Commonwealth v. Patosky , 440 Pa. Super. 535 ( 1995 )

CIRILLO, Judge, dissenting.

I respectfully dissent. I believe that the fundamental right to freedom is greater than the right to have the accuser’s background remain inviolate. My position on this issue has been previously expounded upon, as seen in Commonwealth v. Kennedy:

I cannot agree ... that an accused’s state constitutional rights must bow to the state’s interest in the treatment of victims and the safety and well being of those who report abuse. I am cognizant of the delicate and difficult balancing of significant interests — a defendant’s fundamental right to a fair trial on the one hand, and a victim’s right to privacy following a terrible assault on his or her integrity on the other.... The defendant’s constitutional rights, however, must prevail. The state, by way of its legislature or judiciary, cannot deprive a person of his or her right to constitutional due process.... I would find that the state’s compelling interest in the confidentiality of the counseling relationship must yield to the greater interest in promoting and protecting the defendant’s constitutional rights. See Commonwealth v. Carillion, 380 Pa.Super. 458, 474, 552 A.2d 279, 287 (1988) (Cirillo, P.J., concurring).

Commonwealth v. Kennedy, 413 Pa.Super. 95, 117-19, 604 A.2d 1036, 1048 (1992) (en banc), alloc. denied, 531 Pa. 638, 611 A.2d 711 (1992) (Cirillo, J., concurring).

Consequently, I believe that, in the present case, Patosky’s constitutional rights to effective confrontation, compulsory process, and due process were violated when the trial court did not allow his attorney to conduct an in camera review of the alleged victim’s psychiatric records. See Kennedy and Carillion, supra (Cirillo, J., concurring).