Commonwealth v. Kennedy , 413 Pa. Super. 95 ( 1992 )

CIRILLO, President Judge,

concurring:

I join in the majority’s finding that Kennedy is entitled to all information in the CPS file relative to the investigation, and I join in its decision to vacate the judgment of sentence in this case and to remand for a new trial. I write separately, however, to add that although the majority recognizes that “there can be little disagreement that information contained in [the CPS] files is of critical importance to the accused,” its analysis may preclude Kennedy, the subject of a report, from accessing information from the file which may prove most critical to his defense.

As the majority states, a subject may receive all the information in the file except “[t]he release of data that would identify the person who made a report of suspected child abuse or the person who cooperated in a subsequent investigation ...” 11 P.S. § 2215(c) (emphasis added). The majority characterizes this restriction as a “limited intrusion upon the accused’s state constitution[al] rights.” I disagree. Knowledge of the identity of the reporter is frequently the accused’s only hope for defending against such accusations. “When materials gathered become an arrow of inculpation, the person inculpated has a fundamental constitutional right to examine the provenance of the arrow and he who aims it.” Commonwealth v. Ritchie, 509 Pa. 357, 367, 502 A.2d 148, 153 (1985), aff'd. in part and rev’d. in part, Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).

I acknowledge my colleague’s accurate interpretation of the statute, as well as the law of this state as recently defined in the plurality decision of Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992). I cannot agree, however, with the premise of either the statute or the . Wilson decision, to wit, 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 competing interests — a defendant’s fundamental right to a fair trial on one hand, and a victim’s right to privacy following a terrible assault on his or her integrity on the other. I recognize the valid purposes for maintaining the confidentiality of these records and understand the importance of encouraging both safety and promptness in the reporting and treatment of such crimes. 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.

It is precisely because crimes of this nature are particularly heinous and violent, and because we mete out such severe punishment to those convicted of these crimes, that we must be even more vigilant in preserving the rights of the accused. Passion too easily allows us pause in our observance of the rights of the accused. “The requirement of ‘due process’ is not a fair weather or timid assurance. It must be respected in periods of calm and in times of trouble[.]” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The concept of procedural due process, though enduring and adaptable to changes in jurisprudential values, cannot be altered to accommodate the crime victim or to prevent the disintegration of the counseling relationship. The ease of accusation and the difficulty of defense in sexual abuse cases heightens our responsibility to abide by this concept and afford the accused fundamental fairness in the context of his defense against criminal charges.

In Wilson, supra, our supreme court held that confidential communications between a sexual assault counselor and a victim are absolutely privileged under 42 Pa.C.S. § 5945.1, rendering meaningless, in my view, the defendant’s right to confrontation and compulsory process. Our supreme court reasons that the defendant’s right to confrontation “does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony,” and that the defendant’s rights are satisfied “if defense counsel receives wide latitude at trial to question witnesses.” Id., 529 Pa. at 279, 602 A.2d at 1296. I must respectfully disagree. In my opinion this view begs the question of whether the defendant’s rights are adequately protected and does not comport with the realities of a criminal trial. The effectiveness of confrontation and cross-examination is undermined if pretrial access to relevant information is limited. Defendants gain nothing from receiving “wide latitude” in questioning witnesses if they know nothing of that witness. This type of constitutional protection is transparent. “Denial of access to a witness’ prior statements ... imposes a handicap that strikes at the heart of cross-examination.” Pennsylvania v. Ritchie, 480 U.S. at 71, 107 S.Ct. at 1009 (Brennan, J., dissenting).

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). I am in agreement with Justice Zappala’s dissenting view in Wilson. I, too,

am gravely concerned that we have lost all sense of what our constitutional rights guarantee ... I am sympathetic to the physical and emotional trauma suffered by a rape victim, but I am not not willing to sacrifice the guarantees of our Constitution to assuage the harm----The Constitution of this Commonwealth is the absolute — a legislative enactment of a statutory privilege is not.

Wilson, 529 Pa. at 284-286, 602 A.2d at 1299-1300 (Zappala, J., dissenting).

In summary, defense counsel, should be permitted to review, in camera, the victim’s entire CPS file and psychotherapy records. Anything less dilutes the search for the truth. Carillion, 380 Pa.Super. at 474, 552 A.2d at 287 (Cirillo, P.J., concurring).

CAVANAUGH, J., joins.