*1 merged, especially evidence claim should not be to do where so deprive litigant appellate would review of the claim. reason, For this I dissent. joins NEWMAN dissenting opinion.
Justice
Submitted 2000.
Decided Dec. *2 Sloane, Gricar, Ray Attorney, Stephen P. Belle- F. District fonte, Office, Attorney’s for Com. District Anthony McGlaughlin, College, for Jon
Ronald S. State Spetzer. CASTILLE, NIGRO, CAPPY, ZAPPALA, C.J., and
Before NEWMAN, EAKIN, JJ. SAYLOR THE
OPINION OF COURT Justice CASTILLE. appeal issue whether the Court erred in
granting grounds new trial on trial counsel was ineffec- failing for object, under the com- tive confidential munications set forth in Pa.C.S.
voluntary testimony appellee’s relating wife statements charges made to her while him pending against rape year-old stepdaughter, his twelve B.G. The challenged statements, many of which by police were recorded (1) consent, wife’s included: admissions to (2) having B.G.; raped plan rape details of to abduct and (3) stepdaughters; B.G. another of his minor attempts recanting intimidate into B.G. their accusa- below, tions. For the set forth reasons we conclude that *3 wife, challenged to his all of statements past referred to his and future-intended sexual assaults stepdaughters, his minor properly at trial. admitted Accordingly, we vacate the decision of Court on question and court remand for proceedings consis- Opinion. tent with this wife,
Appellee’s Kim, who had been to appellee married years by trial, four marriage time described their violent,” very sexual, “sadistic and as she repeated endured physical and mental abuse at the hands her husband. Throughout the marriage, course their appellee would order office,” Kim to “step into which point appellee would [his] her into the physically take bedroom of their home and assault her.
In January Kim’s daughters previous four from a marriage, including twelve-year-old B.G., traveled from Ken- tucky they father, where biological lived their Pennsyl- vania, intending stay Spetzers May. with the until Spetzers in a lived two-bedroom mobile home with their own children, two small leaving space girls, little for the four older slept bags who in sleeping Spetzers’ on living room floor. On Saturday April, on evening living B.G. room awoke Al- vagina. her and appellee fondling to find breasts
floor stop, appellee per- though repeatedly appellee asked B.G. protests. despite sisted her incident, told fondling appellee days a few
Within pretext room on the younger stepbrother’s in her sleep B.G. of a fire in the the child the event that she could assist time, Kim, normally who At around the same mobile home. p.m. midnight, the hours of 10:00 bed between went asleep p.m. p.m. and 8:00 She later falling between 7:00 began drugging her appellee surreptitiously been learned Appellee, who also drowsy. that made her with chemicals going to normally p.m. p.m., began and 11 retired between time, period 2:30 and 3:00 a.m. the same between bed to wear daughters told Kim that he did not want her appellee bed, claiming would cut bras bras underwear too creating and the girls’ off their circulation underwear laundry. much stepbrother’s in her days began sleeping
A after B.G. few bedroom, sleeping room while B.G. was appellee entered the during raped knifepoint. B.G. could scream B.G. sock into her appellee attack because forced folded tube mouth, her split which caused the sides of mouth bleed. to kill ruin life rape, appellee threatened B.G. or After sexually anyone. Appellee again anything if she said following Prior to nights. B.G. on each of the two assaulted rape, put applied condom and vase- the second B.G., line, Again, he forced “it would slide easier.” telling mouth, time it with duct into but this he secured sock B.G.’s *4 evening, unprotected, appellee third had forced tape. On the During rape, appellee each held intercourse with B.G. sexual anyone. kill if she knife and threatened to B.G. told 1995, Kim, rapes, the drove her May who was unaware of by appellee, her daughters, her two small children sister four Kentucky. her four Kim intended return and her niece Pennsylvania, to their father and then return daughters En route appellee time and would move Florida. she appellee raped her had her. Kentucky, B.G. told cousin mother, sister, who in turn told cousin informed her Kim’s The Kim. also rapes family B.G.’s father learned of the from immediately reported rapes appro- member he priate Kentucky protection child authorities.
Kim appellee rapes telephone, confronted about the over the at which appellee angry time became and told Kim that she keeps “better make sure that kid mouth her shut. You better your you sister to mind own get tell her business and better your up Pennsylvania. ass back Kim did here.” not return later, however, A appellee few weeks traveled bus to Kentucky, children, Kim retrieved and their two and drove Pennsylvania. Pennsylvania, them back to During trip Kim told appellee that B.G. and had reported her father rapes to in Kentucky. authorities also him that She told she stomach,” “sick “disgusted,” was to [her] and “didn’t think again.” ever wanted him to Appellee [she] touch [her] became enraged, grabbed head, Kim by the back of pulled her perform head down sex, and forced her to oral all while he was driving couple’s the car with the children two awake back you seat. He stated: “I I then think will do what want you to from now on.”
They argue rapes during continued to about the the rest of trip to Pennsylvania. point, back At night one late at near Cumberland, Maryland, appellee upset pulled became empty There, car into an par-king lot. he assaulted Kim and choked telling her while “kept her make sure B.G. her shut,” mouth I you and that “when tell you’re do something, going to do it.” in Pennsylvania,
Once back home Kim appellee again rapes discussed family B.G. the fact that Kim’s angry with reporting her for not rapes Pennsylvania. Again, appellee very angry became and began screaming at Kim, who was two and one half pregnant months at the time. Appellee her, pushed kicked against her punched wall and arms, causing bruising. Kim managed to flee from home and ran down screaming the street going to kill her. She went to neighbor the home of a whom she never met and police. police called the respond- *5 who was admitted to Meadows appellee, then
ed arrested Psychiatric Hospital. arrest, petitioned Kim for a Protection appellee’s
Following home, (PFA) she howev- order. When returned From Abuse stating that he er, from father she found note owned, car, to him or he would which he returned wanted the Kim it. The note also informed stealing Kim arrested for have home, to she had two vacate her mobile that weeks no Kim that she had also owned. testified appellee’s parents own, her that she was money, job, car or to live on place parents. upon appellee and his There- completely dependent response, fore, PFA In agreed petition. she to withdraw the to Kim and allowed to the car her appellee’s parents returned in the mobile home. remain had to appellee an more about what done
In learn effort any B.G., he had of her and to determine whether abused children, telephone spoke Kim several times other was at Meadows him once while he appellee and visited visit, appellee told Psychiatric Hospital. During the B.G.; instead, said, really “it wasn’t he he rape that did way I didn’t it all the in.” He also admitted get because sex by stuffing the attack a sock kept quiet during that he B.G. “really it duct and that he securing tape mouth and with her Appellee told Kim that B.G. had her scared with knife.” it.” just a while she me do “so of me after let terrified that, her, relating this fact to he appellee Kim testified him, funny it fun to him that it like was laughing “was about would do what he had her so much she he terrified having any to do terrorize her more wanted her without times, having B.G. Appellee raped it.” admitted five do anyone the assaults threatening B.G. that if ever told she he would kill her. July brought sisters and B.G.’s father three report rapes. Both and Kim Pennsylvania B.G.
B.G. rapes, stating police about the B.G. made statements to reporting had had occurred and Kim what B.G., twelve-year-old had admitted to her that he sex Appellee, it who although to be consensual. appellee deemed time, hospital by been released from the became *6 enraged reported rapes that B.G. and her had and father Kentucky that Kim to them to return to was unable convince again he Kim. to kill B.G. and and assaulted He threatened they car by shooting her father the tires their driving or to shoot with Kentucky to follow them and B.G. his and arrow as from compound bow she returned home school. 14, 1995, July charged rape, statutory was with appellee On B.G., rape and related as a of his assaults crimes result $25,000. jail and bail at appellee was set While and bail, engage after he was he continued to released designed course conduct to Kim intimidate and B.G. into visit, recanting During jail appellee their accusations. one told lawyer Kim to police tell his that she had lied to the about the rapes and to Attorney’s have B.G. write a letter to the District stating Appellee suggested Office that she had also lied. that B.G. write that magazine newspaper she seen a or a rape article about and that gave the article B.G. the idea to falsely appellee. eventually agreed Kim appellee’s accuse to demands because that appellee she was fearful would soon be jail parents released from his since had the financial resources post to Accordingly, bail. appellee’s lawyer she told that she police. had lied to Kim telephoned also and told B.G. her appellee that wanted her to write a letter to the District Attorney’s indicating Office that she had fabricated the rapes. Appellee B.G. refused. wrote several letters to Kim urging have B.G. write the recantation letter. Appellee also that asked write letters to him saying B.G. was sorry, she he good stepfather, and that he would never have raped her.
By arraignment, time had been released on bail and stay away had been ordered to from Kim and her daughters. courtroom, the arraignment however, Outside Kim told appellee that she would for him in court lie Attorney threatened to tell the District that he was pressuring her to lie. order,
In violation of protective the court’s appellee re- very night, door, turned the mobile home that kicked time, Kim, pregnant months and forced who was seven get'down on her hands knees. her clothes and remove belt, with his while then kicked Kim beat her Appellee do, screaming top lungs: you going of his “what are so, D.A. what? I don’t think going Kim? You’re tell the D.A. going anything. I think to tell you’re Kim.... don’t story lying my you’re going I think to stick with though at trial that even she knew she lawyer.” Kim testified jailed police and the potentially lying could Attorney, charged perjury she would rather be District by jail beatings appellee. than go endure further Therefore, to abide her recantation agreed she B.G. lawyer appellee raping about *7 securing through promise violence his wife’s to lie After rape daughter, appellee the of her escalated his behalf about Kim to her accusa- pressure on to convince B.G. recant the he Appellee himself wrote letters to B.G. which direct- tions. him, appellee to child had to the since ed Kim transmit Kim Appellee have no contact with B.G. told been ordered to to to of the threats that he had made B.G. after remind B.G. would kill or ruin her life if she raping her and he her that, when her mother reported the assaults. B.G. testified said, ... relayed appellee to what had she felt “scared her me,” appellee “would hunt might that he come after and ultimately to try down and to kill me.” B.G. succumbed me and and wrote a pressure appellee, from her mother letter the mother, to her Attorney, provided District which she the rapes. about stating she lied the not satisfied with his successful efforts Appellee, apparently B.G., attempted Kim recantations from to enlist secure sexual in motel with arrange, Kim to further encounter time, thirteen-year-old At sister. the both B.G. and B.G.’s prohibited by Kim from appellee both court order contacting daughters. Appellee asked Kim meet the Kim’s children, time, care at an mall who were foster area pre-arranged appellee room where and take motel them Kim mall. sexually girls assault both while waited would time, living Kim at the Appellee, who was not with assaulting girls, sexually with idea of the two “obsessed” daily pressured arrange meeting. Kim on a basis to When, conversation, during telephone Kim indicated reluc- meeting, telephone arrange appellee tance to ended Kim was still conversation went trailer where living, bed, tied her to the beat her with a stick and threat- ened sodomize her.
This led Kim to agree arrange latest assault that she would daughters separate a sexual and on encounter her three occasions forced Kim to appellee accompany him to a mall time, Altoona purpose. daughters for that The first Kim’s were at the mall but Kim did not bring them room, motel appellee beating resulted in Kim. The other times, two the girls were not at mall Kim had because actually arranged never to meet After them there. the third attempt, failed appellee failing beat and sodomized Kim for that, daughters arranged, stating deliver her “next time I’m going to get girls hotel.... going to start [Y]ou’re I doing you what you get tell do. The next time better them.”
At this it point, apparent appellee became to Kim that in his to sexually daughters, steadfast intent assault so she reported plans to Pennsylvania State Kim Police. wiretap interception consented to a telephone of her conversa- because, testified, so, tions with she if she did do *8 appellee eventually have day picked “would kids up one the himself brought and them to the hotel room.” The recorded detailed, things, conversations among appellee’s previous other B.G., rapes of his to continuing attempts intimidate Kim and B.G. into testifying truthfully, his continuing and intention arrange for sexual the assault of and B.G. her sister.
In intercepted telephone conversations, the appellee dis- particulars cussed of planned his sexual Among assault. other things, appellee discussed whether he intended to use condom; asked Kim to they ask the children if became sexually him; aroused at the prospect having with and sex requested bring that Kim packages two of “edible underwear” rendezvous, with her day the would-be so that each acknowledged plan Appellee also child could wear one. mall and leave with girls for at the them Kim abduct where, said, “eat, he he intended to nearby him in a motel which went on to discuss Appellee suck and f—k” the victims. first, admitting to “do” stepdaughters he intended his Appellee rapes of B.G. stated he process previous his first, he B.G.’s older sister since rape would decided Also, in these conversa- “already had her taste.” B.G. had Kim and tions, continuing attempts made influence appellee prior rapes. Finally, B.G. to lie to authorities about the appellee Kim several times over the course asked them; responded if she taping she was recorded conversations was not. that she rendezvous, picked appellee Kim day of the would-be
On a room her up and to motel where she secured drove room and Kim left the Appellee key took the name. the motel room and The Police then entered motel. State troopers arrest. The retrieved several placed appellee under room, two including gray tape, duct boxes of items from the underwear, condoms, jar and a vaseline. box edible charged intimidating counts of Appellee was numerous witnesses, attempt. criminal solicitation criminal rape charges consolidated with this second set pending July jury appellee convicted charges for trial. total counts. charges, encompassing fifty-eight some of all motions, court Appellee which trial denied. post-trial filed aggregate sixty- to an term of Appellee was then sentenced twenty-six years imprisonment. three to one hundred Court, raising several Appellee appealed this claimed appeal, claims. Pertinent failing object trial the admis- counsel was ineffective testimony regarding communications Spetzer’s sion of Efim previous the at- concerning rapes between the two arrange sexual assault of her older tempts B.G. argued priv- that these communications were Appellee sister. 5914, that: ileged provides under 42 Pa.C.S. in a crimi- provided subchapter, Except otherwise competent wife shall be neither husband nor proceeding nal
27 testify or to confidential communications permitted made other, privilege upon this is by one unless waived trial. argued
Id. The
that the communications fell
Commonwealth
that,
scope
any
5914
privilege
§
outside the
event, all of
communications
were admissible because the
§
privilege
inapplicable,
involving
5914
was
in this instance
upon appellee’s
by
sexual assaults
minor stepdaughters,
opera-
6381(c).
6381(c),
§
23
tion of
Pa.C.S.
Section
which is
part
(CPSL), provides
the Child
Law
Protective Services
that the
privilege,
confidential communications
not
“shall
con-
grounds for
at
excluding any
any
stitute
proceeding
evidence
regarding child
the cause of child
abuse
abuse.”
§
Superior
panel
privilege
Court
noted that
The
5914
6381(c)
“appear
§
the CPSL
inconsistent” be-
be
cause
the communications
“[i]f
are deemed admissible that
while,
interpretation
appear
§
would
5914”
odds with
if
“[cjonversely,
the communications are deemed inadmissible
interpretation
that
appear
then
would
at odds with ...
(Pa.Su-
§ 6381.”
722
Spetzer,
Commonwealth v.
A.2d
707
per.1998).
noting
After
inconsistency
the obvious
in the stat-
utes,
panel
rejected
argument
the Commonwealth’s
prem-
CPSL, finding
ised
it
inapplicable
that,
criminal proceedings.1
panel
then
while
determined
certain of
the communications between
and his wife
panel
support
1. The
for this conclusion in
found
this Court's decision
Hancharik,
(1993),
Commonwealth v.
Pa.
534
After entitled briefly appellee’s four went consider panel reject- additional claims counsel ineffectiveness. claims, fourth, three but found merit in ed alleged failing to object trial counsel ineffective hearsay panel 713-14 & nn. 9-10. The evidence. Id. at did independently latter claim address whether the warranted only a new trial and the court’s mandate awarded a new trial involving object reference to the claim failure introduction marital communications. Id. 717. The rejected prosecutorial claim of panel also miscon- as well as his claim that court had duct the trial erred *11 denying charges. Finally, severance of Id. the at 714-15. the claim panel appellee’s found merit that the evidence was crimi- support charges insufficient his convictions on ten of attempt charges nal and ten of criminal solicitation to commit assault, deriving plan rape forcible sexual all from the his Superior step-daughters Accordingly, two the motel. the convictions, twenty appellee’s Court reversed vacated the rest, and for a new trial. 715-17. remanded Id. at
Judge Kelly a concurring opinion, joined filed which was by (who joined Justice Montemuro majority Senior also the opinion). only The concurrence involving addressed the claim spousal the confidential communications privilege. Judge Kel- ly agreement noted his with majority’s analysis, the but expressed spousal his “distaste for privilege applies the as it involving situations the sexual 722 abuse a child.” A.2d at J., (Kelly, concurring). that, 717-18 Judge Kelly stated “[i]n opinion, my parent no expected should be to remain silent concerning sexual abuse inflicted his or her children especially when the abuse is at hands of a co-parent. the however, Pennsylvania law, holds otherwise.” Id. denied, reargument, Commonwealth filed for which was sought Court,
and then question review this limited to the admissibility of the of the communications between granted and his wife. This Court review examine scope the spousal confidential communications forth set § Code, 5914 of the Judicial as well as interplay the § § 5914 6381 of the CPSL. that, portions those dispute if does
The Commonwealth the communications deemed excludable privileged, trial counsel § indeed then Court under 5914 are to a trial at which appellee is entitled new ineffective and could not be admitted. The Commonwealth those statements however, challenged appellee’s that all of statements argues, proper construction under a to his wife are admissible alternative, argues that the Commonwealth 59Í4. 5914 renders interplay §of 6381 of CPSL and, of law questions These admissible. are statements Lussi, v. such, plenary review. Commonwealth subject are (2000). scope 362 n. 2 Our A.2d 562 Pa. the entire record. review includes first, argument § 5914 the Commonwealth Addressing the here, at issue which relate that the communications asserts stepdaughter, pending his past against crimes crimes, planned future prosecution arising from those stepdaughters, cannot deemed sexual assault of two privilege. Citing this decision subject to marital Court’s (1895), Seitz, 71, A. v. 170 Pa. the Commonwealth Seitz confidential communications *12 traditionally form that the essence and confidence willing of Kim recitation Spetzer’s bond: Exclusion marital case, argues, in this the Commonwealth appellee’s statements harmony relationship. this marital not further does were uttered the communications involved This is so because manipu- and appellee’s ongoing brutalization the context of providing his into attempt of his in an force wife lation children. The forcibly sexually assault her opportunity an sharing subjects usual related not relationship, but to intimacy marital that characterize Kim and her upon Spetzer sexual assaults past and future Furthermore, communications occurred daughters. minor relationship, brutalizing marital but just the context of charges were legal in the of a situation where also context against appellee previous rapes for the already pending B.G., potential that and where knew his wile was a communications, against him. witness Certain of moreover, designed were intimidate and influence his wife stepdaughter perjure themselves. The Commonwealth communications, argues relating remaining further that the appellee’s attempt arrange to have his wife for a future sexual sister, ongoing directly assault B.G. were efforts appellee’s manipulation related to and intimidation his wife daughters. and her minor Commonwealth submits disputed spousal ongo- “part communications were an ing, tyrannical reign sadistic and of threats and abuse [which] intimacy is far from sharing removed which form the any foundation of expectation marital In confidence.” concluding that these communications should not be deemed confidential, urges the Commonwealth that: “The law on confidential communications spouses between should not be interpreted in violently a manner would allow one to destroy family abuse and his with impunity shielding designed himself with a preserve statute to enhance and very unity destroying.” he is Appellant, Brief for 26-33. that Seitz is
Appellee responds distinguishable because it was a sounding adultery, divorce matter while this is a stake, appellee’s liberty criminal case where is and where the communications what include amount confessions to the child sexual assaults and the witness charges. intimidation addition, appellee claims that argument the Commonwealth’s premised solely public policy and argues that its focus on “tumultuous, or dysfunctional” violent nature the mari- tal relationship, in determining whether the marital privilege applies, would an rule, result unworkable as the courts analyze would “required history the marital between Finally, husband and appellee argues wife.” that his conver- wife, sations with socially abhorrent,” “while were never- theless they private made belief communica- and, tions reason, with his spouse they for that must be *13 deserving deemed of confidentiality privilege irrespective content, purpose, any their or other consideration. Brief for Appellee, 13-19. spousal communications confidential substantially legislation dating back to
“is reenactment 1887, roots in the common law.” Common- which itself had (2001) 507, 490, v. 566 Pa. 782 A.2d Chiappini, wealth in This has had occasion recent opinion). (plurality general structure of the Judicial Code years discuss the privi- confidential pertains it in provision but distinct lege and the related other, and which against spouses as witnesses each governs that emphasized has in common law.2 We have also roots two distinct rules:” sections 5913 and 5914 “involve disqualifying a husband or wife from The first was rule spouse. This broad any testimony adverse giving Section exceptions. rule was not without Within charges threatening, attempt- for provided exception an bodily injury or an act of or violence on the ing, committing care, charges exception in an for spouse or their children maintenance, charges exception and an for desertion incompetency of the rule of bigamy. The statement by may be preceded language indicating exceptions also subchapter. found in the elsewhere rule, found in section is more limited. The second provides incompetent testify confi- spouses It are only exception stated within dential communications. The upon protection may be “waived the section provides as 2. Section 5913 follows: provided subchapter, pro- criminal Except in this as otherwise waive, may ceeding person privilege, have which he or she shall against spouse except that testify his or then lawful there privilege: shall be no such maintenance; (1) proceedings for desertion and (2) bodily injury any proceeding against or criminal either other, upon attempted, done or threatened or violence wife, the minor children of minor children of said husband or them, any custody, or or minor child in their care or in the either of them; custody care of either or (3) marriage, support of a applicable proof of the fact charge bigamy alleged or with to have been committed criminal other; (4) charges pending any proceeding in' criminal which one murder, involuntary against deviate sexual defendant includes rape. intercourse or *14 however, language is prefatory trial.” there to Again, stated, “except as effect the rule is otherwise provided in this subchapter.” Hancharik, (construing
Commonwealth v.
against his or her has spouse, but refuse give testimony, may adverse which he or she waive. There testify is no four against spouse refuse (1) distinct and situations: actions for desertion mainte- (2) nance; cases is spouse charged where the one threatening, attempting, bodily injury or acts of committing against or or against any violence the other child in their (3) care; (4) bigamy; cases of or cases where one of the murder, is charges rape, or involuntary deviate sexual inter- if a may give course. Even husband or wife be called to testimony spouse, however, adverse to his or her he or she is competent testify to confidential communications. Nevertheless, a spouse’s should defense attack character conduct, spouse competent the attacked is witness may testify even confidential communications. point,
Id. at 1072. The providing final that a spouse is competent testify to confidential communications if his or attacked, is her character or conduct a separate derives from statutory provision § set forth at 42 Pa.C.S. 5915. case,
In this there no dispute Spetzer is that Kim § competent against under 5913 to testify her husband in this case involving crimes against committed intended herself daughters. and her argument, No has been asserted that her testimony was admissible and introduced under 5915. Thus, question testimony whether her revealing state- ments made to her husband were excludable as privi- leged confidential under We are mindful, course, unique of evidentiary privi- nature leges. As the United Supreme States Court noted discuss- (i.e., testimony restricting spousal law rule
ing
common
5913):
§to
analogue
exclusionary
privileges
contravene the
rules
Testimonial
“
...
public
right
has a
principle that
‘the
fundamental
”
Bryan,
States v.
man’s evidence.’ United
every
339 U.S.
(1950).
724,
such,
...
As
Trammel v. United 445 U.S. 100 S.Ct. (1980). L.Ed.2d 186 63 privilege did not confidential communications spousal noted, vacuum, instead, origins has but ancient
arise in Seitz v. recognized law. This Court in the common rooted Seitz privilege that is based considerations “[t]he policy, preserve as in case of husband and wife to public the harmony, and confidence their relations....” 32 peace, the Accord, 493, 782 Chiappini quoting A.2d A. at 578. Vanartsdalen, 4 364, (1846). also v. See Cornell Pa. Evidence, (5th Ed.1999) (“The at 340 McCormick marital argument traditionally support advanced the the privilege privilege that is needed to communications confidences, pro in turn marital confidences encourage wife”). Wigmore noted harmony mote between husband every foundation of policy that which should lie the “[t]he ... appears to be satisfied” privileged rule of i.e., communications: the communica in the case confidence, confidence is essential the originate tions the relation, proper subject encouragement by is a the relation law, the that would inure the relation injury the benefit that would result from probably exceeds the disclosure ignoring privilege “judicial investigation the of truth.” rev.1961). Evidence Wigmore, (McNaughton at 642 years, however,
In recent has traditional rationale been question, assumption called into since it is bottomed on an that spouses are privilege protections aware and “take its confidences, determining into account in to make marital or at least, they which is not thing, the same would come to know of the it absence if withdrawn and be, result, confiding McCormick, as a present.” less than at supra. “[p]robably suggests policy McCormick encouraging is not prime creating confidences influence in and maintaining privilege.” Rather: really
It is a much natural more and less devious matter. It is a matter of emotion and sentiment. All of us have indelicacy feeling of prying want of decorum in into the secrets of husband and wife. may
... hoped increasing It recognition of the true operative basis for affording privilege marital will in partners acceptance logical turn draw with it implications rationale, of that and that can *16 reshaped be accordingly into less anomalous form.
A step recognize delicacy desirable first is to that and decorum, worthy deserving while and of will protection, not stand in the balance is where there for need otherwise unobtainable evidence critical to the signif- ascertainment of legal icant rights. This disproportion, together with the consideration that privacy general maintenance as of objective is critically impaired by not its sacrifice in cases of need, particular argues treating this privilege as a qualified view, turn, one. This in would remove much of the felt to hedge need privilege narrowly about with not completely logical exceptions qualifications, and perhaps largely of out the fear that a more liberal ambit of the will privilege inexorably to of lead loss critical in evidence future cases. (footnotes omitted).
Id. at Seitz The long ago recognized that the marital har- mony policy by privilege served was relevant to determin- confidential.3 should be deemed which communications
ing by of brought grounds Mrs. Seitz on was a divorce action Seitz to attempted testify adultery. Mrs. Seitz husband’s her and state- husband which she had witnessed conduct prove the fact of to her which tended to he had made ments grounds adultery, testimony was excluded trial on but determined privilege. appeal, Court first spousal On 5(c) 23, 1887,4Mrs. that, May Act of section Seitz under testify anything she had seen.” “clearly competent separate question of whether her Turning A. testimony her husband as the statements made ground the statements were excluded on properly communications, the Court held: confidential be is to considered as Whether a communication confiden- upon as the relation depends upon tial its character well It essential it should be made parties. confidence, it not be and with the intention that should divulged. is based considerations preserve and policy, as in the case of husband wife public relations, peace, harmony, and confidence their unreserved attorneys client secure the the case If justice require. which the ends communication parties made of the relation because it is inspires and which which that relation confidence inviolate, privileged. to hold it is not policy of the law it that communications made Ordinarily, might be inferred by a with the intent and husband his were made may required recognized 3. This Court has that construction scope the confiden- which communications fall within determine by particular statutory privilege. tiality See Commonwealth v. secured Stewart, (1997) (construing clergy- A.2d 547 Pa. 198-200 that, 5943) (42 holding to fall Pa.C.S. communicant clergy- privilege, must have been made within that communication advisor;” “limiting spiritual capacity “in or her as confessor man *17 spiritual ... privilege penitential or in nature the to communications interpretation provides rational and well-established of confidential ”). clergyman’s] acquired ‘in the course of duties.’ [a information 5924(b)(1), 5(c) 42 predecessor 4. Section is the Pa.C.S. against competency spouses testify provides the of one another Hancharik, proceedings. Note. also 633 A.2d See Historical See divorce 1078 & n. 3. mentioned, but the and confidence circumstances of repel presumption the statement such a in this nature made, sought case. The disclosures as indicated to, objected did not relate to the questions confession of husband, who had to his penitent story confided his but to a declaration wrongdoing, boastful defiant misconduct, his intention to openly persist his course, his accompanied by insolent and brutal taunts. No peace harmony considerations domestic or sanctity their the marital relation disclosure forbid the wrongs injured redress did not arise party. They existing parties, between the but from confidence from the want it.of
Id. at 578 (emphases supplied). Seitz thus teaches that there
are instances
surrounding
where the circumstances
marital
indicate
the communications are intended
disharmony
relationship;
create
further
in marital
instances,
privilege yields.
those
This
ques
Court had more recent occasion
examine the
tion of what communications should properly be deemed confi
purposes
dential for
May,
Commonwealth v.
237,
(1995),
denied,
540 Pa.
656 A.2d
1078,
cert.
525 U.S.
818,
(1999).
119 S.Ct.
mine specific whether there statutory are exceptions to the
38 itself, § not found in the but another text
operation
in Hancharik
Code.
defendant
provision of
Judicial
his sexual
offenses
connection with
was convicted
several
ten-year-old granddaughter, who
a
occa-
assaults
Mend’s
appeal,
On
sionally stayed at the defendant’s home.
his
for
claimed that
trial counsel
ineffective
defendant
testimony of
objection
§
a
5914
failing
raise
(1)
concerning:
expressed
adopt
his
desire
defendant’s
(2)
expression that he loved the child victim
girl,
an older
his
(3) his
presence,
very much and was able
relax
relationship
and were
they
poor
that
sexual
wife’s view
rejected
This
the Supe-
experiencing
problems.
marital
admissi-
conclusion that the communications were
rior Court’s
spousal incompetency
rule of
exceptions
ble because the
for
exception
§
include an
cases
forth in
5913—which
set
child in the
involving bodily injury
violence to minor
statutory exceptions to
defendant’s care—also established
privilege, not-
§ 5914’s
confidential communications
exceptions.
sets forth no such
We
withstanding
§
that
5914
statutory
noting
“[ujnques-
rejected
interpretation,
this
rules,”
two
tionably,
5914 involve
distinct
sections
would render
interpretation
and that
Court’s
Neither
May,
Seitz approaches
vitality
analytical
Newman,
disagreed
Papadakos
In both Hancharik and
Justice
Papa-
§§
interplay
Justice
interpretation of the
5913 and 5914.
statutes,
drafted,
legisla-
opined
badly
while
revealed
dakos
spousal privilege
destroy
where a
in the
tive
“to
child
home
intent
J.,
Hancharik,
(Papadakos,
633 A.2d
concur-
suffers violence.”
Papadakos
"Except
§
ring).
interpreted
5914's
as otherwise
Justice
provision
referring
§
subchapter”
as
5913 and
provided in this
both
5915;
"except
accordingly, spousal confidentiality
existed
where cer-
specifically destroys
privilege.”
Id.
tain conduct
may
of what communications
separate question
addressed the
§ 5914
properly
prede-
be deemed “confidential” under
and its
review,
After considered
we are satisfied
cessor.
communications in this case cannot be deemed confidential
explicated
May.
under the
Seitz and
*19
is
to
say
It
safe
the communications
here—concerning appellee’s past
rape),
made to his
(e.g.,
intimidation),
continuing (e.g., witness
and future-intended
assaults)
(e.g., attempted
against
crimes
his wife and
sexual
sensitive,
harmony-
her minor
not
marital
children—are
the
inspiring
contemplated by
communications
common law
the
authorities,
Assembly,
Pennsylvania
erecting
the
General
privilege.
this
To
contrary,
the
these communications were
disharmony.
intended
further marital
Of the cases decided
by this
involving
privilege,
the
case most like
statements,
Appellee’s
Seitz.
like the statements made
the
Seitz,
husband in
“did
penitent
not relate to the confession of a
husband who had
story
wrong
confided
his wife the
of his
doing.”
Rather,
do statements issue Certainly persistent sadistic here, contemplated crimes concerning a husband’s actual children, rationally be exclud- wife and her cannot against his peace of domestic pretext that “considerations ed their disclosure.” marital relation forbid harmony indeed, indulge a fiction of Seitz. perverse, would be It harmony prove the declar- marital to shield statements of, for, spouse’s contempt and abuse the marital ant utter Seitz, here, we hold that as chal- Accordingly, union. arise from lenged “did not the confidence communications id., it,” and, existing parties, but from the want between such, admissible.6 Counsel there- object to evidence of the failing fore not ineffective for communications. Common- support this conclusion
We find further *20 § of 6381 of the May, supra, wealth v. particularly light Law. argues The Commonwealth Child Protective Services construction, abrogates that, statutory § as a matter in all privilege communications cases confidential abuse, including prosecutions arising criminal involving child 6381(c) provides: child from abuse. Section (c) communications.—Except privileged for com- Privileged a lawyer client and between munications between privilege and a of confidential communi- penitent, minister any profes- or cation between husband between to, physicians, including, psy- sional but not limited person, clinics, counselors, day- employees hospitals, chologists, suggesting subject to be that the 6. Our conclusion here not read necessarily question matter marital communications controls possess marriage, spouses privilege. Where there is an intact reason- confidentiality their expectation as to shared communications able regardless further the of whether content those only relationship. nature It is where the communica- marital disharmony or further in the marital tions are intended create yields. supporting relationship The rationale spouse in a one be utilized case such as this aid should not spouse tyrannical in a to maintain his abusive hold over other effort and her children. clients, care patients centers and schools and their shall grounds not excluding any pro- constitute for evidence child, ceeding regarding child abuse or the abuse. cause of 6381(b) § (emphasis supplied). 23 Pa.C.S. The Common- argues emphasized language legisla- wealth that the reveals a govern evidentiary tive intent that it is to issues all court abuse, proceedings regarding including child proceed- criminal 6381(c) ings. support § As for its conclusion that applies to 6381(b). proceedings, § criminal points Commonwealth 6381(b) Section allows the admission of of unavail- reports any able “in proceedings arising witnesses out of child abuse and, proceedings (relating other than under Title to crimes 6381(b) § offenses).” (emphasis supplied). Pa.C.S. (b) that subsection expressly application fact excludes its (c) proceedings, criminal while subsection does not contain exclusion, an such leads the Commonwealth conclude that Assembly (c) obviously the General intended subsection apply criminal proceedings. above, our holding
Given
we
need
reach the broader
question of
operates directly
whether
CPSL
modify
§ 5914 in criminal prosecutions involving the abuse of children
Rather,
in order to
decide
case.
light May, the
CPSL is
§
relevant
construction of
5914 in a more
recognized
subtle and indirect fashion.
in May
The Court
question
of what
ais
“confidential” communication
part
turns in
expectation
the reasonable
the declarant has
that the communication will remain confidential.
We believe that our history scope with the and intended and that is tension there no between 5914 and the CPSL. Neverthe- less, given the if obvious indirect effect that the CPSL has upon Assembly might the General wish to revisit § 5914 and explicit make even more the limitations privilege.
Although we concluded that Superior have erred granting appellee claim, upon question new trial appropriate Appellee remains. argues mandate that he independently Superior entitled to new trial because Court found that his claim failing ineffectiveness for counsel object hearsay merit, to inadmissible also had and the Commonwealth not challenged separate has finding. From the summary Court’s hearsay discussion claim, however, apparent it is not at panel all that the conclud- that appellee ed entitled a new trial this issue. summary The court’s its cited only mandate claim counsel failing object ineffectiveness for to introduction grant the marital communications in support of the of a new Similarly, trial. because court did not address the issue of it is not clear whether its reference remedy separately, finding to be hearsay “prejudicial” evidence as intended if the independently warranted even that a new trial was *23 It may well communications were deemed admissible. marital that a trial that, panel having determined new already the claim, analysis of the first its additional required trial led to the same new relief claims would have for the of the new guidance to offer conduct merely intended already trial ordered. that, a new trial is determining
We whether note upon a claim ineffective assistance required premised counsel, totality of reviewing court “must consider the trial v. jury,” Washing or Strickland judge the evidence before ton, 695, 2052, (1984), 668, 674 104 80 L.Ed.2d 466 U.S. S.Ct. that, probability but is reasonable and decide whether there error, the trial would have been for counsel’s outcome of the Hutchinson, Id.; v. 811 see also Commonwealth different. (Pa.2002). case, Superior In 562 Court A.2d respect hearsay claim. engaged analysis no such circumstances, Superior will vacate In these we determination, court for a consistent and remand order opinion, appellant independently enti with this of whether hearsay/counsel claim tled to a new trial on ineffectiveness prejudice, previously analyzing it to have merit. deemed record, course, entirety must consider the the court have including marital communications we determined Court’s reversal properly admitted. sufficiency grounds re certain of convictions on its succeeding this decision and order mains unaffected shall so reflect. and remanded.
Vacated concurring opinion. files a Justice NIGRO a dissenting opinion. files Justice ZAPPALA Chief NIGRO, Concurring. Justice testimony majority Spetzer’s I with the that Mrs. agree Appellee had with was admissible. regarding conversations she however, disagree, majority’s Appel- I with the rationale that not lee’s communications were confidential under Pa.C.S. promote did 5914 because the communications marital Seitz, harmony. Maj. Op. (citing See at 721-22 v. Seitz (1895)). Rather, I Pa. 32 A. would find that challenged communications were admissible under section 6381(c) (“CPSL”), which, of the Child Protective Services Law argues, as the modifies Commonwealth 6381(c) Specifically, forth set in section section states: Privileged communications.—Except privileged commu- lawyer nications between client between a and a penitent, minister commu- of confidential profes- nication any between husband between to, person, including, physicians, sional but not limited psy- counselors, chologists, employees clinics, of hospitals, day- *24 patients clients, care centers and schools and or their shall not constitute grounds excluding evidence any pro- at for ceeding regarding child abuse or the cause child abuse. 6381(c) added). § 23 (emphasis Pa.C.S. In enacting provi- sion, I believe that the legislature made a public policy deci- sion to override 5914’s spousal privilege section proceed- in one, ings, such as this allegations which involve child abuse. Therefore, view, in my go this Court need any further 6381(c) than section that challenged find the statements in instant the case were admissible. ZAPPALA, Dissenting.
Chief Justice respectfully I The majority today dissent. holds that the entirety testimony of Kim Spetzer’s revealing statements husband, by made to her Appellee, not qualify do confidential § communications under 42 Pa.C.S. 5914 and the common law definition confidential expli- communications as Seitz, in 71, (1895), cated v. Pa. 32 Seitz 170 A. 578 237, Commonwealth May, (1995). v. 540 Pa. A.2d 656 1335 Although agree I majority with the that must we look the common law definition of confidential to prop- communications erly interpret 5914, I doing, Section in believe so the majority giving preference errs policy undue consid- Seitz, underlying erations this Court’s decision in while the 46 underlying the minimizing policy
same considerations time May. this Court’s decision in 5(c) of implicated was a action which Section
Seitz
divorce
317,
1887,
158,
89,
May 23,
§
Act
P.L.
No.
28
P.S.
5924(b)(1),
which
an
provides
to 42 Pa.C.S.
predecessor
that in a
exception
proceedings
general
rule
divorce
competent
civil
neither husband nor
shall
matter
certainly
I
testify against
each other. While
permitted
teaches “that the marital
agree
majority
with the
Seitz
harmony
was essential to deter-
policy
privilege
served
mining
communications should be deemed confiden-
18,
tial[,]”
Majority Op. at
the Seitz decision was made
divorce,
for
in stark contrast
context of a civil action
case,
implicating
proceeding
Appel-
which is a criminal
instant
such,
merely
policy
look to the
liberty. As
we cannot
lee’s
underlying the Seitz decision.
considerations
by majority,
As conceded
ques
had
occasion to examine the
more recent
[t]his
properly
tion
communications should be
deemed
of what
purposes
Commonwealth
confidential
denied,
(1995),
237,
v.
540 Pa.
Rather, I opinion, believe its well-reasoned Superior protects appropriate Court achieved an balance that privately the information disclosed between husband and wife relationship, the confidence of the marital the same operation time denies communications which are repugnant preservation harmony of marital society and the harmony resultant benefits from that designed protect. Superior is The Court achieves by taking this policy balance into account the considerations Seitz, underlying this decision in minimizing Court’s without policy underlying considerations this Court’s decision May. Superior privi- Court’s decision and of the application
lege do not by Appellee insulate those communications made her, injure his vrafethat direct or kill constituted threats or conveyed as part physical information of the threat or assault, that was not a threat. itself Instead it extends the privilege to categories several limited of communications be- (1) Appellee tween inculpatory and his wife: or statements (2) confessions; attempts solicitation and communications de- signed to get certain say witnesses to do or certain things to exculpate Appellee, order unless meant be on to passed merely others and did direct that Spetzer Mrs. do something that involved communications with (8) others; Appellee’s prison from Spet- letters Mrs. noted, May, Following question confidentiality possibility there some as to the due to the being by prison being of the letters read If officials. the letters were by prison [Appellee] read officials and was aware of then actual text letters would not confidential he because would hand, expectation privacy. have no Spetzer On the other Mrs. aspects being having testified of the letters “code” meaning only [Appellee]. divulgence to her and Her aspects of these *26 zer, letters, solely Spet- to Mrs. though addressed unless by Spetzer to zer, to be Mrs. actually intended delivered were categories privi- fashioning these three limited another. communications, made clear that Superior Court it leged if the apply still would not made within the categories into three limited fall these Spetzer. on Mrs. The physical assault threat context of Appellee’s failure of trial Superior concluded Court of the communications that object admission counsel communi- categories privileged into fall these three limited of counsel. Su- ineffective assistance cations constituted conviction on the Appellee’s vacated perior Court therefore trial court and remanded fifty-eight total counts remaining counts of criminal thirty-six on the new trial Appellee. charges against According-
I the order Court. would affirm I dissent. ly, respectfully A.2d 726 Pennsylvania, Appellee
COMMONWEALTH v. Bryant Damu
Taibu Modamu GRANT a/k/a Gramm, Tyrone Appellant. Taibu a/k/a Pennsylvania. Supreme 4, Argued March 2002. Dec.
Decided officials, letters, being by prison if the letters were read even meaning of these terms would would violate the because read confidential even if others. remain (citations Spetzer, (Pa.Super.1998) A.2d v. Commonwealth omitted). notes the marital public policy fostering to further exists i.e., harmony designed promote peace, it is relationship,