*1
Superior Pennsylvania. Court of
Argued March 1983.
Filed Feb. 1984.
Reargument April 3, Denied 1984. Appeal Petition for Aug. Allowance Granted *3 Corbett, Jr., John H. Defender, Public Pittsburgh, for appellant. Tell,
Melinda G. Assistant District Attorney, Pittsburgh, Commonwealth, appellee. CAVANAUGH, Before and MONTGOMERY, BROSKY JJ.
CAVANAUGH,Judge: Appellant tried George by jury Ritchie was and convict- intercourse, incest, rape, involuntary ed of sexual deviate and corruption of minors. Post-verdict motions were denied appellant was sentenced to a term of three to ten years The appeal incarceration. instant followed. For the rea- below, sons discussed now vacate the judgment we sentence and remand proceedings. for further
The instant charges involving arose out of an incident Jeanette, appellant’s daughter, thirteen the time who was at watching of trial. Jeanette testified that she was television 11, 1979, evening on the entered the appellant June when perform room and demanded that she oral sex on him “or (N.T. 24.) else.” Jeanette testified that on past based she that the “or if experience, knew else” meant that she did not do as she appellant requested, Appel- would be hit. forcibly lant removed Jeanette’s clothes when she refused to do so and then forced her to commit oral intercourse. He Jeanette, then attempted have normal intercourse with over, pain which caused to her. When the incident was appellant go told Jeanette bed. later, her days
Several Jeanette told cousin about sexual contacts between herself and and the cousin told mother, her Jeanette’s aunt. The aunt took Jeanette to the police station.
Appellant denied that he ever molested sexually Jeanette. raised by appellant
One the claims is that *4 appellant rape. evidence was insufficient to convict of Spe cifically, appellant alleges that the Commonwealth failed to reviewing establish In of penetration. sufficiency evi evidence, dence, must as true all the accept we and the therefrom, upon inferences which the factfinder reasonable could its verdict and then ask whether have based evidence, in a most to the light viewed favorable Common winner, to prove guilt wealth as verdict was sufficient Parker, beyond a reasonable doubt. Commonwealth v. 196, 198, 216, (1981); 494 Pa. 431 A.2d Commonwealth Stockard, 209, v. 212-13, 1088, 413 A.2d (1980).
We
in
Ortiz,
stated
the recent case of Commonwealth v.
190,
311 Pa.Super.
193,
559,
(1983),
457 A.2d
560-61
that:
is quite clear ...
definition
“sexual
[i]t
§
intercourse” found at
Pa.C.S.A.
does not
[18
3101]
specify “penetration
vagina,”
of the
but
specifies
instead
penetration
“some
slight.”
however
...
Common-
Bowes,
v.
166 Pa.Super.
(1950)
wealth
It
testimony
is clear that
the victim alone
can
penetration
be sufficient
establish
so as
sustain a
conviction of rape.
Crider,
v.
Commonwealth
Pa.Su
per.
Appellant next claims that trial court erred allow- ing sexually that had been testify Jeanette for period her three four times a week a molesting or not about four in fact that she could years, spite one the exact attack other than the dates remember 11, on June it is prosecution clear “in a for incest
It is to introduce ‘competent for commonwealth evidence to the commission parties prior illicit relations between ” in the of the offense laid indictment.’ Common specific 1233, Buser, 451, 455, Pa.Super. 419 A.2d wealth v. 277 Bell, 405, (1980) (quoting 1235 Commonwealth v. 166 411, 123, (1895), 123 Leppard, 31 A. and Commonwealth v. 317, 319, 424, (1979)). 413 A.2d 425 Such Pa.Super. or passion propensity is relevant to “show testimony particular person illicit relations concerned sexual with Buser, in on v. the crime trial.” Commonwealth at on (quoting 419 A.2d McCormick Pa.Super. § 1972)). ed. Nor the fact (Cleary 190 at 449 does Evidence previ could remember the exact dates of Jeanette not testimony ous sexual attacks render inadmissible. Niemetz, Pa.Super. v. Commonwealth Appellant Leppard, admits that Commonwealth v. Buser, supra, specifically supra, is question hold such as that admissible but that evidence right holdings violate his to confront he contends that these accuser, should therefore be followed. his and that argument his and decline persuaded by We are not therefore, was, There no error precedent. overrule prior at testimony regarding sexual admitting Jeanette’s tacks. the trial by appellant claim raised
Another him permit to enter into evidence refusing court erred to other individuals. The certain written Jeanette letters showing purpose for the that Jean letters were offered persons outside with her home ette communicated freely *6 and failed to mention the either sexual attacks by her father or the fear she of allegedly Appellant had him. to hoped testimony raising discredit Jeanette’s a by ques- tion as to she why waited so to the long report sexual attacks which had allegedly been for several occurring years. The trial held that the letters were not rele- vant, and therefore to refused admit them in evidence.
“Any analysis the. a admissibility particular type evidence must a start with threshold as inquiry to its relevance and probative value.” Commonwealth v. Wal- zack, 210, 218, 468 914, Pa. 918
Determination of the relevancy of evidence offered at requires trial a two-step analysis. It must be determined if first sought the inference to be raised by evidence upon bears matter and, in issue in second, the case whether the “renders evidence the desired inference more probable it than would be without evidence.” Com- Stewart, monwealth A.2d (1975) (citations omitted). The did not contend that Jeanette had no opportunity report to the sexual molestation anat earlier date or that appellant prevented had her making from complaint. Jeanette freely admitted that she had numerous and frequent contacts with members of family her and friends during period of time in question. She ex- plained that she was afraid her father and stated that she gone never would have to police if she not had been taken to them her aunt. had already
Since Jeanette as testified to her freedom to others, contact admission of the letters in question would not have made the desired inference probable “more than it would be without the evidence.” McCormick on Evidence § 1972). (Cleary ed. Thus there was no abuse of on part discretion of the trial court in refusing to admit the letters.
Appellant also claims that trial court erred in permitting the Commonwealth to introduce testimony con- certificate, was
trary
to Jeanette’s birth
the effect which
her,
incest.
support
charge
to
in order to
its
bastardize
Ritchie,
testify
mother,
permitted
Helen
Jeanette’s
was
Ritchie,
Bills,
George
and not Thomas
whose
certificate,
the natural
appears
name
on the birth
was
she
although
father of Jeanette. Ms. Ritchie testified that
born,
when
was still married to Thomas Bills
Jeanette was
years
she
relations with him
three
had
had sexual
appel-
further testified that
prior to Jeanette’s birth. She
had
lant
man with whom she
had sexual
only
was
conception
around the time of Jeanette’s
relations
appellant had admitted not
her but
the Welfare
only
Mr. Bills testi-
Department, that he was Jeanette’s father.
*7
had
with
fied that he had not
sexual relations
Jeanette’s
to
year
a
and a half
Jeanette’s
prior
mother for
least
to him
he
birth,
had admitted
and that
ap-
Ritchie
(appellant) was
father. Ms.
married
Jeanette’s
a
from
Bills.
obtaining
after
Mr.
pellant
divorce
testimony
the
should
claims that
outlined above
Appellant
claiming
authority
that “no
exists
permitted,
not have been
to
prove
a
in order
allowing
for
child to be bastardized
25).
Brief at
(Appellant’s
crime of incest.”
of
ex rel.
ignores
holding
Commonwealth
Appellant
(1969),
293,
In September, Child Welfare an Services conducted examination of younger Jeanette her two brothers at the Ritchie home. The examination was prompted by a report of child abuse from an unidentified source and was CWS’ contact only with Jeanette. Appellant’s trial counsel subpoena served a upon requesting CWS turn over to him any records pertaining Jeanette. CWS produce refused to the records provi- based on a statutory sion regarding confidentiality Appel- the records.2 lant’s motion sanctions was denied after the court reviewed the records in camera and found that “no medical being records by are held Child Welfare Services that would
be
benefit to the defendant
in the case.” Appellant
contends that his counsel should
been
permitted
have
himself,
minimum,
review the files for
that,
at a
he
should
granted
have been
access
verbatim state-
ments made
prosecutrix contained
the file.
Appellant’s right
weighed
confrontation must be
against
maintaining
the state’s interest
the confidentiali
Alaska,
of the information in
ty
the records. Davis
1111-1112,
U.S.
94 S.Ct.
2. 11 P.S.
states that
made
to the Child
§
be
only
Protective Services Law shall
and shall
made
confidential
be
persons
agencies.
certain
enumerated
or
available
to
Under
2215(a)(5),
reports
compe-
the
be
shall made available to a court
§
pursuant
jurisdiction
a
tent
court order.
entitled
is
appellant
In
what information
determining
Court’s
Pennsylvania Supreme
the
guided by
to we are
Rape,
Against
Action
holding
Pittsburgh
Matter “the
in that case was
The issue
428 A.2d
may
a
trial
rape
a
over
presiding
extent to which
impeach
the
seeking
for the accused
authorize counsel
crisis center
inspect
rape
a
credibility
complainant
of the
complainant
the
containing
file
communications between
Pa. at
center
rape
personnel.”
and
crisis
interest”
the “societal
recognized
The court there
at 127.
crisis center
rape
promoting
communications between
assistance, but
seeking the center’s
persons
and
personnel
in the
societal interest
“compelling
the
recognized
it also
justice.”
of. criminal
system
function of our
truth-seeking
protect
In order to
both
19,
The procedure employed the trial in by the instant case not to protect appellant’s spite was sufficient in rights “finding” of the court’s that the nothing records contained appellant. that benefit would As the Supreme Court stated in Pittsburgh Matter Against Rape: Action not for is the trial court to review these statements
[i]t
eye
with an
the utility
toward
or permissibility of their
trial____
ultimate use at
“Prior
by
statements may,
or
conjunction
themselves
in
with other information
defense,
by
open up
known
valuable lines of cross-ex-
defense,
amination for the
though
even
the statements
matters not directly relating
involve
to a witness’ direct
testimony____ ‘Whether the
prosecu-
statements
tion’s witnesses
helpful
would have been
to the
is
defense
question
not a
to be determined by the prosecution
byor
the trial court. They
reading
would not be
the state-
eyes
with
ments
a trial
engaged
advocate
defending a client.
Matters contained
a witness’s
statement may appear
some,
innocuous to
but
great
have
significance
viewing
to counsel
the statements from the
perspective
an advocate
the accused
about
”
cross-examine a witness.’
15, 28-29,
(citations omitted).
In order review, the entire record reviewed appellate and allow sel pre- should be proceeding the court its camera by in order to may sealed This record be appeal. for served addition, counsel should be confidentiality. In its protect the rele- argue in order to access this record permitted this decision. in accordance with of the material vance to this record for Counsel, course, permitted access are by the confiden- are otherwise bound only and purpose this the material in the record. nature of tial is and case remanded of sentence vacated Judgment We not retain opinion. do consistent with this proceedings jurisdiction. dissenting state-
MONTGOMERY,J., concurring files ment. dissenting:
MONTGOMERY,
concurring and
Judge,
entitled to
majority
appellant
agree
I
with
in the
appear
the victim which
made
direct statements
by the
not made
I
make a distinction
files. would
CWS
state-
only
those
however,
and limit
majority,
is,
sexual
question,
on the offense
bearing
ments
abuse,
than permitting inspection
rather
and use of state-
in general.
ments regarding “abuse”
Superior of Pennsylvania. Court
Argued Jan. 1984. Feb.
Filed Kocsis, III, Athens,
John for appellant. Franz, Lore
Emy Sayre, appellee.