author:
BECK, Judge.
      POPOVICH, Judge,

text:
    647 A.2d 597
    COMMONWEALTH OF PENNSYLVANIA v. David G. STEWART, Jr. Appeal of the ROMAN CATHOLIC DIOCESE OF ALLENTOWN.
    Superior Court of Pennsylvania.
    Argued March 15, 1994.
    Decided Aug. 2, 1994.

      Maura K. Quinlan, Harrisburg, for appellant.
    Michael Dennehy, Danville, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge.

We address inter alia the scope of the Confidential Communications to Clergymen provision of 42 Pa.C.S.A. § 5943.

Appellee David Stewart (Stewart), was charged with the murder of Reverend Leo Heineman (the victim). Prior to trial, Stewart served a subpoena duces tecum on the Roman Catholic Diocese of Allentown (the Diocese), seeking a variety of documents he claimed were relevant to his defense. The Diocese opposed the requests based on the clergymen privilege and constitutional rights of religious freedom. The trial court ordered that the documents be produced for an in camera inspection to determine whether they could be withheld from discovery as privileged material. The Diocese appealed the trial court’s order and we now affirm.

In a homicide trial, a defendant asserting self-defense may introduce evidence of the violent and dangerous character of the victim in an effort to establish that the defendant reasonably believed that his life was in danger and the victim’s death was justified. See Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991). Where the evidence sought to be admitted is a prior act of violence not reduced to a criminal conviction, the law requires that the violent act or acts be known to the defendant at the time of the homicide. See Id. (victim’s prior acts of beating defendant admissible to corroborate defendant’s knowledge of victim’s violent character); Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984) (where appellant was not aware of victim’s prior arrest for assault, evidence of assault inadmissible). The incidents of violence cannot be remote in time and must be indicative of the victim’s aggressive and dangerous behavior. See Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371 (1979) (three year old assault conviction probative and admissible); Commonwealth v. Quarles, 310 Pa.Super. 74, 456 A.2d 188 (1983) (twenty two year old conviction inadmissible). See also Amos, supra (assault conviction more probative than larceny conviction).

Pursuant to the subpoena,, Stewart sought the following items of discovery:

1. All reports, letters and other documents pertaining to any allegations of misconduct or other disciplinary action regarding Rev. Leo Heineman.

2. All records, whether maintained directly by the Diocese of Allentown or by Saint Mauritius Church, Ashland, pertaining to Mardell Stewart, formerly known as Mardell Eames.

3. Copies of any Reports pertaining to any sexual misconduct by Rev. Leo Heineman.

4. Copies of all personal records, correspondence, diaries, or similar documents maintained by Rev. Leo Heineman, whether such documents were maintained at Saint Mauritis Church, or any other location.

5. Copies of any reports pertaining to any alcohol or other substance abuse or treatment by Rev. Leo Heineman.

6. Copies of W-2 or similar forms showing compensation paid by the Diocese of Allentown to Rev. Leo Heineman from 1986 to 1989.

The Diocese agreed to produce documents requested in items # 2 and # 6 but filed a motion to quash the subpoena with respect to the other items. In support of the motion, the Diocese offered the affidavit of the Reverend Monsignor Nev-in J. Klinger, Chancellor of the Diocese. Production of the documents was opposed on the following bases:

1. The church is hierarchical, with Canons promulgated by its highest governing authority, and two Canons require keeping a secret archive;

2. Archive documents are privileged under 42 Pa.C.S.A. § 5943 and the Pennsylvania Rules of Civil Procedure; and

3. The Canons are religious practices protected by the religious freedom guarantees of the United States and Pennsylvania Constitutions.

Preliminarily, we note that the Diocese did not object to the production of the documents on relevancy grounds, i.e., that even if produced, the documents would be inadmissible since they do not address specific acts of violence and do not pertain to acts of which appellee Stewart has personal knowledge. Indeed, the issue of relevance appears not to have, been raised by the Diocese at all and, therefore, cannot be the basis for our reversing the order of the trial court. Compare Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d 840, 843 (1984) (reviewing court may affirm trial court on any ground) with Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256, 257 (1975) (Superior Court may not consider unpresented issue and must resolve appeal on the basis of issues raised by the parties). We are mindful, however, that the trial judge stated in his opinion that he intends to inspect the documents for relevance as well as privilege. Trial Ct.Op. at 7.

We now address the issues that the Diocese preserved for our review. In support of its motion to quash the subpoena, the Diocese relied heavily on 42 Pa.C.S.A. § 5943, Confidential Communications to Clergymen. The statute provides that no clergyman shall be compelled to disclose information he has acquired while in the course of his duties. The Diocese’s argument, as recited in Reverend Monsignor Klingers affidavit, is as follows:

The bishop fulfills [his] duties in conjunction with his priests, over whom he exercises hierarchical authority. Thus, a bishop maintains a special relationship with his priests. He provides primary support and guidance for them concerning their spiritual lives and the faithful performance of their mission within the Church. Free, frank and confidential communication between the bishop and his priests must be protected so that the bishop can fulfill his obligations to his priests and the faithful under the prescriptions of Canon Law. A bishop must be able to candidly discuss with a priest his character, talents, spiritual life, health, and pastoral or familial problems and concerns in order to be able to assign the priest to compatible duties and to provide him with appropriate guidance in the conduct of his affairs and ministry to the faithful.

Affidavit of Rev. Monsignor Nevin J. Klinger, J.C.L. at ¶ 10. Essentially, the Diocese argues that all information in its hands is confidential under the statute.

The trial court was not satisfied with the argument offered by the Diocese. It found that the affidavit did not sufficiently establish that the information sought to be withheld fell within the statute. The trial judge did not require that the documents be turned over, instead it ordered the Diocese to produce the documents for an in camera review to determine if the privilege provided for in § 5943 was applicable.

In reaching its decision, the trial court relied on previous decisions of this court which define the limitations of § 5943. In Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990), alloc. denied, 527 Pa. 631, 592 A.2d 1299 (1991), a panel of this court held that “our legislature did not intend a per se privilege for any communication to a clergymen based on his status” and, further, the court must “look to the circumstances to determine whether [the] statements were made in secrecy and confidence to a clergyman in the course of his duties.” Id. at 343-44, 572 A.2d at 1265.

, In a case directly analogous to this matter, another panel of this court was confronted with the question of whether § 5943 could be invoked by the Diocese of Altoona-Johnstown to preclude a party from seeking documents pertaining to alleged sexual misconduct by specific priests. Hutchinson v. Luddy, 414 Pa.Super. 138, 606 A.2d 905 (1991). The same canons recited in Reverend Monsignor Klinger’s affidavit were used for support in the Luddy case. The Luddy court first recognized that “insofar as the canons of the Church are in conflict with the law of the land, the canons must yield.” Id. at 145, 606 A.2d at 908 (citing St. Joseph’s Lithuanian Roman Catholic Church’s Petition, 273 Pa. 486, 492-93, 117 A. 216, 218 (1922)).

Addressing whether and to what extent the privilege set out in § 5943 applied, the Luddy court held that information protected by the statute is limited to information told in confidence to clergymen in their role as confessor or counsel- or. Id. at 146-48, 606 A.2d at 909 (emphasis supplied) (citing Fahlfelder v. Com., Pennsylvania Board of Probation, 80 Pa.Cmwlth. 86, 90, 470 A.2d 1130, 1133 (1984)). “The mere fact that a communication was made to a clergyman or documentation was transmitted to a clergyman is insufficient in itself to invoke the privilege.” Id. (citations omitted).

The Luddy court ultimately affirmed the trial court’s decision to grant the discovery requests. The order by the trial court had provided that in the event an in camera review revealed that the documents were not privileged material, i.e., were not acquired by a priest and/or bishop in his role as a confessor/counselor, discovery would be required. The Luddy court rejected the Church’s argument that any and all information in its secret archives automatically qualified as privileged under the statute.

We find the Luddy decision applicable to this case. The motion to quash does not set forth adequate reasons why the information sought to be withheld falls within the privilege. The supporting affidavit is so broad that it seeks to preclude from production any and all documents in the Diocese’s possession. Section 5943 does not provide such sweeping protection and the trial judge was correct in ordering the Diocese to produce the documents for an in camera inspection so that he could determine whether the privilege applies. It may be that some or all of the documents fall within the statutory privilege as it is defined in our case law. In that event, the trial court will not order production of those documents. However, it is clear that the statute does not provide blanket protection for all documents in the hands of the Diocese simply because of the Diocese’s status as a religious organization.

The other argument advanced by the Diocese is that production of the documents constitutes a violation of its constitutional right of free exercise of religion. We agree with the trial court that a claim of religious freedom may be outweighed by the compelling interest of the state in pursuing the truth. The Luddy court addressed the same issue and held that the Free Exercise Clause did not prohibit an order requiring the Church to turn over documents for in camera review. After analysis of several federal cases interpreting the contours of the First Amendment and the rights of religious organizations to proceed without interference from the government, the Luddy court stated:

We hold, consistently with the decided cases, that where the only action required of a religious institution is the disclosure of relevant, non-privileged documents to an adversary in civil litigation, such action, without more, poses no threat of governmental interference with the free exercise of religion.

Luddy, 414 Pa.Super. at 152, 606 A.2d at 912. The fact that this is a criminal action does not persuade us to rule differently with respect to this issue. The rights of a criminal defendant to secure a fair trial are even more compelling than the interests involved in civil litigation. Further, we find the Diocese’s claim that production of the documents “would have a serious deleterious impact upon the whole function of the Church” to be unsupported. We therefore reject the Diocese’s free exercise argument.

After studying the record and the trial court’s opinion, we are confident that the result reached by the trial court is fair and appropriate under these circumstances. Neither the statute nor our constitutions grant the Diocese the right to withhold from production all documents in its possession. After a careful in camera review of the documents, based on both relevance and privilege, the trial court will inform the parties which documents, if any, are to be produced.

Order denying the Diocese’s motion and requiring it to produce the challenged documents for in camera review affirmed. Matter remanded for further proceedings. Jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting.

Because I construe the language of 42 Pa.C.S.A. § 5943 in a light differently than my esteemed colleagues, I cannot, in good conscience, subscribe to the analysis of this statute espoused by our Court in Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990), and Hutchison v. Luddy, 414 Pa.Super. 138, 606 A.2d 905 (1992), and applied by the Majority herein.

The privilege attaching to confidential communications made to clergy stems chiefly from statutorily enacted law rather than common law. See 8 Wigmore, Evidence § 2394 (McNaughton Rev.Ed). In Pennsylvania, our General Assembly has provided the following law in recognizing that privilege:

§ 5943. Confidential communications to clergymen

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978. 42 Pa.C.S.A. § 5943 (emphasis added). In evaluating the question of which communications to the clergy are privileged, our courts must give heed to the words enunciated by our General Assembly in its enactment of § 5943.

“[T]his Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it.” Key Sav. and Loan Ass’n v. Louis John, Inc., 379 Pa.Super. 226, 232, 549 A.2d 988, 991 (1988), appeal denied, 523 Pa. 632, 564 A.2d 1260 (1989), citing, Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983). “[W]hen the letter of a statute is clear and unambiguous, this Court is not free to engraft additional verbiage upon it in a supposed effort to pursue its spirit.” Black v. Billy Penn Corporation, 72 Pa. Commw. 628, 632, 457 A.2d 192, 193 (1983), citing, 1 Pa.C.S.A. § 1921(b). See Amendola v. Civil Service Commission of Crafton Borough, 139 Pa.Commw. 76, 589 A.2d 775, 777 (1991) (a court lacks power to insert words into statutory provisions where the legislature has failed to supply them). “We are to presume the legislature did not intend a result that is absurd or unreasonable.” Commonwealth v. Runion, 427 Pa.Super. 217, 220, 628 A.2d 904, 906 (1993), citing, Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989).

Here, the lower court, guided by decisions in Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990), alloc. denied, 527 Pa. 631, 592 A.2d 1299 (1991), and in Fahlfeder v. Pa. Board of Probation and Parole, 80 Pa. Commw. 86, 470 A.2d 1130 (1984), found that the privilege is limited to information told in confidence to a clergyman in his role as a counselor or confessor. The court below determined that the Diocese had failed to establish that the information was obtained from a confessional or counselable relationship and thus rejected the Diocese’s assertion that the documents were protected from disclosure under § 5943.

In Patterson, 392 Pa.Super. at 341-45, 572 A.2d at 1264-65, and in Hutchison v. Luddy, 414 Pa.Super. 138, 145-50, 606 A.2d 905, 909-910 (1992), appeal discontinued, 531 Pa. 640, 611 A.2d 712 (1992), panels of our Court interpreted the language of § 5943 to limit the privilege to communications made for religious purposes wherein spiritual advice or forgiveness was sought.

The Diocese maintains that the General Assembly could have drafted the statute, as other states have done, to include words expressly limiting the privilege of confidential communication to clergy to information where the clergyman is acting in the sacramental capacity of a confessor or as a spiritual advisor. Indeed, § 5943 is completely devoid of such language requiring that privileged information be limited to that context. Instead, our General Assembly provided, “No clergyman ... who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding____” 42 Pa.C.S.A. § 5943 (emphasis added). Contra N.Y.Civ.Prac.L. & R. 4505 (McKinney) (“Unless the person confessing or confiding waives the privilege, a clergyman ... shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor.”); People v. Carmona, 82 N.Y.2d 603, 627 N.E.2d 959, 606 N.Y.S.2d 879 (1993) (confidential communication made pursuant to seeking spiritual help is privileged); People v. Schultz, 161 A.D.2d 970, 557 N.Y.S.2d 543 (1990), appeal denied, 564 N.E.2d 683, 563 N.Y.S.2d 73 (privilege not attaching where confidential communication between defendant and clergyman was not spiritual in nature); People v. Drelich, 123 A.D.2d 441, 506 N.Y.S.2d 746 (1986) (same). Contra Ohio Rev.Code Ann. § 2317.02(c) (“The following persons shall not testify in certain respects ... a clergyman ... concerning a confession made, or any information confidentially communicated, to him for a religious counseling purpose in his professional character.”); Radecki v. Shuckardt, 50 Ohio App.2d 92, 361 N.E.2d 543 (1976) (privilege not applicable to confidential communication not for confessional purposes). Contra Cal.Evid.Code §§ 1030-1034 (statutory privilege protects penitential communication); People v. Edwards, 203 Cal.App.3d 1358, 248 Cal.Rptr. 53 (1988) (privilege not attaching to statements made for purpose of seeking secular counseling rather than for absolution).

Upon assessing the language of § 5943, I find that the only requirement for the information to be privileged is that the communication be made secretly and in confidence while the clergyman is in the course of his duties. Compare ULRev. Stat. ch. 735, § 5/8-803 (“A clergyman ... shall not be compelled to disclose in any court ... a confession or admission made to him or her in his or her professional character or as spiritual advisor in the course of the disciplined enjoined ..., nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.”); Snyder v. Poplett, 98 Ill.App.3d 359, 53 Ill.Dec. 761, 424 N.E.2d 396 (1981), (confidential communication between clergyman and testatrix concerning source of testatrix’s assets in will contest was protected from disclosure under clergyman’s privilege). If the General Assembly intended the privilege to be limited to communications confessional or counselable in nature, it could have easily incorporated words confining the privilege as such. Instead, the General Assembly painstakingly enacted § 5943 without requiring the privilege to be limited to the aforementioned forms of communication. Contrarily, the majority and our Court’s panel decisions in Patterson, supra, and Hutchison, supra, have inserted words into the plain meaning of § 5943 thereby straining the applicability of the privilege. Compare Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979) (improper for court to add a phrase in its construction of statute where that construction affects scope of statute). Because our Court has essentially re-written § 5943, I find that the works of our legislature have been thwarted. Should change in § 5943 be considered prudent, that change must come from the General Assembly and not from this Court. See Black v. Billy Penn Corp., 72 Pa.Commw. at 430-32, 457 A.2d at 193.

Further, upon evaluating the language of § 5943 in relationship to the language of other sections enacted by the General Assembly which provide for privileged communications, I find § 5943’s scope of privileged communications to be distinguishable. The privileges available under 42 Pa.C.S.A. §§ 5942, 5944 and 5945.1, provide clear limitations for the information to be protected from disclosure. Those sections provide express statements as to the recipient’s role or function for the communication to be privileged. Section 5942 reads as follows:

(a) General rule. — No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.

42 Pa.C.S.A. § 5942 (emphasis added). Section 5944 states:

No person who has been licensed ... to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

42 Pa.C.S.A. § 5944 (emphasis added). Section 5945.1 sets forth definitions clearly explaining the scope of which communications are privileged between the victim and the sexual assault counselor. For example, that section defines the role of the sexual assault counselor as, “[a] person who is engaged in any office, institution or center defined as a rape crisis center under this section ... whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.” 42 Pa.C.S.A. § 5945.1(a).

“Where a statute with respect to one subject contains a given provision, the omission of such provision from a similar statute is significant to show a different intent existed.” Richerson v. Jones, 551 F.2d 918 (3d Cir.1977). Compare Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979) (Supreme Court quotes Richerson, supra, in case where sections within same statute differ in inclusion of provision). Sections 5942, 5943, 5944 and 5945.1 all provide privileges for confidential communication. However, whereas §§ 5942, 5944 and 5945.1 contain provisions or language limiting the scope of which confidential communications are privileged, § 5943 does not. Because of this omission, I find that the General Assembly intended to give broader protection to confidential communication to clergy than determined by our Court in Patterson, supra, and Hutchison, supra.

The Majority herein finds that an in camera review of the documents requested by defendant would properly determine which documents are privileged within the scope of § 5943. However, I am of the opinion that such an inspection would make the clergy privilege an illusory one. An in camera review of documents that are absolutely privileged constitutes error. Commonwealth v. Kennedy, 413 Pa.Super. 95, 111-13, 604 A.2d 1036, 1045 (1992) (en banc), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992) (records of confidential communication between sexual assault victim and psychotherapist are absolutely privileged pursuant to 42 Pa.C.S.A. § 5945.1, and not subject to in camera review).- Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987) (psychologist-client privilege established by 42 Pa.C.S.A. § 5944 is absolute and not subject to in camera review). See Commonwealth v. Wilson/Aultman, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, — U.S.-, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992) (privilege codified at 42 Pa.C.S.A. § 5945.1 is absolute); Hatchard v. Westinghouse Broadcasting Company, 516 Pa. 184, 532 A.2d 346 (1987) (although 42 Pa.C.S.A. § 5942 provides absolute privilege of confidential communication between media and informant, protection not attaching to non-confidential material in defamation case). Contrast Commonwealth v. Eck, 413 Pa.Super. 538, 545, 605 A.2d 1248, 1252 (1992) (“[A] privilege which is statutorily enacted, but which is subject to exceptions, is not absolute and access to a criminal defendant may be required.”); Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (since 11 P.S. § 2215 (now 23 Pa.C.S.A. § 6339) provided various exceptions to non-disclosure of information, privilege was not absolute and thus information was subject to in camera review).

Section 5943 does not contain language qualifying or excepting the privilege. In light of the foregoing cases, I find that § 5943 affords an absolute privilege to communication within its purview. Having addressed the question of which communications are privileged within the scope of that section, I find that the information sought to be protected from disclosure by the Diocese satisfies the requirements to be privileged communication. Consequently, I conclude that an in camera review of that information would constitute error. “Subjecting the confidential [information] to in camera review by the trial court (as well as the appellate courts and staff members) would ... undermine the public interests supporting the privilege. Simply stated, an absolute privilege of this type and in these circumstances requires absolute confidentiality.” Kennedy, 413 Pa.Super. at 115-16, 604 A.2d at 1047. “It should be readily apparent that the general powers of courts do not include the power to order disclosure of materials that the legislature has explicitly directed to be kept confidential.” Id. at 116, 604 A.2d at 1047, quoting, Commonwealth v. Moore, 526 Pa. 152, 159, 584 A.2d 936, 940 (1991).

      . Where a previous violent act has been reduced to a conviction, the defendant may use that conviction, regardless of whether he had previous knowledge of it, to prove the violent propensities of the victim and to establish that the victim was the aggressor. See Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971).

      . Section 5943 provides:
      No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without the consent of such person, to disclose that information in any legal proceeding, trial or investigation before any governmental unit.
      42 Pa.C.S.A. § 5943.

      . The Luddy court also faced the question of whether the order at issue, a discovery order, was appealable. There, the Altoona-Johnstown Diocese requested and received from the trial court a stay of the action and certification for immediate appeal. The Luddy majority found that the order was appealable because it was collateral to the principal action, involved a right too important to be denied review, and could not be postponed until final judgment as the claimed right would be irreparably lost. See Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).
      Like the Luddy court, we find the Cohen and Pugar rationales applicable to these facts. This appeal, therefore, is properly before us.

      . The Luddy court also made a series of findings with respect to relevancy and denied several of the discovery requests because they were overbroad and did not pertain to the issues in the case.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    647 A.2d 907
    COMMONWEALTH of Pennsylvania, Appellant v. William SMITH.
    Superior Court of Pennsylvania.
    Argued April 5, 1994.
    Filed Sept. 7, 1994.

      Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellant.
    Jay Stillman, Williamsport, for appellee.
    Before ROWLEY, President Judge, and KELLY and POPOVICH, JJ.
   KELLY, Judge:

The Commonwealth asks us to determine whether the trial court erred in its order entered May 19, 1993, denying the Commonwealth’s motion to use the transcript of the preliminary hearing for purposes of introducing the substantive testimony of its key witness, Blaine Cain. The specific circumstances of this case compel us to affirm.

The relevant facts and procedural history are as follows. On June 25, 1992, appellee was charged by criminal complaint with possession of a controlled substance with intent to deliver and delivery of a controlled substance. A preliminary hearing occurred on July 10,1992 where the Commonwealth’s chief witness, Blaine Cain, testified against appellee. Mr. Cain testified that he had been acting as á confidential informant for the Commonwealth, something he had done on several past occasions. On this particular incident of February 20, 1992, Mr. Cain allegedly purchased cocaine from appellee. This purchase was the basis for the charges against appellee and the substance of Mr. Cain’s testimony at the preliminary hearing. Defense counsel did cross-examine Mr. Cain at the preliminary hearing about the drug purchase, but he did not question Mr. Cain about his custodial status although Mr. Cain appeared at the preliminary hearing wearing prison garb and in the custody of the deputy sheriffs office. The Commonwealth, however, had not disclosed to defense counsel that Mr. Cain had a prior criminal record or that he had a pending robbery charge. Mr. Cain’s preliminary hearing testimony was duly recorded and preserved. Following the preliminary hearing, appellee was bound over to the Court of Common Pleas for trial.

On the day scheduled for trial, May 19, 1993, Mr. Cain informed the Commonwealth that he did not intend to testify. The Commonwealth immediately notified all interested parties, and a hearing was held to determine why Mr. Cain would not testify. Mr. Cain indicated an intention to invoke his Fifth Amendment privilege against self-incrimination. The Commonwealth offered Mr. Cain use immunity for his testimony, but Mr. Cain steadfastly refused to testify. The trial court advised Mr. Cain that his testimony could not be used against him under a grant of use immunity. The trial court then ordered Mr. Cain to testify. Mr. Cain refused, and the trial court held him in contempt of court. The Commonwealth then asked the trial court to declare Mr. Cain unavailable and to admit his prior testimony at trial.

On the following day, May 20, 1993, Mr. Cain again refused to testify. As a result, the trial court sentenced him to one year imprisonment in a state correctional institution for contempt. The trial court proceeded to hear arguments from both the Commonwealth and defense counsel on whether Mr. Cain’s prior testimony should be admitted at trial. Defense counsel argued in his oral motion in limine that Mr. Cain’s testimony should not be admitted at trial because defense counsel, lacking information about Mr. Cain’s prior record and pending robbery charge, did not have a full and fair opportunity to cross-examine Mr. Cain at the preliminary hearing. At the conclusion of the May 20, 1993 hearing, the trial court found that Mr. Cain was unavailable but that his testimony would not be admissible at trial because defense counsel had not been aware of Mr. Cain’s prior record and his pending robbery charge, both of which the trial court deemed relevant to Mr. Cain’s credibility. The trial court granted appellee’s oral motion in limine, thus precluding the Commonwealth from introducing the preliminary hearing transcript of Mr. Cain’s testimony.

In making its decision, the trial court stressed that “charges of significant nature, a felony” against Mr. Cain had been dismissed in November of 1991. (N.T. 5/20/93 at 15). Other charges, not specified by the trial court, were also dismissed in November of 1991. Again, in January of 1992, charges against Mr. Cain were dismissed. In addition, the trial court emphasized that Mr. Cain had been charged with robbery in March of 1992, which was between the time of the alleged drug purchase from the defendant (February 2, 1992) and appellee’s preliminary hearing (July 10, 1992). (N.T. 5/20/93 at 15). The March, 1992 robbery charge was dismissed prior to the preliminary hearing; Mr. Cain pled guilty to theft. To further complicate his history, Mr. Cain had yet another robbery charge pending against him when he testified at appellee’s preliminary hearing. He was thereafter tried and convicted of this robbery offense at a jury trial. (N.T. 6/17/93 at 9). In light of Mr. Cain’s long and complicated criminal history, the trial court determined, now that defense counsel knows of these matters, counsel could have challenged Mr. Cain’s credibility, but only if given the opportunity to question Mr. Cain at trial. (N.T. 5/20/93 at 15; N.T. 6/17/93 at 10). Accordingly, the trial court granted appellee’s oral motion in limine to exclude Mr. Cain’s preliminary hearing testimony at trial, thereby preventing the Commonwealth’s use of the transcript in lieu of Mr. Cain’s actual appearance and live testimony at appellee’s trial. The trial court’s order also continued appellee’s case pending an appeal to this Court based on the Commonwealth’s representation that the trial court’s ruling substantially handicapped the prosecution from going forward with its case against appellee.

The trial court reconsidered its order at a hearing held on June 17, 1993. At the hearing, stipulations were offered to place on the record additional facts which had not been presented at the May 20, 1993 hearing. The Commonwealth offered for stipulation that (1) Mr. Cain was not on parole at the time of the preliminary hearing; (2) a robbery charge against Mr. Cain was dismissed due to insufficient evidence, not because of any agreement with Mr. Cain in exchange for his testimony; and, (3) Mr. Cain actually received no deal for his cooperation at the preliminary hearing. Defense counsel agreed to the above stipulations with the proviso that he would stipulate only to what objectively had occurred, not to any subjective expectation for leniency which Mr. Cain might have had at the time of his preliminary hearing testimony. Following the June 17, 1993 reconsideration hearing, the trial court again denied the Commonwealth’s petition to admit Mr. Cain’s testimony from appellee’s preliminary hearing. Thus, the Commonwealth timely instituted this appeal.

The Commonwealth raises the following issue for our review:

DID THE LOWER COURT ERR IN PRECLUDING THE COMMONWEALTH FROM USING AT TRIAL THE TRANSCRIPT OF THE PRELIMINARY HEARING TESTIMONY OF A MATERIAL WITNESS WHO SUBSEQUENTLY REFUSED TO TESTIFY AT TRIAL AND THUS BECAME UNAVAILABLE TO THE COMMONWEALTH?

Commonwealth’s Brief at 4.

The admissibility of evidence is a matter committed to the sound discretion of the trial court; absent an abuse of that discretion, the trial court’s rulings on admissibility will not be overturned on appeal. Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992). Hearsay is an out-of-court statement offered in court to prove the truth of the matters asserted therein. Commonwealth v. Bujanowski, 418 Pa.Super. 163, 613 A.2d 1227 (1992), appeal denied, 533 Pa. 642, 622 A.2d 1374 (1993). Hearsay statements are generally inadmissible as evidence because the declarant’s competency and credibility cannot be assessed. Id.

“Exceptions to the hearsay rule have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rale.” Id. at 169, 613 A.2d at 1230 (quoting Commonwealth v. Haber, 351 Pa.Super. 79, 83, 505 A.2d 273, 275 (1986)). Proponents of hearsay testimony must demonstrate the reliability and trustworthiness of the proposed statements before those statements will be admitted as substantive evidence. Id. The oath requirement is one assurance of reliability. Id. “The trustworthiness of a statement should be analyzed by evaluating not only the facts corroborating the veracity of the statement, but also the circumstances in which the declarant made the statement and the incentive he had to speak truthfully or falsely.” United States v. Bailey, 581 F.2d 341, 349 (3d Cir.1978).

Pennsylvania common law permits, as an exception to the hearsay rule, the admission of prior recorded testimony from a preliminary hearing provided that (1) the witness responsible for that testimony is presently unavailable; (2) the defendant had counsel; and (3) the defendant had a full and fair opportunity to cross-examine the declarant during the earlier proceeding. Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d 924 (1990); Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986); Commonwealth v. Melson, 432 Pa.Super. 1, 637 A.2d 633 (1994); Commonwealth v. Carbaugh, 423 Pa.Super. 178, 620 A.2d 1169 (1993); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). As well, the issues in the prior proceeding and the purpose for which the testimony was there offered “must have been such that the present opponent had an adequate motive for testing on cross-examination the credibility of the testimony now offered.” Commonwealth v. Velasquez, 449 Pa. 599, 601 n. 3, 296 A.2d 768, 770 n. 3 (1972); Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982).

The true test for unavailability of a witness is whether the prosecution has made a good faith effort to produce the live testimony of the witness and, through no fault of its own, is prevented from doing so. Commonwealth v. Melson, supra at 11, 637 A.2d at 638 (citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). How far the prosecution must go to produce the recalcitrant witness’ testimony is a question of reasonableness. Id.

In the case at hand, Mr. Cain steadfastly refused to testify at appellee’s trial, notwithstanding the Commonwealth’s offer of use immunity or the court’s order compelling his testimony. As a result, the trial court found Mr. Cain in contempt of its order and sentenced him to one year in prison. Additionally, the trial court determined that the Commonwealth exercised all reasonable efforts to compel Mr. Cain’s live testimony at trial. Nevertheless, Mr. Cain refused to testify at appellee’s trial. We agree with the trial court that the Commonwealth has carried its burden to show Mr. Cain is unavailable for the purposes of the hearsay rule exception which would allow the Commonwealth to introduce Mr. Cain’s prior recorded testimony at trial. See Commonwealth v. Melson, supra (witness’ refusal to testify despite a court order to do so constitutes unavailability); Commonwealth v. Carbaugh, 423 Pa.Super. 178, 620 A.2d 1169 (1993) (witness unavailable due to untimely death); Commonwealth v. Jones, 344 Pa.Super. 420, 496 A.2d 1177 (1985) (partial lack of memory rendered witness unavailable).

Whether Mr. Cain’s prior recorded testimony from appellee’s preliminary hearing should be admitted at appellee’s trial depends, therefore, on whether defense counsel had a full and fair opportunity to cross-examine Mr. Cain at that preliminary hearing. The Commonwealth submits that appellee had the benefit of counsel and an opportunity to cross-examine Mr. Cain at the preliminary hearing. Although the Commonwealth admits that it did not disclose Mr. Cain’s prior criminal history or his pending criminal charges to the defense, the Commonwealth is willing to stipulate to the following:

(1) Mr. Cain was not on parole at the time of his prior testimony;

(2) Mr. Cain has a prior criminal record, the contents of which can be used by the defense for impeachment purposes without asking Mr. Cain about it directly;

(3) Mr. Cain had criminal charges pending against him at the time of his testimony against appellee;

(4) Mr. Cain and the Commonwealth had no agreement regarding those pending charges in exchange for his testimony; and

(5) Mr. Cain actually received nothing in exchange for his testimony.

An agreement as to these stipulated facts, proffers the Commonwealth, provides the same impeachment value as would the live cross-examination of Mr. Cain at trial. We disagree.

A criminal defendant has a right to cross-examine an adverse witness, according to our federal and state constitutions. Commonwealth v. McGrogan, supra.

Although we have recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, we have also been careful not to equate the Confrontation Clause’s prohibitions with the general rule prohibiting the admission of hearsay statements. The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). For example, the hearsay exception allowing prior testimony of an unavailable witness will not prevail where the prior testimony was not subject to a full opportunity for cross-examination. Commonwealth v. Mangini, 493 Pa. 203, 425 A.2d 734 (1981). “Any procedural evidentiary system must conform to the requirements of fundamental fairness and due process.” Id. at 210, 425 A.2d at 738. See Commonwealth v. Munchinski, 401 Pa.Super. 300, 585 A.2d 471 (1991), appeal denied, 529 Pa. 618, 600 A.2d 535 (1991) (although technically admissible under the prior recorded testimony of an unavailable witness exception to the hearsay rule, codefendant’s testimony from his bench trial was inadmissible to exculpate appellant at appellant’s trial because the Commonwealth did not have a foil and fair opportunity to cross-examine codefendant at his trial).

[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it. The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case. While the rule stated today is new, its formulation is actually a matter of evolution rather than innovation. As far back as 1909, this Court stated:

It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial.... The right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party.

Commonwealth v. Cheatham, 429 Pa. 198, 203, 239 A.2d 293, 296 (1968), quoting from Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 70 A. 884, 885 (1908). While we have always acknowledged the right of a party to impeach by showing bias, new in the present case is our willingness to acknowledge what we had previously thought was too speculative: that a prosecution witness may be biased because of the expectation of leniency in some pending matter even when no promises have been made. Thus, we hold that the right guaranteed by Art. I Section 9 of the Pennsylvania Constitution to confront witnesses against a defendant in a criminal case entails that a criminal defendant must be permitted to challenge a witness’s self-interest by questioning him about possible or actual favored treatment by the prosecuting authority in the case at bar, or in any other non-final matter involving the same prosecuting authority.

Commonwealth v. Evans, 511 Pa. 214, 224-26, 512 A.2d 626, 631-32 (1986) (footnote omitted) (emphasis added). Accord Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989).

A preliminary hearing, in general, is a much less searching exploration into the merits of a case than a trial because a preliminary hearing serves the limited function of establishing a prima facie case against the accused. Commonwealth v. Fox, 422 Pa.Super. 224, 234, 619 A.2d 327, 332 (1993), appeal denied, 535 Pa. 659, 634 A.2d 222 (1993). “Credibility is not ah issue at a preliminary hearing.” Id. (citations omitted).

On the other hand, the opportunity to impeach a witness is particularly important where the Commonwealth’s entire case hinges upon the testimony of the unavailable witness. Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992). The Court in Commonwealth v. Bazemore, supra, held that defense counsel was denied a full and fair opportunity to cross-examine a Commonwealth witness when the Commonwealth withheld vital impeachment evidence. Although the Court focused on a prior inconsistent statement made by the witness (known to the Commonwealth but not revealed to defense counsel), the Court also noted the Commonwealth’s failure to reveal the witness’ prior criminal record. Id. at 588, 614 A.2d at 687. Even though the Commonwealth submitted at trial that the impeachment evidence would be indirectly offered through the testimony of others, the Bazemore Court stated that such introduction was “clearly an inadequate substitute for a full and fair opportunity to examine the witness himself.” Id. at 589 n. 4, 614 A.2d at 687 n. 4.

The principles enunciated in Commonwealth v. Bazemore, supra, were reinforced in Commonwealth v. Stinson, 427 Pa.Super. 289, 628 A.2d 1165 (1993), appeal denied, 537 Pa. 608, 641 A.2d 309 (1994), authored by our distinguished colleague, Judge Popovich. This Court held that defense counsel had not been offered a full and fair opportunity to cross-examine the witness at the preliminary hearing. In Stinson, defense counsel attempted to attack the witness’ credibility at the preliminary hearing by inquiring into his past criminal convictions. The Commonwealth objected, however, and that objection was sustained; thus, defense counsel was precluded from testing the witness’ testimony. The Stinson Court ruled that under the circumstances, the trial court committed an error of law in admitting the preliminary testimony of the witness. The Court affirmed the judgment of sentence; the error was deemed harmless because the Commonwealth presented two other key witnesses, one of whom was an eyewitness to the crime. The Court concluded that the unavailable witness’ testimony was merely cumulative. Id. at 302, 628 A.2d at 1171-72.

Whether the testimony to be introduced at trial as substantive evidence was given at a prior trial or other proceeding, the applicable standard is that of full and fair opportunity to cross-examine. Commonwealth v. Bazemore, supra at 588, 614 A.2d at 685. Thus, the procedural posture of the case at bar does not change the standard for determining the admissibility of Mr. Cain’s prior testimony.

Given the significance of Mr. Cain’s testimony, as the only eyewitness in the instant case, his credibility has become a key issue for trial. Unfortunately, the unavailability of Mr. Cain’s live testimony at trial forecloses appellee’s opportunity to put to the jury Mr. Cain’s subjective expectations, if any, of a deal in exchange for his testimony in favor of the Commonwealth. Appellee has the right to explore the possibility of any coercive power, that the Commonwealth might have had over Mr. Cain, which may have been an incentive for Mr. Cain to testify favorably for the Commonwealth. Commonwealth v. Lipscomb, 269 Pa.Super. 219, 409 A.2d 857 (1979). See Commonwealth v. Johnston, 434 Pa.Super. 451, 644 A.2d 168 (1994) (appellant granted a new trial where the Commonwealth failed to disclose a plea bargain between the Commonwealth and its only eyewitness directly linking appellant to the crime charged). Notwithstanding the Commonwealth’s willingness to enter stipulations of an objective nature, such stipulations are an inadequate substitute for cross-examination in a criminal setting. See Commonwealth v. Bazemore, supra at 586, 614 A.2d at 686. Moreover, defense counsel refused to stipulate to the existence or nonexistence of Mr. Cain’s subjective expectations, the nature and extent of which would go directly to his bias or interest. See Commonwealth v. Evans, supra. The potential for bias or interest on the part of this witness is a matter which appellee has a right to put to the jury. Because Mr. Cain has refused to testify, appellee is foreclosed from exploring the bias issue. The Commonwealth’s proposed stipulations are not an effective remedy for the denial of appellee’s right.

The fact that Mr. Cain’s testimony at the preliminary hearing was given under oath is not dispositive on the issue of the trustworthiness and reliability of that testimony. First, Mr. Cain had not only a prior record but also a history of dismissed charges quite possibly related to his role as a confidential informant in prior instances. Second, Mr. Cain had a robbery charge pending against him at the time of the preliminary hearing. The relevant parties do not dispute that, just before his testimony, Mr. Cain and his supervising law enforcement officer engaged in a heated argument, after which the witness evidenced some reluctance to testify. Following more discussion, the witness did testify favorably for the Commonwealth. Nevertheless, appellee did not have an opportunity to explore Mr. Cain’s reasons for ultimately testifying as he did. Mr. Cain’s credibility was simply not an issue at the preliminary hearing. See Commonwealth v. Fox, supra. More appropriately a matter for trial, Mr. Cain’s bias or interest must now go untested because of his unavailable live testimony. In balancing the competing interests of the Commonwealth’s need to admit Mr. Cain’s untested prior testimony and appellee’s right to put the matter of Mr. Cain’s potential bias or interest to the jury, we conclude that appellee’s right is paramount, especially in light of the fact that Mr. Cain was the only eyewitness to appellee’s alleged offense. See Commonwealth v. Stinson, supra.

Under the specific facts before us on this appeal, we affirm the trial court’s order denying the Commonwealth’s motion to use the transcript of Mr. Cain’s preliminary hearing testimony as substantive evidence against appellee at appellee’s trial under the “prior recorded testimony of an unavailable witness” exception to the hearsay rule. The use of the transcript in lieu of Mr. Cain’s live testimony does not meet the required safeguards of either the hearsay rules or the Confrontation Clause of our federal and state constitutions.

Order affirmed.

      . 35 P.S. § 780-113(a)(30).

      . Use immunity prohibits the use or derivative use of any testimony compelled over a claim of privilege. Commonwealth v. Swinehart, 434 Pa.Super. 123, 126, 642 A.2d 504, 506 (1994) (quoting Commonwealth v. Webster, 323 Pa.Super. 164, 170, 470 A.2d 532, 535 (1983)). “Immunity from use and derivative use is co-extensive with the scope of the privilege against self-incrimination, and therefore, is sufficient to compel testimony over a claim of the privilege.” Commonwealth v. Webster, supra at 170, 470 A.2d at 535) (citation omitted). The prosecution may still prosecute the witness for crimes arising out of the transaction testified to so long as the prosecution's evidence is obtained from a source wholly independent of the compelled testimony. Id. In contrast, transactional immunity provides a witness full immunity from prosecution for crimes arising out of any transaction about which the witness was compelled to testify. Commonwealth v. Swinehart, supra, 434 Pa.Super. at 126, 642 A.2d at 506 (quoting Commonwealth v. Webster, supra, 323 Pa.Super. at 170, 470 A.2d at 535)). However, the Pennsylvania Supreme Court has determined that under Pennsylvania law, only use immunity is available to a witness. Commonwealth v. Swinehart, supra, 434 Pa.Super. at 126, 642 A.2d at 506 (citing Commonwealth v. Parker, 531 Pa. 90, 94, 611 A.2d 199, 201 (1992)).

      . In Commonwealth v. Fox, supra, appellant argued that defense counsel did not have a full and fair opportunity to cross-examine an adverse witness at the preliminary hearing. In fact, when defense counsel asked the witness questions at the preliminary hearing pertaining to the witness’ credibility, the Commonwealth’s objections were sustained. Defense counsel was precluded, therefore, from impeaching the witness’ testimony. A panel of this Court held that, in light of the clear purpose of a preliminary hearing, the appellant’s claim was without merit. The significant difference between Commonwealth v. Fox, supra and the case sub judice is that Mr. Fox’s adverse witness was available at trial and was cross-examined at that time by counsel for the defense.

      . The Commonwealth mentions that Mr. Cain’s prison garb and custodial status at the preliminary hearing were sufficient to put defense counsel on notice of the witness’ prior record or pending charges, such that counsel should have asked the reason for the witness' attire. The Commonwealth seeks to shift the burden of disclosure to the appellee as a burden of inquiry.
      We recognize that the Commonwealth does not have a duty to disclose what it is not obligated to disclose. Commonwealth v. Bazemore, supra. Additionally, the Commonwealth does not necessarily know whether a particular witness will become unavailable. Id. Nevertheless, "as between the competing interests of admitting the former testimony of an unavailable witness and the defendant’s constitutional right to confront a witness, we find the latter paramount.” Commonwealth v. Stinson, supra at 301, 628 A.2d at 1171.
      The Pennsylvania Supreme Court, in Commonwealth v. Baxter, 537 Pa. 41, 640 A.2d 1271 (1994) recently held that defense counsel was ineffective at trial for failing to explore the background of the Commonwealth’s main witness, where the Commonwealth had informed defense counsel of the witness’ prior criminal record but defense counsel did not take advantage of that information when questioning the witness at trial. Instantly, defense counsel cannot be held responsible for failing to explore the reasons for Mr. Cain’s garb at the preliminary hearing because the garb does not constitute the kind of notice or active disclosure sufficient to inform counsel of Mr. Cain’s complicated criminal history. Moreover, defense counsel did not have the same inducement to explore the witness’ background at the preliminary hearing as Mr. Baxter's counsel had at trial. Therefore, we conclude, the Commonwealth’s reliance on Mr. Cain’s garb as notice is a transparent maneuver which we will not abide.