its Accordingly, appellant’s argument fails.
Appellant also contends that in the trial court erred rejecting points his for charge regarding the victim’s “res Specifi- incident to Smalich. she gestae” reported when at that contends that as the victim’s demeanor cally, appellant excep- any hearsay not fall into was irrelevant and did time his of tion, they rejected points when the trial court erred in testimony, this disregard charge, instructing jury alternative, it with caution. to view inadmissi relevant is nonetheless Evidence that is v. rule. Commonwealth hearsay it violates the ble when (1992). Rush, 498, 504, Hearsay is 605 A.2d the truth prove offered an out-of-court statement Michaux, Commonwealth v. matter asserted. (1987), Pa. A is satisfied nonver A.2d 1329 statement Packel a communication. of a intended as person
bal conduct (1987), § Poulin, Hearsay Pennsylvania Evidence & Here, reporting demeanor when the victim’s nervous not intended as it was was not statement incident Smalich Hence, hearsay. it cannot be considered as a communication. stated Therefore, and as hearsay testimony as was not relevant, court did not err entirely the trial previously, charge points on the two refusing charge jury Consequently, appellant’s argument by appellant. submitted merit, of sentence is affirmed. judgment has no Affirmed.
CIRILLO, J., statement. dissenting files a CIRILLO, Judge, dissenting. right I that the fundamental respectfully
I dissent. believe accuser’s right than the to have the greater to freedom is on this issue has background My position remain inviolate. upon, as seen Commonwealth previously expounded been Kennedy: constitutional ... that an accused’s state agree
I cannot interest in the treatment must bow to the state’s rights report who being well of those safety and the victims balancing and difficult cognizant I am of the delicate abuse. right to defendant’s fundamental interests —a significant *13 550 hand, right privacy
a fair trial on the one and a victim’s following integrity a terrible assault on his or her on however, rights, constitutional other.... The defendant’s state, by way legislature judicia- must The of its or prevail. to constitu- ry, deprive person right cannot of his compel- tional due I would find that the state’s process.... ling confidentiality counseling interest relation- interest ship yield greater promoting must the defendant’s constitutional See Com- protecting rights. Carillion, v. A.2d Pa.Super. monwealth (1988) (Cirillo, P.J., concurring). 95, 117-19, v. Kennedy, Commonwealth (en (1992) banc), A.2d alloc. (1992) (Cirillo, J., concurring). that, case, I in the
Consequently, present Patosky’s believe confrontation, rights compulsory constitutional effective trial court process, process and due were violated when the an in camera attorney did not allow his conduct review victim’s records. alleged psychiatric Kennedy See Carillion, (Cirillo, J., supra concurring).
v. CERNY, Appellant.
Frederick F.
Mary CERNY, Appellee, T. CERNY, Appellant. F. Frederick Superior Pennsylvania. Court of
Argued Nov. Filed March