author: CERCONE, Judge:

text:
    605 A.2d 1228
    COMMONWEALTH of Pennsylvania v. James Franklin RODGERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1991.
    Filed Feb. 26, 1992.
    Reargument Denied May 1, 1992.

      J. Randall Miller, Asst. Public Defender, Hollidaysburg, for appellant.
    Darlee E. Sill, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after a jury convicted appellant, James Franklin Rodgers, of first degree murder, robbery, and aggravated assault. For the reasons appearing below, we affirm.

The events underlying the instant appeal transpired at some time between the hours of 11:30 p.m. and 3:00 a.m. on the night of June 7-8, 1988 when the seventy-two year old victim in the case was assaulted and robbed in his Altoona, Pennsylvania home. A subsequent autopsy disclosed that the perpetrator inflicted at least seventy (70) stab wounds on the victim, Pasquale J. Lascoli. Although many of the wounds were superficial, one thrust of the knife penetrated the victim’s heart causing a fatal hemorrhage. Mr. Lascoli’s wallet was discovered in a near-by city park several days after the murder.

The subsequent police investigation of the homicide uncovered the facts that appellant not only knew Mr. Lascoli, but that he had proposed a plan to burglarize the victim’s residence only a few days before the murder occurred. Further, the fingers of appellant’s left hand were observed to be cut and bleeding in the early morning hours of June 3, 1988. Forensic DNA testing of blood stains on various items of apparel disclosed Mr. Lascoli’s blood on clothing worn by appellant on the night of the murder, while appellant’s blood was detected on the inside pocket of the trousers worn by the victim at the time of his death. This pocket was the location in which Mr. Lascoli had customarily carried his wallet.

Appellant was ultimately arrested and charged with criminal homicide, robbery, aggravated assault, reckless endangerment of another, theft by unlawful taking/disposition, and receiving stolen property. Appellant’s pre-trial motion for change of venire was granted, and a jury was impanelled in Lebanon County. The trial was held at the Blair County Courthouse in May of 1990, with the Honorable Ellis W. Van Horn, Jr. of Bedford County specially presiding.

The lower court heard oral argument on appellant’s timely filed motion for new trial and/or arrest of judgment, as well as on his supplemental post-verdict motion. All post-verdict motions were denied on March 8, 1991 and sentencing was scheduled for April 3,1991. On the latter date, the lower court sentenced appellant to serve a term of life imprisonment for the murder of Mr. Lascoli. The lower court also sentenced appellant to pay the costs of prosecution and to serve an aggregate concurrent term of incarceration of between five (5) and ten (10) years on the remaining counts. After sentencing, both of appellant’s trial counsel of record petitioned for leave to withdraw. Although the lower court granted the petition of Donald E. Speice, Esq., a member of the Public Defender’s Office of Blair County, the petition filed by J. Randall Miller, Esq. was denied. Mr. Miller has continued to represent appellant for purposes of this appeal.

Appellant’s timely filed appeal presents sixteen issues and sub-claims for our review. They are as follows:

1. Frankie Rodgers was denied his right to a speedy trial.
a. The delay in the commencement of Frankie Rodgers’ trial was inordinate.
b. The delay in the commencement of Frankie Rodgers’ trial was inexcusable.
c. Frankie Rodgers persistently asserted his right to a speedy trial.
d. Frankie Rodgers was injured by the violation of his right to a speedy trial.
2. The conduct of the prosecutor and certain rulings of the trial court unlawfully hindered defense counsel in his investigation and preparation of this case.
3. The court erred in allowing the prosecutor to present the results of the RFLP analyses performed by the Lifecodes Corporation to the jury.
4. The court unlawfully prevented Frankie Rodgers from presenting evidence to negate or reduce his culpability for the murder of Patrick Lascoli.
a. The court unlawfully prevented Frankie Rodgers from calling Constable Roy Spiers and Ella Jo Flemming to testify about certain out-of-court declarations, inconsistent with his sworn testimony at trial, that had been made by the witness Shawn Thomas.
b. The court unlawfully prevented Frankie Rodgers from calling Kimberly Hileman, Shawn Thomas and Linda Tabor to testify about certain out-of-court declarations, against their penal interests, that had been made by the prosecution witness Melissa O’Schea and the defense witness Michael Anthony.
c. The court erred in denying the defense the short recess of trial it needed to secure the presence and testimony of Dr. James R. Merikangas, M.D., F.A.C.P., and in other rulings that prevented it from presenting scientific evidence to the jury.
5. The court unlawfully thwarted defense attempts to discredit the testimony of prosecution witnesses and establish its own version of the facts through cross-examination and other means of impeachment.
a. The trial court unlawfully prevented Frankie Rodgers from discrediting the prosecution witness David Houtz through cross-examination and the presentation of other evidence tending to show that he had been blackmailed by the prosecution witness Thomas Bowling.
b. The court unlawfully prevented Frankie Rodgers from discrediting Melissa O’Schea, Maria Pierce, Thomas Bowling and other prosecution witnesses through cross-examination and other means of impeachment.
c. The court unlawfully thwarted defense attempts to discredit the testimony of several police officers and of the prosecution’s two molecular biologists through cross-examination and other means of impeachment.
6. The court erred in admitting, refusing to strike and re-admitting testimony of Detective Cooper that related certain uncounselled statements made by Frankie Rodgers while he was in police custody.
7. The court erred in permitting improper testimony on rebuttal and in admitting inflammatory photographs taken at the scene of the crime and the autopsy of the victim.
8. The court erred in denying, in whole or in part, the points for charge requested by the defense, particularly the first, fifth, ninth and twenty-third points.
9. The evidence admitted at trial is insufficient as a matter of law to prove that Frankie Rodgers is guilty of murder in the first degree and robbery.

Additionally, appellant has filed a reply brief which advances no new points in response to those raised by the Commonwealth, but merely supplements arguments already raised pertaining to the above sixteen claims. Appellant has also seen fit to provide this court with a supplementary document with the novel title “Errata to Briefs for Appellant.”

Before considering the claims of error raised by appellant, we will address the following complaint lodged by appellee: “the Commonwealth objects to the style, format and content of the brief filed on behalf of Appellant, as the Commonwealth believes that the format of the brief is not in compliance with the spirit of the Rules of Appellate Procedure____” Appellee’s brief at 4. We agree with the Commonwealth that the documents filed by appellant do not comport with either the spirit or the letter of the pertinent appellate rules.

Appellant’s brief fails to conform with Rule 2111(a) (brief of the appellant) in that the constituent elements of the brief required under subsections (1) through (8) have not been set out in the correct (and most logical) sequence. Additionally, appellant’s “statement of questions involved” violates Rule 2116(a) which provides that the questions raised in the brief are to be stated “in the briefest and most general terms, without names, dates, amounts or particulars of any kind.” These are at most minor, and somewhat technical, breaches of the procedural rules. However, appellate counsel has also transgressed the rules so as to actively hamper our ability to provide an expeditious review of appellant’s case.

It is patent that the “Statement of the Case” is to comprise a “closely condensed chronological statement, in narrative form, of all the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found.” Pa.R.A.P., Rule 2117(a)(4), 42 Pa.C.S.A. Further, the statement of the case “shall not contain any argument. It is the responsibility of appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties.” Id., Rule 2117(b). By way of contrast to these clear directives, appellant’s statement of the case is replete with irrelevant details, is devoid of substantiating references to the certified record, contains four unexplained charts, and is a blatantly partisan piece of writing.

However, the most egregious problem posed for this court by appellant’s briefs and accompanying documentation concerns the miniscule size of the type employed and the utter lack of appropriate margins. Documents filed with the appellate courts are deemed to be in substantial compliance with Rule 124, Form of Papers, only if the lettering is “clearly legible” and the lettering is “not smaller than typewriting pica with line spacing (except for quotations) not closer than typewriting double spacing.” Rule 124(a)(3). Unfortunately, counsel has not complied with Rule 124 but has instead utilized an oppressively minute type size for appellant’s briefs. The difficulties thereby created have been further exacerbated by the fact that counsel has provided no page margins. See Rule 124(a)(1) (margin requirements applicable to appellate briefs). The result is a set of densely packed documents which clearly exceed the “content quotient” reasonably contemplated under the page limits set forth in Rule 2135. We strongly condemn this practice.

Despite two exceptions discussed infra, we are nonetheless convinced that counsel has provided an adequate, if prolix, explanation of the substantive issues raised on appeal. In the interests of both justice and judicial economy we decline to punish appellant Rodgers for the defects in the brief prepared by counsel. Because we have concluded that meaningful review is possible in the instant case, we will not quash the appeal but shall consider the merits of the claims presented. See, e.g., Commonwealth v. Melvin, 378 Pa.Super. 59, 548 A.2d 275, allocatur denied, 522 Pa. 588, 561 A.2d 741 (1989). When the circumstances warrant it, we will not hesitate either to quash an appeal or to remand for preparation of a new brief.

We shall initially address appellant’s allegation that the trial court improperly permitted the prosecutor to present the results of DNA/RFLP analyses performed by Lifecodes Corporation of Valhalla, New York on bloodstains found on both the victim’s clothing and that worn by appellant at the time of the homicide. The acronym DNA/ RFLP signifies “deoxyribonucleic acid restriction fragment length polymorphism.” People v. Wesley, 140 Misc.2d 306, 307 n. 2, 533 N.Y.S.2d 643, 643 n. 2 (N.Y.Co.Ct.1988). Although DNA/RFLP testing is colloquially called “DNA fingerprinting,” we shall eschew that term in favor of the more scientifically correct denotation. The theory and methodology behind DNA/RFLP testing derives from the fields of molecular biology, genetics, and a specialized branch of genetics known as population genetics. Id. at 309, 533 N.Y.S.2d at 645. The scientific basis for DNA/ RFLP testing lies in the fact that each individual has an entirely unique “genetic signature” because the DNA configuration is different in every individual except for identical twins. Id. at 307, 533 N.Y.S.2d at 644. The challenged evidence is the product of a complex, six-step laboratory analysis: (1) extraction, (2) fragmentation, (3) gel electrophoresis, (4) Southern blotting, (5) hybridization, (6) and autoradiographing. State v. Schwartz, 447 N.W.2d 422, 425 (Minn.1989). The issue here is whether this testing procedure is admissible to show evidence that the victim’s blood stained the clothing appellant wore at the time of the murder and that appellant’s blood was found on the victim’s trousers.

Our law is well established that the trial court enjoys broad discretion in admitting or excluding evidence. Commonwealth v. Day, 399 Pa.Super. 399, 404, 582 A.2d 655, 657 (1990), allocatur denied, 528 Pa. 607, 596 A.2d 154 (1991). However, this discretion is tempered with regard to the admission of scientific evidence, that which “draws its convincing force from some principle of science, mathematics and the like.” Commonwealth v. Miller, 367 Pa.Super. 359, 363, 532 A.2d 1186, 1188 (1987), quoting State v. Brown, 297 Or. 404, 407, 687 P.2d 751, 754 (1984). Before scientifically adduced evidence may be considered admissible, it must first be shown that it meets the standard established in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (D.C.1923). Commonwealth v. Topa, 471 Pa. 223, 230, 369 A.2d 1277, 1281 (1977). Frye acknowledges that the point at which a scientific principle or discovery “crosses that line between the experimental and demonstrable stages is difficult to define.” Frye v. United States, 54 App.D.C. at 47, 293 F. at 1014. In essence, Frye assures that those most qualified to assess the general validity of a scientific method will have the determinative voice by requiring that the principle or discovery forming the basis for evidence presented at trial must have gained general acceptance in the particular field to which it belongs. Commonwealth v. Topa, 471 Pa. at 232, 369 A.2d at 1282, quoting United States v. Addison, 498 F.2d 741, 744 (D.C.Cir.1974). Accord Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981).

The crux of appellant’s two-part argument is that the forensic application of DNA/RFLP analysis is scientifically unreliable in general, and that the methodology employed in this case by Lifecodes Corporation was flawed. In order to determine the validity of appellant’s contention that DNA/ RFLP testing is scientifically unreliable, the trial court conducted four days of extended pre-trial hearings at which two experts testified on behalf of the Commonwealth: Martin Louis Tracey, Jr., Ph.D., and Kevin C. McElfresh, Ph.D. In what can only be termed a vigorous and hyper-zealous manner, defense counsel repeatedly cross-examined the witnesses regarding both the theoretical and procedural validity of the tests in question. See N.T. 4/2/90 at 11-15, 85-183; 4/3/90 at 2-168; 4/4/90 at 2-43, 74-110, 115; and 4/5/90 at 25-125. As a result of these hearings, the trial court reached the following conclusions:

(1) it is generally accepted in the academic community as a sound scientific principle that individuals have unique DNA patterns; (2) techniques and experiments which currently exist and are widely employed in the scientific community are generally regarded as capable of producing reliable results in DNA identification; and (3) Life-codes Corporation, Valhalla, N.Y., the laboratory at which the tests were conducted, utilized accepted scientific techniques in analyzing the forensic samples in this case.

Trial court opinion filed May 10, 1991 at 6. Mindful of the applicable standard, we have scrupulously examined the record before us. We conclude that the trial judge correctly ruled the expert testimony admissible to show evidence regarding bloodstains on both the victim’s and appellant’s clothing.

First, the extended interrogation of the Commonwealth’s witnesses plainly established that DNA/RFLP analysis has gained general acceptance in the national scientific community. Second, the certified record includes extensive documentation for this fact in the form of reproductions of numerous published scientific studies. See Commonwealth v. Middleton, 379 Pa.Super. 502, 512, 550 A.2d 561, 566 (1988) (where expert witness’ opinion is not merely based upon personal views, or those of a small segment of the scientific community, testimony is not deficient merely because numerous experts were not called to testify). Further, appellate courts throughout the country have found DNA testing, and the surrounding scientific techniques used to obtain DNA identification results, to be admissible. See, e.g., Florida: Andrews v. State, 533 So.2d 841 (Fla.Dist.Ct.App. 5th Dist.1988), review denied, 542 So.2d 1332 (Fla.1989); Martinez v. State, 549 So.2d 694 (Fla.Dist.Ct.App. 5th Dist.1989); Maryland: Cobey v. State, 80 Md.App. 31, 559 A.2d 391 (1989), cert. denied, 317 Md. 542, 565 A.2d 670 (1989); Minnesota: State v. Schwartz, 447 N.W.2d 422 (Minn.1989); Virginia: Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850 (1989), cert, denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990); Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990); West Virginia: State v. Woodall, 385 S.E.2d 253 (W.Va.1989). But see Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991) (declining to accept the scientific validity of forensic DNA testing on the basis of questionable test results compiled by Cellmark Diagnostics Corporation from a limited data base). In light of the extensive record developed in the lower court and certified to this court, we conclude that evidence adduced by DNA/RFLP analysis is scientifically valid and satisfies the Frye standard made applicable in Pennsylvania by Commonwealth v. Topa, supra.

The second aspect of appellant’s argument contends that the specific testing performed in the instant case by Lifecodes Corporation was invalid. In dealing with such challenges to the admissibility of scientifically adduced test results, courts have followed two different approaches: (1) applying the Frye standard as a three-prong test, or (2) treating the issue as a challenge to the weight of the particular evidence to be admitted. People v. Castro, 144 Misc.2d 956, 959-60, 545 N.Y.S.2d 985, 987 (N.Y.Sup.1989). Under the prior method, the first prong considers whether there is an underlying theory which is generally accepted in the scientific community and which supports a reliable conclusion; the second prong determines whether techniques or experiments currently exist capable of producing generally acceptable and reliable results; and the third prong addresses whether the testing laboratory in question correctly performed the scientific techniques and procedures when analyzing specific forensic samples. Id. The alternative approach applies the first two prongs of the Frye test as enunciated in Castro, but treats the third prong as a credibility determination for the factfinder.

In the instant case, the trial court elected to follow the latter rubric. After the exhaustive pre-trial hearing, Judge Van Horn first applied the Frye standard to the scientific theory and procedure underlying the proffered evidence as a two-pronged test. He then made a threshold evaluation as to the relevance, probity, and technical validity of the specific results derived from the forensic testing performed by Lifecodes Corporation. Only then was this evidence ruled admissible at trial. We endorse this approach for DNA multisystem identification tests because it provides the highest degree of protection for the defendant by restricting the jury’s access to non-probative evidence with the potential for a highly prejudicial impact. The procedure adopted by the lower court in the instant case promotes a scrupulous and explicit analysis of the probity of this complex evidence, both as a matter of law and as a question of fact. Accord Commonwealth v. Curnin, supra; State v. Woodall, supra; People v. Castro, supra.

Generally, evidentiary rulings are subject to the discretion of the trial court and will not be reversed absent a clear showing of abuse. Commonwealth v. Holloway, 524 Pa. 342, 354, 572 A.2d 687, 693 (1990). The fact that DNA/RFLP evidence is highly complex and possesses a potentially large impact on the jury does not change the applicable scope of review. It has always been, and continues to be, a function of the trial court to balance the prejudicial effect of evidence against its probative value. See, e.g., Commonwealth v. Dollman, 518 Pa. 86, 91, 541 A.2d 319, 321 (1990). It is not for an appellate court to usurp this function, and the trial court’s ruling as to admissibility will not be disturbed absent abuse of discretion. Id. Our careful review of the pre-trial hearing transcripts discloses no indication that Judge Van Horn committed any abuse of discretion in making the threshold determination that Lifecodes Corporation’s DNA/RFLP test results should be presented to the jury as proper evidence regarding the identity of the bloodstains on both the victim’s and appellant’s clothing.

Insofar as appellant’s contentions may be interpreted as a challenge to the weight accorded by the fact finder to Lifecodes’ results, we note that the Superior Court has a duty to review weight of the evidence claims for any indication that the trial court has committed an abuse of discretion. Commonwealth v. Murray, 408 Pa.Super. 435, -, 597 A.2d 111, 114 (1991) (en banc). However, the determinations of the fact finder will not be disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). A claim that the evidence presented at trial was unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Id.; Commonwealth v. Hunter, 381 Pa.Super. 606, 618, 554 A.2d 550, 555 (1989); Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987). Our review of the record substantiates the trial court’s ruling that appellant was provided ample opportunity at trial to challenge the credibility of Lifecodes’ data and test results via both the direct testimony of an expert witness called by the defense and through cross-examination of the Commonwealth’s witnesses.

We have scrutinized with great particularity the evidence provided by Ross Cameron Hardison, Ph.D., a biochemist expert in the field of molecular cell biology and DNA analysis, who testified for the defense. Dr. Hardison stated that he was “very impressed with the vast bulk of the data [produced at Lifecodes].” N.T. 5/15/90 at 35. This defense witness even went so far as to characterize a contested piece of evidence as “beautiful,” signifying that it was an excellent sample displaying obvious data bands derived from “a good bit of DNA.” Id. at 45. In addition to Dr. Hardison’s testimony, we have carefully reviewed all of the expert testimony presented at trial. See note 12, supra. See also Pa.R.A.P., Rule 2152(c), Pa.C.S.A. (the fact that the reproduced record does not include parts of the certified record shall not prevent the appellate courts from relying on such parts). As a result, we are convinced that the jury had an adequate basis upon which to make its credibility determination regarding the data produced by Lifecodes Corporation relating to the source of the bloodstains on both the appellant’s and the victim’s clothing. Since the trial court correctly ruled that the expert testimony was admissible, and because appellant was afforded an adequate opportunity to discredit the specific test results admitted, we discern no basis upon which to grant relief.

Appellant also contends that it was error for the trial court to admit, refuse to strike, and to re-admit the testimony of Police Detective Cooper regarding certain uncounselled statements made by appellant while he was in police custody. The record shows that the trial judge made his determination in this regard based upon the findings of fact and conclusions of law filed by the Honorable Thomas G. Peoples, Jr., P.J., following a suppression hearing on the admissibility of Detective Cooper’s testimony. This was a proper approach for the trial judge to take regarding the admissibility of relevant evidence because judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule each other’s decisions. See Okkerse v. Howe, 521 Pa. 509, 518, 556 A.2d 827, 831 (1989); Golden v. Dion & Rosenau, 410 Pa.Super. 506, 510, 600 A.2d 568, 570 (1991). Accord Commonwealth v. Lagana, 510 Pa. 477, 483, 509 A.2d 863, 866 (1986).

Regarding the initial ruling by the suppression court, our standard of review is limited to determining whether the factual findings of the lower court are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Chambers, 528 Pa. 403, —-, 598 A.2d 539, 540 (1991); Commonwealth v. Smith, 410 Pa.Super. 384, 388, 599 A.2d 1350, 1352 (1991).

In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Chiesa, 329 Pa.Super. 401, 404, 478 A.2d 850, 851 (1984). Accord Commonwealth v. Iannaccio, 304 Pa.Super. 307, 450 A.2d 694 (1982), aff'd, 505 Pa. 414, 480 A.2d 966 (1984), cert, denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985).

On October 4, 1988, the lower court conducted a suppression hearing relative to appellant’s motion to suppress an oral statement he allegedly made to Detective Mitchell F. Cooper of the Altoona Police Department on June 10, 1988. The suppression court found that at the time of the police investigation into Mr. Lascoli’s murder, appellant was subject to supervision by the Juvenile Probation Office of Blair County. On June 10, 1988, appellant was taken into police custody pursuant to a bench warrant issued because of an allegation by the Juvenile Probation Office that he was in violation of his probation. The suppression court also found that after appellant was apprehended, he was taken to the Altoona Police Headquarters where Detective Cooper noticed open cut wounds on two of the fingers of appellant’s left hand. Acting under the belief that information regarding the wounds would be needed by the staff at the Blair County Detention Home, Detective Cooper inquired as to the nature and source of the injuries. Appellant indicated that he had been “fooling around with a knife” with another friend.

The suppression court made five explicit factual findings which are crucial to resolving the issue before this court: (1) at the time of the conversation between appellant and Detective Cooper, appellant was not a suspect in the police investigation of Mr. Lascoli’s death; (2) appellant’s custodial status in no way related to the murder investigation; (3) the police investigation of the murder had not yet focussed upon appellant; (4) the conversation between Detective Cooper and appellant was not designed nor intended by the officer to elicit information regarding Mr. Lascoli’s murder; and (5) on June 10, 1988, appellant was not given the prophylactic warnings regarding his constitutional rights prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Suppression Court Memorandum, docketed January 4,1991 at 2-3. Our careful scrutiny of the suppression hearing and preliminary hearing transcripts supports these factual findings, and we discern no lower court error in this regard.

On the basis of the foregoing factual findings, the suppression court concluded, as a matter of law, that appellant was not entitled to notice of his Miranda rights and that the oral statement in question was not obtained in violation of any constitutional right. We agree with this ruling. Miranda warnings are necessary only when a suspect is undergoing actual custodial interrogation. Commonwealth v. Fento, 363 Pa.Super. 488, 492, 526 A.2d 784, 786 (1987), allocatur denied, 517 Pa. 621, 538 A.2d 875 (1988). Our supreme court has defined “interrogation” as police conduct “calculated to, expected to, or likely to, evoke admissions.” Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983). “[A]bsent any notion of interrogation, the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.” Id. In light of the suppression court’s properly supported factual finding that the conversation between Detective Cooper and appellant was not designed nor intended to elicit an admission, we discern no error of law in the lower court’s decision to refuse suppression of the challenged statement.

The first part of appellant’s seventh numbered contention is that the trial court erred in permitting the admission of improper rebuttal testimony. In its entirety, appellant’s argument consists of the following bald allegation: “That Ella Jo Flemming saw Timothy McCall with blood all over the front of his shirt at about midnight on the night of the murder is not made less probable by the fact that Cindy Brown and Shavet Johnson may have seen him with a little blood on his wrist, at another location several city blocks across town, more than two months later.” Appellant’s brief at 61. We cannot decipher the crux of the question presented by this cryptic statement. We must deem an issue abandoned where it has been identified on appeal but not properly developed in the appellant’s brief. Commonwealth v. Nelson, 389 Pa.Super. 417, 422-23, 567 A.2d 673, 676 (1989), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1990). We note, moreover, that the instant case is unlike the situation of Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984), where the panel was able, with difficulty, to review claims advanced by an inadequate argument. The trial record in this case consists of sixteen volumes of transcripts comprising well in excess of two thousand seven hundred pages of testimony. We are wholly unable to review appellant’s claim absent a proper argument containing references to specific locations in the record substantiating the averments. We decline to become substitute counsel for appellant in this matter and deem the issue waived.

The final claim which we will explicitly address concerns the lower court’s alleged error in denying the requested points for charge. In this regard, the entire argument presented consists of the following statement: “Authorities supporting the requested defense instructions were cited to the court in the text of its original points for charge; further authorities were cited in its brief to the lower court. The defense here simply stands by its assertion of error.” Appellant’s brief at 61. We find these averments wholly inadequate to facilitate substantive review of the issue because an appellate brief is simply not an appropriate vehicle for the incorporation by reference of matter appearing in previously filed legal documents. See Commonwealth v. Osteen, 381 Pa.Super. 120, 124, 552 A.2d 1124, 1126 (1989). The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with citation to pertinent authorities. Pa.R.A.P., Rule 2119(a), 42 Pa.C.S.A. As appellant’s contentions have not been appropriately developed, we deem the argument waived under Commonwealth v. Nelson, supra.

Regarding the remaining issues before this court, we have carefully weighed the arguments advanced by both appellant and by the Commonwealth. Our close scrutiny of the certified record has convinced us that there is no merit to any of these contentions. We agree with the rationale espoused by the Honorable Ellis Van Horn in the opinion he filed on May 10, 1991. We therefore affirm on that basis with regard to the remainder of appellant’s contentions.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2502(a).

      . Id. § 3701(a)(l)(i).

      . Id. § 2702(a).

      . This contravenes Rule 2113(a) which provides that the appellant may file a brief in reply to matters raised by appellee’s brief only if they have not previously been raised in appellant’s brief.

      . As the title implies, this filing comprises an elaborate errata sheet for appellant’s brief, reply brief, and his "supplementary brief’ (seemingly a substitute for the reproduced record as defined by Pa.R.A.P., Rule 2172, Pa.C.S.A). No authority exists for filing an errata brief. Further, the document fails to comport with the margin and print size requirements of Rule 124(a) and (a)(1). We decline to consider this nonconforming document and exercise our discretion to suppress it pursuant to Pa.R.A.P., Rule 2101, Pa.C.S.A. See Pa.R.A.P., Rule 124, Pa.C.S.A. (form of papers). Under Rule 2101, adherence to the procedural rules is mandatory. It is not an option to be followed or ignored on the whim of counsel.

      . The common definition of "pica” size lettering is print measuring 1/6 inch in height carrying ten (10) characters per inch. See, e.g., Webster’s New Twentieth Century Dictionary (Unabridged) 1355 (2d Ed.1967).

      . A page in a brief prepared in compliance with the print size and margin requirements of Rule 124, supra, should normally consist of up to twenty-seven lines of print bearing sixty-five characters per line for a total of one thousand seven hundred fifty-five characters per page. Although the print size in the documents filed by appellant varies considerably, the most commonly employed size is Vs inch in height and measures eighteen characters per inch. Appellant’s brief typically carries approximately one hundred twenty characters per line and varies between thirty-six and fifty-nine lines per page. A simple comparative calculation discloses that counsel for appellant has crammed between four thousand three hundred twenty and seven thousand eighty characters onto each page by use of this format. Our calculations reveal that counsel’s brief is between two and one-half and four times longer than the appellate rules permit in a properly formatted brief and constitutes the functional equivalent of a one hundred twenty-five to two hundred page document.

      . For useful technical discussions of the forensic validity of DNA testing, see also, Cobey v. State, supra (concise explanation of the six-phase DNA/RFLP testing); People v. Wesley, supra (scientific bases of DNA/RFLP testing); People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (N.Y.Sup.1989) (extensive discussion of scientific theory behind DNA identification tests); People v. Castro, 143 Misc.2d 276, 540 N.Y.S.2d 143 (N.Y.Sup.1989) (same). For a Pennsylvania case discussing the scientific validity of electrophoresis testing of genetic markers using dried bloodstains, see Commonwealth v. Middleton, 379 Pa.Super. 502, 550 A.2d 561 (1988).

      . In Schwartz, the Minnesota Supreme Court accepted the scientific validity of DNA typing, but declared the particular test results at issue in the case to be inadmissible because the laboratory had neither applied appropriate standards and controls nor made its testing data and results available.

      . As the lower court explained in the decision filed after the pre-trial hearing:
      [I]t is our opinion that the Commonwealth has demonstrated that Lifecodes utilized accepted scientific techniques in analyzing the forensic samples in this case. The autoradiographs produced memorialize the experiments Lifecodes conducted, and the [appellant] has been granted sufficient discovery to afford an opportunity for independent review. The issues raised by the defense [regarding] the interpretation of the autoradiographs (e.g., use of degraded samples, adjustment for band shifting, declaration of matches, and statistical conclusions) go to the weight of the challenged evidence____
      Trial court opinion filed April 20, 1990 at 3. Judge Van Horn’s careful analysis and explanation of the rationale he employed has eliminated any question that the admission of the DNA/RFLP evidence in the instant case resulted from a casual or truncated review by the lower court. Compare Commonwealth v. Cumin, supra (wherein the Massachusetts Supreme Court held that it was error to permit forensic DNA test results to go to the jury without a threshold determination regarding the probity of the evidence in light of alleged deficiencies in the analytic methodology employed by Cellmark Diagnostics Corporation).

      . See, e.g., State v. Joon Kyu Kim, 398 N.W.2d 544 (Minn.1987) (discussing the danger that a jury will improperly interpret the statistical analysis underlying DNA evidence as a measure of the probability of a defendant’s guilt or innocence). Contra State v. Schwartz, supra, (Kelley, J. concurring specially) (questioning the continued viability of the evidentiary restrictions imposed by Joon Kyu Kim); Martinez v. State, supra.

      . The extensive testimony on these questions occupied five days of the trial and comprises approximately six hundred pages of transcript. See N.T. 5/5/90 at 2-78 (testimony of Robert Vislosky, forensic chemist at the State Police Crime Laboratories, Greensburg, Pa.); N.T. 5/7/90 at 3-112 and 5/8/90 at 3-12 (testimony of Lisa Bennett, technician who performed sample testing for Lifecodes Corporation); N.T. 5/8/90 at 13-211 (testimony of Kevin C. McElfresh, Ph.D., Director of the Forensics Laboratory at Lifecodes Corporation); N.T. 5/9/90 at 2-103, and 114-177 (testimony of Martin L. Tracey, Jr., Ph.D., a molecular biologist expert in RFLP analysis and a member of the faculty of the University of Miami); and N.T. 5/15/90 at 2-52 (testimony of Ross Cameron Hardison, Ph.D., biochemist and member of the faculty at Penn State University).

      . See N.T. 10/4/88 at 23-26 (wherein defense counsel stipulated his acceptance of Detective Cooper's preliminary hearing testimony); N.T. 8/3/88 at 46-55 (Detective Cooper’s testimony).

      . We note that appellant has correctly argued that a determination of whether a juvenile has knowingly waived his Miranda rights and made a voluntary confession is to be based on a consideration of the totality of the circumstances. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). The relevant circumstances include a consideration of the juvenile’s age, experience, comprehension and the presence or absence of an interested adult. Commonwealth v. Morningwake, 407 Pa.Super. 129,-, 595 A.2d 158, 160 (1991), citing Williams, supra. Although the preliminary hearing transcript documents the fact that appellant was not accompanied by an interested adult at the time he conversed with Detective Cooper, appellate counsel has not fully expanded this argument by stating appellant’s age on the relevant date, and by discussing his experience and comprehension level at that time. We conclude, however, that appellant has not been prejudiced by these lacunae since the inquiry is simply not germane. Appellant was never subject to a custodial interrogation within the meaning of the relevant case law on June 10, 1988, and his Miranda rights therefore never attached. See Commonwealth v. Whitley, supra; Commonwealth v. Fento, supra.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    605 A.2d 1240
    COMMONWEALTH of Pennsylvania v. Anita Marie KEMBLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1991.
    Filed Feb. 27, 1992.
    Reargument Denied May 8, 1992.

      Jerry A. Philpott, Duncannon, for appellant. ,
    Gloria J. McPherson, Asst. Dist. Atty., Shermansdale, for Com., appellee.
    Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

Anita Kemble appeals from the judgment of sentence of the trial court following her jury trial conviction of driving under the influence of alcohol.

Appellant claims on appeal that (1) the trial court erred in admitting evidence regarding appellant’s alleged impaired ability to operate her automobile; (2) the trial court erred in instructing the jury regarding appellant’s alleged impaired driving ability; and, (3) the prosecutor included improper comments in his closing argument. We reverse the judgment of sentence of the trial court and remand for a new trial.

Appellant first claims that since she was only charged with 75 Pa.C.S. § 3731(a)(4) the trial court erred in permitting the Commonwealth to present evidence regarding, inter alia, appellant’s alleged erratic driving, “staggered ... gate [sic]”, “smell[] of alcohol, “fail[ure] of a sobriety test”, mood swings and uncooperative behavior. Appellant’s Brief at 4. Appellant avers that said evidence was irrelevant, and, in the alternative, immaterial and prejudicial.

As stated, supra, appellant was originally charged with both 75 Pa.C.S. § 3731(a)(1) and § 3731(a)(4). Section 3731 states, in pertinent part,

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

The charge relating to § 3731(a)(1) was dismissed at appellant’s preliminary hearing. Hence, at appellant’s trial the Commonwealth only sought and obtained a conviction regarding § 3731(a)(4). The trial court accurately informed the jury, prior to the commencement of testimony, that “[appellant’s] blood-alcohol count at the time of operation [of her vehicle is] the sole issue in this case.” N.T., 1/22/91, at 11-12.

At trial, before the introduction of any evidence regarding the intoxilyzer (breath) test performed upon appellant, the arresting officer testified that he observed appellant operating her automobile and that she made an extremely wide turn, nearly went down a one-way street and veered directly in front of his patrol car. He testified that he directed appellant to park her car. The officer also testified that appellant had difficulty determining which document was her registration card, staggered when she exited her automobile, possessed an odor of alcohol, leaned against a building and failed two sobriety tests. Id. at 14, 15, 16, 17, 18. Appellant was transported to the police station for the purpose of the administration of an intoxilyzer test. The arresting officer testified that subsequent to the test and conveyance of the results to appellant she vacillated between an “emotional” mood and a “combative” mood, and, was uncooperative. Id. at 29.

The aforementioned evidence could have clearly impacted upon the instant jury’s determination of whether appellant’s blood alcohol content was .10% or greater at the time she was operating her automobile since the validity of the intoxilyzer test was disputed at trial. Appellant testified that she was permitted to utilize a ladies room immediately prior to the intoxilyzer test, and, due to a dry mouth attributable to nervousness, drank water from the sink. Id. at 55. The officer who administered the test testified that if a person places any fluids into her mouth within twenty minutes prior to the test then “the test is in jeopardy.” Id. at 43. The officer also testified that appellant did not place any fluids into her mouth within twenty minutes prior to the test.

Our Court stated in Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 586 A.2d 416 (1991),

Questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. Though ‘relevance’ has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.

Id., 402 Pa.Superior Ct. at 124, 586 A.2d at 428.

The elements of the offenses defined in 75 Pa.C.S. § 3731(a)(1) and § 3731(a)(4) are not identical. Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986). “Subsection (a)(4) presumes that an operator with a blood alcohol content of 0.10% or greater is unfit to drive, whereas subsection (a)(1) requires proof that the defendant was, in fact, incapable of safe driving because of an excessive consumption of alcohol.” Id., 358 Pa.Superior Ct. at 535, 518 A.2d at 268. Section 3731(a)(4) simply creates a presumption that a person is unfit to drive if the Commonwealth demonstrates, via, inter alia, an intoxilyzer test, that her blood alcohol level was .10% or greater. If an (a)(4) charge was, as in the instant case, unaccompanied by an (a)(1) charge, then the only relevant evidence that would prove the fact that a defendant violated § 3731(a)(4) would relate to the existence of an intoxilyzer test, the results of the test, the reliability of the intoxilyzer machine, the qualifications of the person who administered the test, the procedures utilized in conducting the test and the methods employed in arriving at the test results. In contrast, in a § 3731(a)(1) prosecution the Commonwealth may introduce evidence regarding a defendant’s behavior prior to her arrest and/or during or subsequent to her arrest; the Commonwealth may introduce evidence regarding the number of alcoholic drinks consumed by a defendant, her illegal or erratic driving behavior, her apparent “state of mind” at the time in issue, the existence of an odor of alcohol emanating from a defendant, the fact that her eyes were bloodshot and the fact that she “sway[ed] and sagg[ed]” subsequent to her exit from her automobile. Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988). Additionally, in a § 3731(a)(1) prosecution, so long as the defendant’s blood alcohol level exceeds .05%, the Commonwealth may introduce evidence regarding that defendant’s blood alcohol level. Id.; 75 Pa.C.S. § 1547(d)(2), (3).

Therefore, any evidence that is relevant to prove impairment is admissible in a § 3731(a)(1) prosecution. However, a § 3731(a)(4) charge, when unaccompanied by a § 3731(a)(1) charge, involves a narrowly focused inquiry that is solely concerned with a determination of whether a defendant had a .10% or greater blood alcohol level at the time that she drove her automobile. During such an inquiry impairment evidence is not relevant since it does not logically or reasonably tend to prove or disprove that a defendant’s blood alcohol level was .10% or greater at the time that she drove her automobile, it does not tend to make such a fact more or less probable and it does not afford a basis for or support a reasonable inference or presumption regarding whether a defendant’s blood alcohol level was .10% or greater. Moran v. G. & W.H. Corson, Inc., supra. As mentioned, supra, the admission of the impairment evidence could have been particularly prejudicial to appellant since the validity of the results of her intoxilyzer test were disputed at trial. Since the impairment evidence was not relevant the trial court abused its discretion in admitting said evidence. Hence, we remand this case for a new trial.

Since we are granting appellant a new trial it is unnecessary for us to address her second and third issues.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . 75 Pa.C.S. § 3731(a)(4). We note that appellant was originally also charged with 75 Pa.C.S. § 3731(a)(1) but that charge was dismissed at appellant's preliminary hearing.

      . 75 Pa.C.S. § 1547 states, in pertinent part,
      (c) In any ... proceeding ... in which the defendant is charged with a violation of section 3731 ... the amount of alcohol ... in the defendant’s blood, as shown by chemical testing of the person’s breath, ... which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
      (d) Presumptions from amount of alcohol. — If chemical testing of a person’s breath ... shows:
      (3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731.

      . The officer who administered the intoxilyzer test testified that appellant’s blood alcohol content at the time she operated her automobile was greater than .10%.

      . All of the foregoing police testimony related to appellant’s alleged impaired ability to operate her automobile due to alleged consumption of an excessive amount of alcohol; said testimony is termed "impairment evidence."

      . 67 Pa.Code § 77.24(a) states, “The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person may not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked. [Emphasis added.]

      . It is not inconceivable that the jury, when faced with inconsistent testimony regarding the validity of the results of the intoxilyzer test performed upon appellant, could have factored the impairment evidence into its deliberation regarding whether appellant’s blood alcohol level was .10% or greater.

      . The legislature, when it enacted § 3731((a)(4), made the operation of a motor vehicle while having a blood alcohol content of .10% or greater a per se violation of the Vehicle Code. Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988). The introduction of the per se provision embodied in § 3731(a)(4) eased the prosecutor’s burden of proof in a driving under the influence case since if the Commonwealth "can show that the accused’s BAC [blood alcohol content] was 0.10% or more at the time of arrest, a drunk driving conviction inevitably will follow.” Edwin W. Tompkins III, The New Pennsylvania Drunk Driving Law: Last Call for the One-For-The-Road Era, 87 Dickinson L.Rev. 805, 815 (1983).

      . "A successful § 3731(a)(4) prosecution does not require proof of impairment during vehicle operation, but requires proof, generally by a blood alcohol test, that the defendant’s BAC [blood alcohol content] equalled or exceeded .10 percent at the time of vehicle operation." John D. LaRocca, Admissibility of Delayed Blood Test Results, 62 Temple L.Rev. 757, 760 (1989).

      . "To prove a § 3731(a)(1) violation, the prosecution must establish that the defendant’s ability to operate a motor vehicle was impaired during vehicle operation. The prosecution may introduce any evidence that is relevant to prove impairment due to alcohol, including the operator’s BAC [blood alcohol content] and observational evidence of the defendant's condition." Id. at 759.

      . Impairment evidence is also relevant in a prosecution that involves §§ 3731(a)(1) and (a)(4) charges. Commonwealth v. Gonzalez, supra,

      . In the instant case the impairment evidence included testimony regarding observation of appellant’s operation of her automobile, observation regarding appellant’s behavior prior to, during, and subsequent to her arrest, observation regarding an odor of alcohol emanat-


author: WIEAND, Judge:

text:
    605 A.2d 1243
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary Lynn KAUFFMAN, the Altoona Area School District Authority, Dennis E. Murray, the Tyrone Area School Authority, Dr. William N. Miller, the Diocese of Altoona-Johnstown, the Most Reverend Joseph V. Adamec, Charmaine Gulliot and Sister Mary Ursula, Principal of Sacred Heart School, Appellees.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1991.
    Filed March 30, 1992.

      Darlee E. Sill, Asst. Dist. Atty., Hollidaysburg, for Comm., appellant.
    Gerald J. Hutton, Pittsburgh, for Altoona Area School Dist. and Dennis E. Murray, appellees.
    John W. Heslop, Jr., Altoona, for Tyrone Area School Authority and Dr. William N. Miller, appellees.
    Louis C. Long, Pittsburgh, Walter F. Wall, Hollidaysburg, for Diocese of Altoona-Johnstown, Rev. Joseph V. Adamec, Charmaine Gulliot and Sister Mary Ursula, appellees.
    Robert P. Petyak, Ebensburg, Michele H. Lally, Pittsburgh, for participating parties.
    Stephen D. Wicks, Altoona, for Kauffman, appellee.
    Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   WIEAND, Judge:

Where the District Attorney has prosecuted a person successfully for a criminal act, may information in the prosecution’s file thereafter be discovered by one or more parties to a civil action brought to recover damages for the same conduct? The trial court held that the prosecutor’s file was not immune from discovery, and the Commonwealth, by special allowance, appealed.

After Gary Lynn Kauffman had been found guilty of committing the crimes of indecent assault and corrupting a minor, the victim’s parents initiated a civil action against Kauffman, the Altoona Area School District Authority, Dennis E. Murray, the Tyrone Area School Authority, Dr. William N. Miller, the Diocese of Altoona-Johnstown, the Most Reverend Joseph V. Adamec, Charmaine Gulliot and Sister Mary Ursula, Principal of Sacred Heart School. In the civil action, the trial court entered an order directing the District Attorney of Blair County to provide, at an in camera meeting, its files pertaining to the investigation and prosecution of Kauffman so that the court could supervise discovery in the civil action. The Superior Court, on petition, specially allowed the Commonwealth to appeal from this order.

The Commonwealth argues that discovery of information in the District Attorney’s file is barred by the Right to Know Law of June 21, 1957, P.L. 390, §§ 1-4, as amended, 65 P.S. §§ 66.1-66.4. After careful review, however, we can find no connection between the Right to Know Law and the issue raised in this appeal. Rather, the trial court’s order must be reviewed to determine whether discovery is permitted by the Rules of Civil Procedure pertaining to discovery in civil actions. See: Pa.R.C.P. 4001 et seq.

Section 2 of the Right to Know Law provides that the “public records” of an agency, as defined in section 1, shall be open for inspection and examination by any citizen of Pennsylvania. Section 1, however, excludes from the definition of public record “any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties____” The exclusive remedy provided by the statute for a citizen who has been denied access to agency records is a statutory appeal as provided in section 4. Instantly, the Commonwealth relies upon the exclusionary language of section 1 of the statute to argue that the Right to Know Law bars litigants in civil actions from discovering information which is not open for public inspection under the statute. However, the Commonwealth has been unable to point to any language in the statute and offers no other reasonable explanation which would make the Right to Know Law applicable to discovery proceedings under the Pennsylvania Rules of Civil Procedure. The reason is obvious. There is no connection between the two.

The defendants in this civil action were not seeking to exercise their rights as citizens to examine public records of the District Attorney. Rather, they had been named as defendants in a civil action and, as such, sought to invoke the discovery provisions of the Pennsylvania Rules of Civil Procedure to aid them in defending the action instituted against them. Because the Commonwealth has failed to make this distinction, it has erroneously relied on a decision of the Commonwealth Court which has no application to the order entered by the trial court in this case.

In Shultz v. Board of Supervisors of Jackson Township, 95 Pa.Cmwlth. 550, 505 A.2d 1127 (1986), citizens and taxpayers sought to examine township records pertaining to expenditures of township funds pursuant to the provisions of the Right to Know Law. They also sought to discover the same information under the Rules of Civil Procedure. Under these circumstances, the Commonwealth Court properly held that the discovery rules could not be used to thwart the provisions of the Right to Know Law. Therefore, the discovery rules could not be used in a statutory appeal to circumvent the provisions of the Right to Know Law, whose provisions alone determine questions of public access to agency records.

The instant action is not a proceeding under the Right to Know Law. Rather, it is a civil action for damages, and the issue to be decided is the scope of discovery allowed to the parties in that action by the Rules of Civil Procedure. The request for discovery here is supported by an underlying civil action. There was no such underlying action in Shultz. This distinction was recognized by the Commonwealth Court in Pittsburgh Board of Public Education v. MJN by NJN, 105 Pa.Cmwlth. 397, 524 A.2d 1385 (1987), where the Court held that a trial court could order discovery in a de novo appeal from a School Board decision suspending a high school student. In rejecting an argument by the School Board that the trial court was without authority to order discovery, the Court said:

Discovery itself is designed to promote free sharing of information so as to narrow the issues and limit unfair surprise. It is a tool which serves each litigant and promotes judicial economy. The Board cites Shultz v. Board of Supervisors of Jackson Township, 95 Pa. Commonwealth Ct. 550, 505 A.2d 1127 (1986), to support its position. We believe Shultz is easily distinguishable from this case. Shultz involved the Right to Know Act (Act). In Shultz, the appellants petitioned the common pleas court under Section 4 of the Act alleging a right to inspect the public records of the township relating to expenditures made by the Board of Supervisors. The appellants, in that action, served a set of interrogatories on the Board of Supervisors which objected on the grounds that discovery was not available under the Act. Although we affirmed the trial court we did so after holding that the court erred when it ruled that discovery was available to parties proceeding under that Act. This ruling was based on Section 4 of the Act which provides for an appeal from the denial of access to information as the exclusive remedy for one denied the right to examine the records. In sum, we determined that the discovery rules were not available in that case because information which would have been obtained through discovery was the exact information which was the subject of the action brought under the Act and obtaining that information must be done under the Act alone.

Pittsburgh Board of Public Education v. MJN by NJN, supra, 105 Pa.Cmwlth. at 403-404, 524 A.2d at 1388 (footnotes omitted).

The fact that the legislature excluded certain documents from public inspection does not mean that the legislature intended to bar the use of such information in judicial proceedings. The purpose of the Right to Know Law was to make certain information available to members of the public. Whether information should be made available for use in court proceedings involves entirely different considerations. This was recognized in a well reasoned opinion by The Honorable R. Stanton Wettick in Azen v. Lampenfield, 18 Pa.D. & C.3d 574 (Allegheny Co.1981). In denying an argument similar to that relied upon by the Commonwealth in this case, Judge Wettick wrote:

[T]he fact that the legislature does not require the city to make information available to the general public does not indicate that the legislature intended to bar the use of such information in court proceedings. Traditionally, public officials have been required to make relevant public information available to the litigants in court proceedings. On the other hand, traditionally it has been left to public officials to determine what public information shall be available to the members of the general public. Thus legislation designed to curb the unbridled discretion of the public official to exclude public information from the general public should not be construed to bar the disclosure of public information in judicial proceedings. The only purpose of the right to know legislation is to make more information available to the public. The question of whether information should be protected in court proceedings involves entirely different policy considerations that the legislature did not consider in enacting this right to know legislation. For this reason, we reject the city’s position that the right to know legislation is the basis of any privilege.

Id. at 575-576. We agree fully with Judge Wettick’s analysis and hold that the Right to Know Law does not bar a party in a civil action from discovering relevant information from the files of a government agency. To hold otherwise, would insulate from discovery all information possessed by governmental agencies, no matter how relevant the information might be, unless the same information were also available upon request to any and all citizens of the Commonwealth. Such a result clearly was not contemplated by the legislature when it enacted the Right to Know Law. Indeed, such a result would not only emasculate the discovery provisions of the rules of civil procedure, but would also represent an unsound departure from established law.

Pa.R.C.P. 4003.1 permits discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action____” The Commonwealth has not alleged the existence of any privilege other than that supposedly contained in the Right to Know Law, and our own research discloses no absolute privilege constituting a total bar to the discovery of relevant information contained in the file of a public prosecutor.

The federal courts, on occasion, have identified a common law “executive” or “governmental” privilege which they have relied upon to protect information from being discovered during ongoing government investigations. Thus, in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa. 1973), the federal court for the eastern district of Pennsylvania defined the “executive privilege” as “the government’s privilege to prevent disclosure of certain information whose disclosure would be contrary to the public interest.” Id. at 342 (footnote omitted). See generally: 81 Am.Jur.2d, Witnesses, §§ 287-290; 23 Am.Jur.2d, Depositions and Discovery, § 78; 8 J. Wigmore, Evidence, §§ 2378-2379 (McNaughton rev. 1961). This privilege, however, is not absolute but qualified; and, when asserted, requires the court to balance the government’s interest in ensuring the secrecy of the documents whose discovery is sought against the need of the private litigant to obtain discovery of relevant materials in possession of the government. Frankenhauser v. Rizzo, supra at 343-344. See: Reese v. City of Pittsburgh, 1 Pa.D. & C.3d 704 (Allegheny Co.1976) (rejecting claim of governmental privilege where plaintiff, who was allegedly assaulted by police officer, sought access to police personnel records and internal affairs investigative reports). See also: Crawford v. Dominic, 469 F.Supp. 260 (E.D.Pa.1979). This balancing of interests frequently requires a hearing, and “[a] court may conduct an in camera inspection of the documents in order to determine which should be released in the interests of justice despite a claim of government privilege.” 23 Am.Jur.2d, Depositions and Discovery, § 78 at p. 420. Moreover, with respect to the “governmental” or “executive” privilege, it has been observed that “the great majority of cases that have considered the discoverability of law enforcement investigations have held that in general such discovery should be barred in ongoing investigations, but should be permitted when investigation and prosecution have been completed____” Frankenhauser v. Rizzo, supra at 343, citing Wood v. Breier, 54 F.R.D. 7 (E.D.Wis.1972).

At common law, there also existed a public interest privilege which prevented the disclosure of information regarding the commission of a crime which had been communicated to the prosecuting attorney by a citizen. See: Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158 (1884). This privilege, which has become known as the “informer’s privilege,” was at one time considered to be absolute. See: Vogel v. Gruaz, supra. See also: Lewis v. Roux Trucking Corp., 222 App.Div. 204, 226 N.Y.S. 70 (1927); Worthington v. Scribner, 109 Mass. 487 (1872); Meaney v. Loew’s Hotels, Inc., 44 Pa.D. & C.2d 764 (Pike Co.1968). More recent decisions, however, have construed the “informer’s privilege” to be a qualified privilege. See: Westinghouse Electric Corp. v. City of Burlington, Vermont, 351 F.2d 762, 767-768 (D.C.Cir.1965); Grodjesk v. Faghani, 104 N.J. 89, 97, 514 A.2d 1328, 1332 (1986); Conlon v. Dean, 14 Mich.App. 415, 418-24, 165 N.W.2d 623, 625-627 (1969); Caputo v. WYTV Television Station, 35 Pa.D. & C.3d 253, 255-256 (Mercer Co.1983). In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court of the United States described the informer’s privilege in the following manner:

What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151 [1938]; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct 959, 39 L.Ed. 1080 [1895]; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.

Id. at 59-61, 77 S.Ct. at 627-628, 1 L.Ed.2d at 644-645 (footnotes omitted). See also: Holman v. Cayce, 873 F.2d 944, 946-947 (6th Cir.1989) (applying informer’s privilege in civil case); Dole v. Local 1942, International Brotherhood of Electrical Workers, AFL-CIO, 870 F.2d 368, 372-373 (7th Cir.1989); Westinghouse Electric Corp. v. City of Burlington, Vermont, supra at 767-770. See generally: 8 J. Wigmore, Evidence, §§ 2374-2375 (McNaughton rev. 1961); Annotation, Government’s Privilege To Withhold Disclosure Of Identity Of Informer — Federal Cases, 1 L.Ed.2d 1998 (1957); Annotation, Application, In Federal Civil Action, Of Governmental Privilege Of Non-disclosure Of Identity Of Informer, 8 A.L.R.Fed. 6 (1971).

In the instant case, the Commonwealth did not assert either a common law governmental/executive privilege or an informer’s privilege. Therefore, they were not considered by the trial court. They also have not been advanced on appeal. The failure to assert a privilege constitutes a waiver thereof. “A claim of privilege may be waived in discovery proceedings as well as during the trial of an action. Preclusion of disclosure in discovery proceedings on the ground that a matter is privileged is not automatic; the privilege must be claimed, and a failure to claim the privilege waives it.” 10 Goodrich-Amram 2d, Depositions and Discovery, § 4011(c):3 at p. 307. See: Daniels v. Hadley Memorial Hospital, 68 F.R.D. 583, 586-587 (D.D.C.1975) (defendant’s failure to assert attorney-client privilege constitutes waiver of privilege); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1160 (D.S.C.1974) (if attorney-client privilege is not claimed at time of discovery request, or at least when document is presented to court for in camera review, privilege will be considered waived by implication); Commonwealth v. Clark, 347 Pa.Super. 128, 131, 500 A.2d 440, 441 (1985), appeal dismissed, 516 Pa. 16, 531 A.2d 1108 (1987) (defendant could waive privilege against disclosure of confidential communication to spouse by failing to object to wife’s testimony at trial).

The Commonwealth has not alleged that any harm would result from the present disclosure of relevant information in the District Attorney’s files. Moreover, if specifically privileged information should be discovered in the District Attorney’s files, the trial court’s order is such that the court will be able to protect the confidentiality of such information by enforcing the privilege.

Because there is no applicable privilege in the Right to Know Law, and because the Commonwealth has demonstrated no other valid basis for reversing the order of the trial court, we reject its appeal.

Order affirmed.

      . 65 P.S. § 66.2.

      . 65 P.S. § 66.1(2).

      . 65 P.S. § 66.4.


author: ROWLEY, President Judge:

text:
    605 A.2d 1248
    COMMONWEALTH of Pennsylvania v. Thomas ECK, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1990.
    Filed March 30, 1992.

      Anthony M. Mariani, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND and HUDOCK, JJ.
   ROWLEY, President Judge:

This is a timely appeal by Thomas Eck from a judgment of sentence imposed following his conviction of involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. Having carefully reviewed the record and considered the arguments presented, we vacate the judgment of sentence and remand this case for a hearing, and either reinstatement of the judgment of sentence or a new trial.

The pertinent procedural history of this case is as follows: Appellant was charged with committing an act of oral intercourse upon his fifteen-year-old foster brother, T.H. (“the victim”), on November 9, 1986. Appellant was 23 years old at the time. Appellant’s trial counsel, Patrick J. O’Malia, filed a pretrial motion for discovery pursuant to Pa.R.Crim.P. 305 requesting, inter alia, the victim’s records that were in the possession of six child service or foster care agencies. These agencies are: the Office of Children, Youth and Families; Childline and Abuse Registry; Western Region Office of Children, Youth and Families; Pressley Ridge Youth Development Extension (PRYDE); Washington County Children and Youth Services; and Pressley Ridge School. Appellant requested the victim’s juvenile record, his school records including psychological evaluations, and information relating to the victim’s prior sexual conduct.

The trial court ordered the six agencies to produce their records for an in camera inspection by the court. PRYDE conceded that it had records of (1) psychiatric evaluations of T.H., (2) T.H.’s progress reports, and (3) clinical consultations concerning T.H., but it objected to the order requiring their production. Appellant’s trial counsel then withdrew his request for PRYDE’s records, except those containing verbatim statements by the victim. Consequently, PRYDE submitted only those portions of its records containing verbatim statements by the victim concerning the November 9, 1986 incident. The trial court reviewed, in camera, the records submitted by the other five (5) agencies and discussed the contents of those records with appellant’s trial counsel. The trial court then gave appellant’s trial counsel documents containing the victim’s verbatim statements relating to the incident of November 9, 1986. However, appellant’s trial counsel was not permitted to view the remainder of the records that had been inspected by the trial court. The trial court did not place on the record any findings or conclusions concerning his in camera examination of the records.

Appellant also filed a motion in limine seeking to introduce, at trial, evidence of the victim’s prior sexual conduct. Specifically, appellant sought to introduce evidence that the victim had a juvenile record for performing oral intercourse on his five-year-old foster brother in a prior foster home. This evidence, appellant contended, would substantiate his defense that T.H. had fabricated the incident with appellant and establish a motive for T.H.’s fabrication. The motion in limine was denied. The case proceeded to trial and appellant was found guilty of involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. On October 29, 1987, after filing post-trial motions on behalf of appellant, Patrick J. O’Malia withdrew as appellant’s counsel, and Anthony M. Mariani entered his appearanee as appellant’s new counsel. After supplemental post-trial motions were filed and denied, the trial judge sentenced appellant to a term of imprisonment of eleven and one-half to twenty-three months imprisonment and a consecutive five-year term of probation for his conviction of involuntary deviate sexual intercourse. No further sentence was imposed for his conviction of corruption of a minor and indecent assault. After appellant’s motion to reconsider and/or modify sentence was denied, appellant filed the instant appeal from the judgment of sentence.

Appellant raises the following issues for our consideration: 1) whether the trial court erred by refusing to allow appellant or his counsel access to agency records; 2) whether the trial court erred in excluding evidence of the victim’s prior sexual conduct; 3) whether trial counsel was ineffective for modifying his discovery request; 4) whether trial counsel was ineffective for failing to introduce evidence of a confidentiality agreement between appellant’s parents and PRYDE; and 5) whether there was insufficient evidence of forcible compulsion.

I. ACCESS TO AGENCIES’ RECORDS

A. PRESERVATION

Appellant first argues that the trial court erred in not allowing appellant and/or appellant’s trial counsel to inspect the records of the five agencies. The Commonwealth claims that appellant has failed to preserve this issue for appellate review. The Commonwealth first contends that appellant failed to preserve this issue because, prior to this appeal, he did not argue that denying his trial counsel access to the agencies’ records violated his rights of confrontation and compulsory process under the Pennsylvania Constitution. Instead, appellant requested permission to inspect and copy or photograph the records pursuant to Pa.R.Crim.P. 305. See Defendant’s Request for Informal Pretrial Discovery and Inspection Pursuant to Pa.R.Crim.P. Rule 305, 3/20/87. We conclude that, by requesting to inspect and photocopy these records in his Rule 305 discovery motion and by arguing, in his post-trial motions, that the trial court erred in denying him access to these records, appellant properly preserved this issue. See Commonwealth v. Miller, 399 Pa.Super. 180, 582 A.2d 4 (1990) (appellant, who filed a motion to compel discovery pursuant to Pa.R.Crim.P. 305 and who was denied access to psychological report prepared by Rape Crisis Center, entitled to a new trial under Lloyd, infra.)

[We do] not see as viable an approach that would change the standard of review or right of defense counsel to review these documents based upon the manner that the request was made____ [T]he absolute reviewability status would remain even though requested under a Rule 305 motion.

Id., 399 Pa.Superior Ct. at 188, 582 A.2d at 8-9 (Brosky, J., concurring).

The Commonwealth also argues that appellant did not properly preserve this issue because he did not object 1) when the trial court provided him with only the victim’s verbatim statements or 2) at trial during the cross-examination of the Commonwealth’s witnesses. The Commonwealth has cited no cases to support its contention that a defendant, whose discovery request is denied, must make further objections either when documents are not given to him or during cross-examination. Indeed, such further objections are not required, as they would place an undue burden upon defendants making discovery requests pursuant to Rule 305. Accordingly, we conclude that appellant has properly preserved this issue for appeal.

B. MERITS

We turn now to the substance of appellant’s first argument. He contends that the trial court erred by disallowing him access to the records of the six agencies. Alternatively, appellant contends that the trial court erred in failing to conduct a hearing on the discovery motion.

The courts of this state, as well as the United States Supreme Court, have discussed the issue presented in this case, namely, whether a defendant accused of sexual offenses is entitled to access to the alleged victim’s records held by an agency, hospital, or rape crisis center. A review of the relevant cases reveals that a defendant’s right to access is dependent upon the scope of any privilege which may protect the confidentiality of the victim’s records. After reviewing the record before us, we are unable to determine whether the trial court applied the proper standards, discussed below. We therefore remand to the trial court for an in camera hearing during which the principles set forth in the following cases should be applied to determine appellant’s right to access to the information he has requested.

First, a defendant’s right to access is dependent upon whether the information is protected by a statutory privilege and whether that privilege is absolute. Information which is protected by an absolute statutory privilege is not subject to disclosure and denial of access to a criminal defendant is required. This non-disclosure rule applies to “information acquired [by a psychiatrist or licensed psychologist] in the course of his professional services in behalf of [a] client____” 42 Pa.C.S. § 5944; Commonwealth v. Ken nedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992) (en banc); Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), allocatur denied, 518 Pa. 617, 541 A.2d 744 (1988). Similarly, “[n]o sexual assault counselor may, without the written consent of the victim, disclose the victim’s confidential oral or written communications to the counselor nor consent to be examined in any court or criminal proceeding.” 42 Pa.C.S. § 5945.1; Commonwealth v. Wilson/Aultman, 529 Pa. 268, 602 A.2d 1290 (1992). The protections set forth in these statutory provisions apply to testimony as well as to records created in the course of the confidential relationship. See Wilson/Aultman, supra; Kennedy, supra; Kyle, supra.

On the other hand, a privilege which is statutorily enacted, but which is subject to exceptions, is not absolute and access to a criminal defendant may be required. Such a privilege was considered by the United States Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). In Ritchie, the defendant was charged with rape, involuntary deviate sexual intercourse, incest, and corruption of a minor after his daughter informed the police that the defendant had been sexually assaulting her for four years. During pre-trial discovery, the defendant sought disclosure of files of Children and Youth Services, a protective agency which investigated the suspected abuse of the defendant’s daughter. The trial court refused to order disclosure of the files.

Subsequently, the United States Supreme Court considered Ritchie’s case. Although acknowledging that the information the defendant had requested was statutorily protected, the Supreme Court also noted that this protection was not absolute as the statute provided for various exceptions to the confidentiality of the information. Because disclosure was contemplated under certain circumstances, including when disclosure is required by a court order, the Supreme Court concluded that Ritchie was entitled to have the trial court review the files and determine if they contained information which was material to his defense. Accordingly, the Court remanded to the trial court, with directions to conduct an in camera review of the files and to determine whether they contained information which probably would have changed the outcome of Ritchie’s trial. If so, a new trial was required.

In Kennedy, supra, an en banc panel of this Court again considered the privilege discussed in Ritchie. However, relying on a statutory provision not discussed by the Supreme Court in Ritchie, this Court in Kennedy reached a different result.

In Kennedy, the defendant was convicted of involuntary deviate sexual intercourse, corruption of minors, and indecent assault. He sought to discover records of the victim’s counseling sessions with a licensed psychotherapist as well as the victim’s file in the possession of Child Protective Services, a division of the Philadelphia Department of Human Services. The trial court conducted an in camera review of the records but did not allow the defendant’s trial counsel access to the records.

On appeal, the defendant argued that his confrontation and compulsory process rights under the Pennsylvania Constitution were denied when his trial counsel was denied access to the records. An en banc panel of this Court concluded that the defendant was entitled to all information included in the agency’s investigating file, except information identifying the reporter of the abuse. The Court in Kennedy based this conclusion on the clear language of the statute, rather than on constitutional grounds. Specifically, the Court held that a defendant who is accused of abuse which results in an agency investigation is a “subject of a report [who] may receive, upon written request, a copy of all information except that prohibited from being disclosed by Subsection (c), contained in the Statewide central register or in any report filed pursuant to Section 6.” 23 Pa.C.A. § 6340(b).

Finally, privileges which are not statutorily enacted, but rather are recognized by the common law, must yield to the constitutional rights of a criminal defendant. Such a privilege was considered by the Supreme Court of Pennsylvania in Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989). In Lloyd the defendant was charged with raping a six-year-old victim. The defendant sought to discover and inspect records' of the victim’s post-rape psychotherapist treatment at a psychiatric institute to show that the victim was delusional and/or hallucinatory and had fabricated the incident. The trial court conducted an in camera inspection of the records. However, neither the defendant nor defense counsel was allowed to view the records. The Supreme Court in Lloyd held that

under the confrontation clause of the Pennsylvania Constitution, ... 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 psychotherapist records. In addition we hold that the right to inspect these records is also mandated by the compulsory process clause of the Pennsylvania Constitution.

Id., 523 Pa. at 432, 567 A.2d at 1359. The Court reasoned that, when viewing the records by itself, the trial court “ ‘would not be reading the statements with the eyes of a trial advocate engaged in defending a client. Matters ... may appear innocuous to some, but [may] have great significance to counsel____’” Id., 523 Pa. at 430, 567 A.2d at 1358, citing Commonwealth v. Grayson, 466 Pa. 427, 429, 353 A.2d 428, 429 (1976). The Court concluded that defense counsel was entitled to view the records in camera.

In discussing Lloyd, the Supreme Court in Wilson/Aultman distinguished Lloyd from both that case and Ritchie. Specifically, the Court stated that Lloyd

did not involve a statutory privilege. Rather, the Court in Lloyd was concerned with a common law privilege which could not defeat a defendant’s constitutional rights. Implicit in the distinction drawn by the Lloyd court is the recognition that the existence of a statutory privilege is an indication that the legislature acknowledges the significance of a particular interest and has chosen to protect that interest.

Wilson/Aultman, supra 529 Pa. at 281-282, 602 A.2d at 1297-98.

As the above discussion reveals, appellant’s right to access of the information he has requested depends upon the nature of the information and the scope of the applicable privilege. Because we cannot determine with specificity the nature of the information requested by appellant in the present case, we remand to the trial court with directions to conduct an in camera review of the information to which appellant desires access. If, in light of the principles set forth above, appellant’s discovery requests were properly denied, he is not entitled to a new trial on this basis. If, however, appellant was improperly denied access to material and admissible information, and the error was not harmless, see Ritchie, supra, 480 U.S. at 58, 107 S.Ct. at 1001-02, a new trial is required.

II. PRIOR SEXUAL CONDUCT

Appellant next argues that the trial court erred in refusing to admit evidence of the victim’s sexual conduct in a prior foster home on the ground that it was barred by the Rape Shield Statute, 18 Pa.C.S. § 3104. Appellant contends that the evidence should have been admitted as showing T.H.’s motive for testifying falsely. In his motion in limine, appellant alleged that the evidence of T.H.’s past sexual conduct was

directly relevant to demonstrating the alleged victim’s bias, attacking his credibility, showing his prejudice, demonstrating his motive, negating the act [with] which Defendant is charged, showing hostility, proving consent and/or for such other reasons as permitted by the Rules of Evidence and relevant case law.

Defendant’s Motion to Introduce Evidence of Alleged Victim’s Past Sexual Conduct, 9/11/87, at 1. In his offer of proof prior to the trial, appellant explained that the evidence was relevant to appellant’s defense that T.H. had fabricated the incident.

[T]he victim ... has a juvenile record for offenses in which he was the actor or perpetrator in a similar case to the charges at bar____ [The victim] was performing oral sex on this younger boy____ [Ejvidence of the juvenile record, probation and the prior act should not be excluded under any Rape Shield Law as it would demonstrate several motives and degrees of bias or prejudice of a victim____ [W]hile [the victim] is on probation with Juvenile and being in fear of being caught for violation of probation of underage drinking, he fabricated this story____ [W]e intend to introduce testimony that the victim was under a disciplinary level at the foster home____ [H]is fear of being under this disciplinary action may suggest to the jury and may raise as a question of fact his motive in fabricating the charges here____

Notes of Testimony (N.T.), 9/14/87, at 3-5.

In Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) (en banc), the Court held that Pennsylvania’s Rape Shield Law did not bar evidence of a consensual incestuous relationship between the victim and her brother used to substantiate the defense theory that the victim had fabricated the claim of rape against her father, the defendant, after the defendant had thrown the brother out of the house. The court noted that not all evidence demonstrating bias was admissible, however.

While we hold that Pennsylvania’s Rape Shield Law may not be used to exclude relevant evidence showing a witness’ bias or attacking credibility, we do not hold that all material evidence is necessarily admissible. Although logically relevant, evidence tending to show the victim’s prejudice or lack of credibility may be excluded if ‘it would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice.’

Id., 337 Pa.Superior Ct. at 557, 487 A.2d at 401 (citations omitted). See also Commonwealth v. Johnson, 389 Pa.Super. 184, 195 n. 2, 566 A.2d 1197, 1202 n. 2 (1989) {en banc) (“This balancing determination between probative value and unfair prejudice should be made by the trial court at an in camera hearing____”), allocatur granted, 525 Pa. 643, 581 A.2d 569 (1990). Likewise, in Commonwealth v. Erie, 361 Pa.Super. 44, 521 A.2d 464 (1987), allocatur denied, 517 Pa. 621, 538 A.2d 875 (1988), the Court found trial counsel ineffective for failing to argue in post-trial motions that the trial court had erred in excluding evidence of the victim's juvenile records which would have supported the defense claim that the victim had fabricated the rape in order to avoid punishment for her curfew violation.

[T]he jurors were entitled to have the benefit of the defense theory before them in order that they could make an informed judgment as to the weight to place on the complainant’s testimony as opposed to the appellant’s testimony.

Id., 361 Pa.Superior Ct. at 53, 521 A.2d at 468-69. See also Commonwealth v. Simmon, 521 Pa. 218, 555 A.2d 860 (1989) (prosecution witness’ juvenile probationary status relevant to show bias).

In the instant case, as in Black and Erie, the jury had to weigh the credibility of both T.H. and the appellant and decide whose testimony was more believable. By excluding evidence of T.H.’s juvenile record and his prior sexual conduct, the trial court prevented appellant “from showing the existence of a possible ulterior motive on the part of the complainant ..., [and] defense counsel was unable to cross-examine the complainant effectively____” Erie, supra, 361 Pa.Super. at 52-53, 521 A.2d at 468. Appellant theorizes that, as the perpetrator of a sexual offense, T.H. learned that victims receive more favorable treatment than do perpetrators. Appellant contends that, fearing disciplinary action for violating PRYDE rules, T.H. fabricated the charges against appellant. The jury may have found appellant's theory to be credible or incredible. Nevertheless, the jury had a right to hear the evidence of the victim’s juvenile record and/or past sexual conduct, if relevant, and if it substantiated appellant’s theory of fabrication, so long as the probative value of the evidence was not outweighed by its unfair prejudicial effect. We therefore conclude that the trial court erred in excluding this evidence outright, and should, on remand, hold an in camera hearing to perform the requisite balancing. By our decision, however, we express no opinion as to the admissibility or relevance of any of the proffered evidence or testimony. We leave that decision to the trial court after the appropriate hearing.

III. INEFFECTIVENESS OF COUNSEL

In his next two issues, appellant alleges that his trial counsel was ineffective. In Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990), the Supreme Court set forth the following standard for reviewing an ineffectiveness of counsel claim:

[W]e must first determine whether the issue underlying the claim is of arguable merit. If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial.

Id., 525 Pa. at 344, 580 A.2d at 748 (citations omitted).

First, appellant contends that trial counsel was ineffective for withdrawing his request for PRYDE’s records, which would have supported appellant’s defense theory, discussed above. On the record before us, we cannot determine if the PRYDE records do in fact support appellant’s theory. However, because we are remanding for an evidentiary hearing, the trial court can review PRYDE’s records to determine if material and admissible information is contained in those records. We note that the principles discussed in Part IB of this opinion should be applied to these records as well.

Appellant also contends that trial counsel was ineffective for failing to introduce into evidence a confidentiality agreement between appellant’s parents and PRYDE. He asserts that this agreement would have explained why appellant did not question his mother or the PRYDE supervisor about the specifics of the victim’s allegations and why he did not respond with shock to the allegations. A review of the record convinces us that counsel was not ineffective.

First, on cross-examination, appellant was questioned as to why he did not ask his mother or the PRYDE supervisor about the specifics of the victim’s allegations. See N.T., 9/14/87, at 221-23. If, as he now contends, the reason he did not do so was because of the confidentiality agreement, he had ample opportunity to explain this.

Furthermore, at a post-trial hearing, appellant’s trial counsel testified that rather than utilizing the confidentiality agreement to explain appellant’s lack of response, he elicited testimony from appellant’s mother, and argued in closing, that when a problem arose with a foster child, the family’s practice was that appellant’s parents would handle the matter themselves rather than involving their natural children. See Transcript of Supplemental Hearing on Post-trial Motions, 2/1/89, at 14-18, 22. Counsel also explained that because appellant’s mother told him, albeit in a limited manner, about the victim’s allegations, if he had then elicited testimony concerning the confidentiality agreement, the jury might infer that appellant’s mother had already breached the agreement and did so because she thought there might be some truth to the victim’s allegations. See id. at 17-18. This course of action was not unreasonable. For these reasons, we conclude that counsel was not ineffective for failing to elicit testimony concerning the confidentiality agreement.

IV. SUFFICIENCY OF EVIDENCE

Finally, appellant contends that the evidence of forcible compulsion was insufficient to sustain the guilty verdict for involuntary deviate sexual intercourse. Having thoroughly reviewed the record, we conclude that this issue has been adequately discussed and correctly decided by the trial court, who concluded that the evidence was sufficient to support appellant’s conviction. See Trial Court Opinion, 3/23/90, at 6-8.

For the foregoing reasons, the judgment of sentence is vacated, and the case is remanded for in camera proceedings. If after those proceedings the trial court determines that appellant was entitled to disclosure of materials which were not provided to him, and that non-disclosure was not harmless error, or if the trial court determines that evidence concerning the victim’s prior sexual conduct is admissible, a new trial is warranted. Otherwise, the trial court is free to reinstate the conviction.

Judgment of sentence vacated and case remanded for a hearing, and either a new trial or reinstatement of the judgment of sentence. Jurisdiction is relinquished.

      . Appellant notes that when T.H. perpetrated the sexual assault on his previous five-year-old foster brother, he was punished by being removed from that foster home, while the five-year-old victim received favorable treatment. Appellant theorizes that T.H. fabricated the incident with appellant in order to avoid punishment for drinking and smoking in violation of PRYDE’s rules.

      . Appellant was represented at his post-trial motions hearing and in this appeal by Anthony M. Mariani and Patrick M. Livingston.

      . We do not separately address appellant’s final issue, namely, whether the cumulative effect of trial court errors and trial counsel ineffectiveness deprived him of a fair trial.

      . Appellant’s trial counsel withdrew his request for PRYDE’s records except those containing verbatim statements by the victim. Therefore, appellant cannot argue that the trial court erred in not allowing appellant or his counsel to inspect these records. Instead, appellant must raise the argument concerning PRYDE’s records in the context of the ineffectiveness of his trial counsel. See Section III, infra.

      . We note that the trial judge did conduct an in camera review of the agencies' records before appellant’s trial. After that review, the trial judge provided appellant with material concerning the incident underlying the charges at issue, but denied appellant access to information not concerning this incident. However, it appears that the trial court based its decision to deny access on the plurality opinion in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). As discussed in this memorandum, the principles set forth in Ritchie may not be dispositive.

      . We cannot determine from the record which of the six agencies involved in the present case are governed by the Child Protective Services Law, and whose records are therefore governed by the provisions of this law.

      . All seven Judges agreed that the Rape Shield Law could not be used to exclude the evidence of past sexual conduct in Black. However, only the plurality (Judges Cavanaugh, Spaeth, and Hoffman) remanded the case for a hearing so that the trial court could balance probative value versus prejudicial effect. Judge Popovich concurred only in the result. Judge Wieand (joined by President Judge Cirillo and Judge Montemuro) filed a concurring and dissenting opinion stating that the trial court’s determination to exclude evidence because it was prejudicial constituted an abuse of discretion and' that the proper procedure would be to remand the case for a new trial. The balancing test set forth by the plurality in Black was adopted by a majority of the court in Commonwealth v. Johnson, 389 Pa.Super. 184, 566 A.2d 1197 (1989) (en banc), allocatur granted, 525 Pa. 643, 581 A.2d 569 (1990).