Commonwealth v. Lloyd

OPINION OF THE COURT

McDERMOTT, Justice.

The appellant Stephen Lloyd appeals by allowance the order of the Superior Court affirming the judgment of sentence of the Common Pleas Court of Philadelphia. We reverse.

On August 2, 1985, after a four-day trial, a guilty verdict was returned against appellant on charges of rape, statutory rape, indecent assault, and corruption of minors. After denial of post-verdict motions and appellant’s motion to reconsider sentence, he was sentenced to an aggregate term of imprisonment of eight and one-half to seventeen years. The judgment of sentence was timely appealed to the Superior Court, which affirmed. Commonwealth of Pennsylvania v. Stephen Lloyd, 367 Pa.Super. 139, 532 A.2d 828 (1987).

The record reveals that during the summer of 1983, appellant was a supervisor in a government-funded program entitled “Play Street.” During this time appellant assaulted and committed various sex acts upon the six-year-old victim who participated in the program. At trial, as part of his defense, appellant alleged that the victim was delusional and/or hallucinatory. To substantiate this claim he caused a subpoena duces tecum to be issued to the Psychiatric Institute of the Medical College of Eastern Pennsylvania which rendered psychotheraputic treatment to the victim. An in camera inspection of the records was conducted by the trial court which determined appellant’s allegations to be unfounded based upon its review of the treatment records. Appellant argues that the trial court’s refusal to grant defense counsel unlimited access to these records violated his rights to confrontation and compulsory process as guaranteed by Article 1, section 9 of the Pennsylvania Constitution.¹

Though the constitutionality of the trial court’s ruling has not previously been addressed by this Court under our state constitution, we have had occasion to rule on similar matters. For instance in Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976) where the defense was denied the right to examine pre-trial statements of a prosecution witness for the purpose of cross-examination, this Court stated:

“The defense was entitled to examine the statement in order to have a fair opportunity to cross-examine the witnesses. Whether the statements of the prosecution’s witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a . client. Matters contained in a witness’ statement may appear innocuous to some, but have great significance to counsel viewing the statements from the perspective of an advocate for the accused about to cross-examine a witness.”

Grayson, 466 Pa. at 429, 353 A.2d at 429.

Similarly in Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981), this Court was called upon to determine whether or not to create an absolute privilege for all communications between rape crisis center personnel and persons seeking assistance at the center. This Court held that the rights of an individual accused of rape require that the accused be given an opportunity at least to ascertain what the complainant had previously said. The relief there was limited in that the inspection was to be conducted in camera and statements reflecting counselling were not to be revealed. Interpretations or recollections of the counsellor were not to be made available. Further, improper disclosure or use of the statements was prohibited. 494 Pa. at 29, 428 A.2d at 133.

We decided the issue in Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985) similarly. There the defendant was charged with rape, involuntary deviate sexual intercourse, incest and corruption of minors. During trial preparation defense counsel served a subpoena upon The Child Welfare Services (CWS) seeking records involving the complaint. CWS refused and based this refusal upon the confidentiality of the records as mandated by 11 P.S. § 2215.² The defendant in Ritchie, Id. argued that notwithstanding the confidentiality provision of the Child Protective Services law, the refusal of CWS to permit inspection of their records was a denial of his sixth amendment right to confrontation as guaranteed by the United States Constitution. We held that the defendant was entitled to gain access to the entire file of The Child Welfare Services pertaining to his daughter so that determinations concerning what information might be useful to defense might be properly made by his advocate. Id. We held that the Commonwealth’s interest in maintaining the confidentiality of these records could not override a defendant’s right to confront and cross-examine the witnesses against him. The United States Supreme Court reversed our holding in part in Pennsylvania v. Ritchie, affirmed in part, reversed in part, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).

Our decision in Ritchie, supra was based upon our view of how the United States Supreme Court would balance a defendant’s sixth amendment right to confrontation under the federal constitution against a victim’s competing statutorily protected right to maintain the confidentiality of records of assault in the possession of the state. The issue currently before this Court arises not under the federal constitution but rather under our State Constitution and does not involve a request to discover statutorily protected state maintained records but rather a request to produce Psychotherapy records in the possession of a hospital where treatment was administered.

While the minimum federal constitutional guarantees are equally applicable to the analogous state constitutional provisions, the state has the power to provide broader standards than those mandated by the federal constitution. Commonwealth v. Sell, 504 Pa. 46, 63, 470 A.2d 457 (1983). See also Prune-Yard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980), Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). Appellant would require that we not only apply our holding in Ritchie to the facts of his case but that we extend it to hold that the confrontation and compulsory process clause of the Pennsylvania Constitution require that appellant’s counsel be given access to the victim’s entire psychotheraputic record.

In Ritchie we determined that the defendant was denied his sixth amendment right to confrontation under the federal constitution when his attorney was denied total access to The Child Welfare Service records. We now hold under the confrontation clause of the Pennsylvania Constitution, that the appellant in the instant action was denied his right to confrontation when his attorney was denied access to the contents of the victim’s psychotheraputic records. In addition we hold that the right to inspect these records is also mandated by the compulsory process clause of the Pennsylvania Constitution. Our reasoning in this regard is guided by this Court’s decision in Commonwealth v. Smith, 417 Pa. 321, 208 A.2d 219 (1965). In Smith the issue was whether the defendant had the right to inspect certain witness statements in the possession of the Federal Bureau of Investigation. While discussing the appellant’s right to access this information, Justice Musmanno writing for the majority stated, “Smith had the right to, and great need for, the statements he requested. The 6th Amendment to the Constitution of the United States guarantees to the accused the right to have compulsory process for obtaining witnesses in his favor and to have the assistance of Counsel for his defense.” Smith, 417 Pa. at 329, 208 A.2d at 223. Though the issue in Smith was resolved under the United States Constitution, it is clear that the Court intended to afford similar protection under the Pennsylvania Constitution when it said, “Of course, Article 1, section 9 of the Pennsylvania Constitution is equally applicable.” Smith, 417 Pa. at 329 n. 2, 208 A.2d at 223 n. la.

We now turn to the Commonwealth’s argument that the appellant waived his right to review the statement of the complainant as contained in the record of her psychiatric treatment. We note that appellee initially attempted to gain access to all of the victim’s records. The Commonwealth argues that appellant has waived the right to inspect any statements contained therein as a request to inspect specific statements was not made. This argument is devoid of merit for logic dictates that appellant’s request to view the entire record would naturally encompass the right to view any statements made by the victim. Further, by not having knowledge of the contents of these records he would not be expected to describe with particularity the specific statements which were the subject of the report.

We hold therefore that appellant’s counsel is entitled to see these hospital records in an in camera proceeding to insure their confidentiality. The trial court may issue such orders as will protect that confidentiality.

Accordingly, we reverse and order a new trial.

STOUT, Former Justice, did not participate in the decision of this case. LARSEN, J., files a dissenting opinion in which PAPADAKOS, J., joins.

LARSEN, Justice,

1 . Article 1 section 9 of the state constitution provides: In all criminal prosecutions the accused has a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment of information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.

The sixth amendment to Article 7 of the federal constitution provides: in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation: to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

2 . Act of November 26, 1975, P.L. 438, No. 124 §§ 1-26, 11 P.S. section 2201, et seq.