author: KELLY, Judge:

text:
    582 A.2d 328
    COMMONWEALTH of Pennsylvania v. Michael McDONALD, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1990.
    Filed Sept. 11, 1990.
    Reargument Denied Nov. 19, 1990.

      Marlene Cooperman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before KELLY, HUDOCK and HESTER, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether the trial court provided an adequate statement of its reasons for certifying the juvenile appellant to be tried as an adult. Applying the reasoning espoused by our Supreme Court in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1989), we find the certification statement adequate, and the grounds for certification sufficient. Consequently, we affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On July 4, 1988, John Sanders, age 20, was squirting the fifteen year old appellant and a friend, Paul James Oliver, with a squirt gun in the stairwell of a public housing building where he and appellant lived. Both Paul Oliver and appellant insisted that he stop squirting them. When Paul saw appellant draw a real gun from his waist band, however, Paul pleaded with appellant not to play around with the gun because it might be loaded and go off. Apparently enraged at being squirted with water, appellant aimed the gun at John Sanders, and stated coldly, “watch this.” He then shot John Sanders in the neck from a distance of six feet, which sent John Sanders tumbling down the stairwell with a bullet in his neck.

John Sanders was taken to the hospital for emergency treatment. His bleeding was controlled, but the bullet was lodged too close to the spinal cord to be surgically removed. After five days in the hospital, John Sanders was sent home with a bullet still in his neck. The bullet had not been removed by the time of the trial in this case; rather, it had actually migrated even closer to John Sander’s spinal cord.

A delinquency petition was initially filed against appellant charging him with aggravated assault and related offenses. A preliminary hearing was held on the petition, and a prima facie case was found to have been established. Subsequently, an amenability hearing was held on August 5, 1988. Appellant was certified to be tried as an adult.

On May 2, 1989, following a jury trial, appellant was convicted of aggravated assault and a firearms offense. Post-verdict motions were filed, briefed, argued, and denied. Appellant was sentenced to the mandatory minimum term of five to ten years imprisonment. This timely appeal follows.

The sole issue raised on appeal is whether the trial court erred or abused its discretion in certifying appellant for trial as an adult. In support of this contention appellant interweaves two basic arguments: procedurally, the trial court’s statement of reasons for certification was inadequate; and substantively, the trial court abused its discretion in deciding that certification was appropriate. We find the arguments to be without merit.

I. Adequacy of the Statement of Reasons for Certification

Appellant contends that the juvenile court failed to provide a sufficient statement of its reasons for certifying appellant to be tried as an adult. Appellant relies upon various cases which have held that a specific statement of grounds for certification must be provided. See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1968); Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985); Commonwealth v. Broome, 317 Pa.Super. 1, 463 A.2d 1053 (1983); Commonwealth v. Deppeller, 314 Pa.Super. 368, 460 A.2d 1184 (1983); Commonwealth v. Lux, 299 Pa.Super. 136, 445 A.2d 185 (1982); Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980). We find no merit in the contention.

At the amenability hearing the juvenile court was provided with an abundance of information through the juvenile file and the arguments of prosecution and defense. The prosecution informed the court that appellant was 15 years old and had two separate outstanding charges pending at the time of the instant offense: one for possession with intent to deliver eighty-two packets of cocaine (while also in possession of %720.00 cash); and a second for theft arising from an attempt with two others to steal a car (which was foiled by an officer who apprehended appellant and his co-conspirators in flagrante delicto). The prosecutor also noted that had the bullet fired by appellant at John Sanders been five inches higher, this case would have been for murder rather than aggravated assault, and certification would have been automatic.

Detailed mental health reports were prepared and were included in the juvenile file reviewed by the trial court. Dr. Zanni’s psychiatric report indicated the absence of any psychotic disorder which would require mental commitment. Dr. Moberg’s psychological profile indicated that appellant’s IQ was “low average,” and that “a secure, well-structured placement” would be appropriate.

School records were also included in the juvenile file. The records revealed that appellant was a chronic truant who (not surprisingly in light of his chronic truancy) did poorly in school.

After the factual information was submitted and reviewed, the juvenile court entertained argument from both prosecution and defense. The prosecution argued for certification. It focused on the extreme seriousness and callousness of this offense, the presence of two outstanding arrests, and appellant’s chronic truancy. The defender argued against certification focusing on the absence of prior juvenile placements, the lack of school disciplinary problems, and appellant’s youth.

Upon considering the foregoing information and arguments, the juvenile court decided to grant the petition for certification. The juvenile court explained at that time:

THE COURT: The difference between this case and a case of murder where the defendant would automatically be transferred to adult court is that the complainant was probably standing a quarter inch further north then he would have been if he had been, if he had not been walking away from the defendant. Were it not for that fact obviously he would be dead. He was shot in the neck.
The question of his treatment, rehabilitation and supervision does not seem to rise in those areas. For some reason or other, where a person intends murder, the question of rehabilitation, supervision and so forth does not become as critical because of what we are supervising against.
In this case, it appears that the defendant who is a child, intended to murder a person who sprayed him with a water pistol. That would suggest that if any treatment or rehabilitation is to be accomplished there would not be much to build on. Apparently, the young man has not had treatment, rehabilitation or supervision in the past, certainly not in the juvenile system. But, I’m not sure that all persons, that the Commonwealth can treat all persons who come before it.
In this case, because of the extremely exaggerated response to the provoking act, the Court believes that the Commonwealth of Pennsylvania would have to start at a point that it can never reach.
Any treatment, rehabilitation or whatever that was to have been done should have been done a long time ago. I don’t think there’s enough to build on and for that reason I’m allowing the Commonwealth to take this case to adult court.

(N.T. 8/5/88 at 11-13). (Emphasis added). The juvenile court expressly considered the potential for rehabilitation in the juvenile system, as well as the seriousness and callousness of the offense.

The trial court opinion, in response to appellant’s post-verdict motions, expanded upon the juvenile court’s statement as follows:

Lastly, defendant asserts that the certification of defendant was contrary to the law: that the certifying judge failed to consider the factors essential to certification, particularly that Judge Reynolds failed to consider that the child/defendant was amenable to rehabilitation within the jurisdiction of the juvenile court system and that the certifying judge abused his discretion in certifying defendant.
We rejected the argument. In an independent review of the record, we found that Judge Reynolds considered all the essential factors and that his judgment was well within his discretion. There were two hearings: 1) the preliminary hearing to determine whether there was a prima facie case and 2) an amenability hearing.
The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., provides that a youth of fourteen (14) years of age or older may be tried as an adult, the burden being on the Commonwealth to prove that the child-offender be tried as an adult. Commonwealth v. Rush, 522 Pa. 379, 562 A.2d 285 (1989). The certifying court must determine if the evidence demonstrates:
(i) that there is a prima facie case that the child committed the delinquent act alleged;
(ii) that the delinquent act would be considered a felony if committed by an adult; and
(iii) that there are reasonable grounds to believe all of the following:
(A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency. In determining this the court shall consider the following factors:
Age.
Mental capacity.
The degree of criminal sophistication exhibited by the child.
Previous records, if any.
The nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the Juvenile Court to rehabilitate the child.
Whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction.
Probation or institutional reports, if any.
The nature and circumstances of the acts for which the transfer is sought.
Any other relevant factors.
(B) That the child is not committable to an institution for the mentally retarded or mentally ill.
(C) That the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult.
42 Pa.C.S.A. § 6355(a)(4).
It is not questioned; a prima facie case was made out that the child/defendant committed aggravated assault, a felony of the first degree. In determining whether the child/defendant was amenable to treatment, supervision and rehabilitation in available facilities, the Commonwealth presented evidence running the gamut of the factors to be considered. The juvenile file [J-file] which indicated the age, arrest records, mental health reports and history of the defendant, N.T. 8/5/88, p. 3, showed defendant to be fifteen (15) years of age with two open cases, one for possession with intent to deliver a controlled substance and the other for theft of an automobile, the details of which were described. Detailed mental health reports consisting of Dr. Zanni’s psychiatric evaluation and Mr. Moberg’s psychological profile were submitted. Dr. Zanni had concluded that defendant suffered no serious psychotic disorder which required commitment treatment. Mr. Moberg indicated defendant’s IQ was low average and suggested a “... secure, well-structured placement ...” for defendant. A school representative described defendant as a chronic truant who, despite all efforts, earned poor grades.
In his adjudication, Judge Reynolds notes that even though defendant was only fifteen (15) and had not been previously subjected to the rehabilitative modalities available within the juvenile system, it was too late to try any of the available programs. He questioned the defendant’s “extremely exaggerated response” to being squirted with a water pistol.
Defendant’s argument is that the judge’s scant adjudicating remarks were insufficient and that they showed he did not consider the factors enunciated by the statute. The fact that the court does not enunciate the factors in his finding is of no moment. The certifying judge is not required to make a formalized, conventional adjudication of findings of fact, discussion and conclusion. See Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980). A reviewing court may presume that the certification judge considered the evidence presented. See Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). (It is presumed that a judge considered a presentence report presented to him.) Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989). A certification decision which is supported by evidence on the factors to be considered is not challengeable merely because a more articulate rendition might have been made. Cf Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985); Commonwealth v. Deppeller, 314 Pa.Super. 368, 460 A.2d 1184 (1983); Commonwealth v. Bey, 249 Pa.Super. 185, 375 A.2d 1304 (1977) (where the certification order contained no reasons).
The allegations that defendant was young enough to change, was amenable to rehabilitation, and that the other charges against him had yet to be determined is no argument that the judge abused his discretion. The mere recital of facts that might support a different result is no evidence of abuse. See Commonwealth v. Moss, 518 Pa. 337, 543 A.2d 514 (1988). Abuse of discretion is misapplication of the law, capricious finding, ill will, bias or prejudice. Commonwealth v. Rush, supra; Commonwealth v. Wade, 485 Pa. 453, 402 A.2d 1360 (1979).

Trial Court Opinion at 5-9.

We agree with the trial court, and particularly with its reliance upon our Supreme Court’s decisions in Commonwealth v. Devers and Commonwealth v. Wade. Our reasons are as follows.

Appellant’s argument that the statement of reasons for certification provided an inadequate explanation of the juvenile courts analysis of the statutory factors set forth at 42 Pa.C.S.A. § 6355(a)(4), echoes virtually identical arguments expressly rejected in Commonwealth v. Devers, supra, regarding the adequacy of the statement of a trial court’s reasons for imposition of an adult criminal sentence. In Devers, our Supreme Court explained:

We emphatically reject, therefore, interpretations of our law in this area which call for separate, written opinions embodying exegetical thought. Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.

546 A.2d at 18. (Emphasis added). We find this mandate equally compelling in the context of a review of the adequacy of a juvenile court’s statement of reasons for certification when the juvenile court has been presented with a detailed juvenile file and has had the benefit of argument regarding the factors relevant to the certification decision from both prosecution and defense.

We need not rest our affirmance entirely upon the compelling analogy drawn to Devers. Rather, our Supreme Court’s prior decision in Commonwealth v. Wade demonstrates that our Supreme Court had already applied Devers-type reasoning in an earlier juvenile certification case.

In Wade, our Supreme Court explained:

Appellant argues, however, that the trial court which denied his transfer motion failed to comply with that portion of the mandate of Kent v. United States, [383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966)] supra, which requires the court to give a statement of reasons justifying its decision. We believe, however, that appellant has misperceived that portion of Kent. As the court states:
“Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of 'full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.” Kent v. United States, supra, 383 U.S. at 561, 86 S.Ct. at 1057.

While the trial court did not set forth any written reasons for refusing the petition for transfer at the time that decision was made, the following was contained in the trial court’s opinion denying appellant’s post-verdict motions:

“... In the present case the record is complete. There is testimony, school records and psychiatric evaluations. The appellate court will have available to it all of the information that was available to the trial court and upon which it based its determination. The Court finds that the purpose for which the written statement is required has been accomplished and the defendant has not been denied his due process rights.”

Further:

"... At the hearing on defendant’s Application to Transfer, defense counsel presented psychiatric evaluations of the defendant, the defendant’s high school records, his grade school records which included psychological and behavioral data and the testimony of the defendant’s father who as the Administrator the Occupational, Vocational and Technical Education Section of Allegheny High School has dealt with juveniles who had been sentenced to various juvenile institutions around the state. Furthermore, since the Suppression Hearing preceded the hearing on the transfer application, the Court was fully informed as to the facts of the case. The Court was cognizant of and the record reflected that the defendant was 15V¿ years of age, he had not been designated as either mentally ill or retarded, the defendant could be imprisoned for more than three years as a result of his crime and the victim was a teenage friend and neighbor of the defendant. From these and other facts available to it, the Court determined that the interest and safety of the community required that the defendant be restrained and treated as an adult.”
In light of the preceding quotes, we do not believe appellant was denied any due process rights by the court’s failure to give written reasons for denying the transfer application at the time the decision was made.

402 A.2d at 1366. (Emphasis added). Wade presents compelling and materially indistinguishable precedent in support of the adequacy of the juvenile court’s statement of reasons for certification in this case, given the presence of a complete juvenile file and argument by prosecution and defense on the certification issue.

We construe Devers and Wade to espouse a consistent mandate that a juvenile court be deemed to have properly considered and to have properly weighed the relevant information supplied for its consideration, and that an appellate court may not require detailed or intricate explanations of the rationale for certification when a detailed juvenile file and arguments of counsel have been presented for consideration. Consequently, we find the statement of reasons for certification in this case at least adequate.

II. Sufficiency of the Reasons for Certification

In a related argument, appellant contends that the trial court improperly focused solely on the seriousness of the crime involved in deciding to certify appellant to be tried as an adult. In support of this argument appellant quotes the juvenile court’s statement of reasons for certification, (N.T. 8/5/88 at 11-13, set forth above), and cites Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978). Again, we find no merit in the contention.

In Commonwealth v. Greiner, supra, our Supreme Court addressed two critical and inter-related issues: who had the burden of proof and production in juvenile certification hearings, and was the evidence sufficient to support certification of the juvenile to be tried as an adult in that case. Our Supreme Court ruled in Greiner’s favor on both issues.

In finding that the evidence was insufficient to support certification, our Supreme Court noted that appellant had been a co-conspirator in a botched attempted rape turned aggravated assault, at age 15 with an older brother and an adult. The aggravated assault victim was the father of the intended rape victim, whose bedroom the trio of co-conspirators had broken into in error. Our Supreme Court noted that the victim had fully recovered from his stab wounds (which were not further described), and was silent as to who had actually stabbed the victim. Appellant had no prior record. He was an above average student. He enjoyed a stable home life and had no prior disciplinary problems at home or at school. 388 A.2d at 699, 702. Finally, our Supreme Court emphasized that the county probation officer who interviewed Greiner had repeatedly recommended that Greiner be treated as a juvenile, rather than as an adult. 388 A.2d at 702. It was in this peculiar context that our Supreme Court had held that the seriousness of the offense, alone, could not provide the basis for certification.

Subsequently, in Commonwealth v. Moss, supra, our Supreme Court rejected a similar claim that juvenile court had improperly focused solely on the seriousness of the offense. In Moss, our Supreme Court noted that the trial court had considered not only the type of crime involved, but also the juvenile’s prior criminal conduct and the inference of “criminal sophistication” which arose from a review of the facts surrounding the current offenses. 543 A.2d at 516-17.

Moss demonstrates that Greiner was not intended to eliminate, or even diminish, the significance of the type of offense or circumstances of the offense in deciding whether certification is appropriate. Greiner, in essence, was merely an abuse of discretion case, where one strong fact in favor of certification was deemed insufficient to outweigh numerous counterveiling facts strongly weighing against certification. In Moss, no such counterveiling factors were present, and so, no “gross abuse of discretion” was found. 543 A.2d at 516-17.

Again, an analogy may be drawn to Devers. In Devers our Supreme Court explained:

Today, of course, ordering of pre-sentence reports is the practice everywhere. We are indebted to Martin-Rig-gins for teaching the judiciary that a convicted defendant cannot be sentenced on the basis of the crime alone and that a full pre-sentence report informs the sentencing procedure.

546 A.2d at 18. It may be observed that the ordering of a juvenile file (the equivalent of a pre-sentence report) is likewise the practice in juvenile certification cases, and that we are likewise indebted to Greiner for teaching that certification may not be based upon the crime alone, but that the entire juvenile file is to “inform” the juvenile certification determination process. However, to say that a juvenile file or pre-senténce report is to “inform” a trial court’s exercise of its sound discretion, is not to imply that either should blind the court to the significant import of the circumstances of the current offense or offenses.

Here, the seriousness of the offense and the callousness of appellant as demonstrated by the manner in which the offense was committed, were unquestionably proper considerations for the juvenile court which strongly favored certification. We note that, the offense in this case is distinguishable from that in Greiner in several respects. The seriousness of the threat of the victim’s life in this case was clear in this case, but not in Greiner where our Supreme Court merely noted that the victim had fully recovered from undescribed stab wounds. Here, appellant acted individually and with extreme callousness, rather than as the junior member of a conspiracy led by an adult and an older brother. Indeed, the juvenile in Greiner may or may not have been involved in the actual stabbing of the intended victim’s father, making Greiner all the more distinguishable. While not by themselves dispositive, we find no error in the juvenile court’s consideration of the callousness of appellant’s excessive retaliation for being squirted with water, or in its consideration of how few inches this case had been from automatic certification (i.e. had the shot killed John Sanders). These were plainly strong factors favoring certification of appellant to be tried as an adult.

What dispositively distinguishes this case from Greiner, however, is the presence of additional factors in favor of certification of appellant to be tried as an adult, and the absence of compelling factors against certification. Factors favoring certification included: appellant’s outstanding pri- or arrests for dealing a large quantity of cocaine and for trying with two others to steal a car; his chronic truancy; his poor school performance; and his identified need for a “secure, well-structured placement.”

The factors weighing against certification hardly rose to the compelling level of those cited in Greiner. Appellant had never been committed to a juvenile facility, and so there was no prior failure to rehabilitate. Neither had there been a prior commitment in Moss. Moreover, this factor would seem to involve more the absence of an aggravating factor (i.e. a failed rehabilitative attempt) than the presence of a mitigating one (e.g. a demonstration of an actual potential for rehabilitation).

Similarly, appellant’s alleged lack of school disciplinary problems during a period of chronic truancy is hardly a compelling mitigating circumstance. Indeed, chronic truancy may be considered a serious school disciplinary problem, by itself.

Finally, there is appellant’s age, fifteen and a half. While an appropriate mitigating consideration, perhaps, it is far from being a compelling mitigating factor considering the strong counterveilling factors supporting certification.

In the end, certification depends on a complex balancing of numerous factors, not the least of which is the general demeanor of the juvenile as observed by the juvenile court during the certification hearing, a factor which this Court is ill-equipped to evaluate on appeal. When a juvenile judge is provided with a comprehensive juvenile file and has the benefit of argument from prosecution and defense, both common sense and our Supreme Court’s precedent require that we assume the trial court duly considered the evidence and arguments presented. In such cases, our focus on review must be limited to whether the record as a whole reveals an abuse of discretion, rather than upon the technical punctiliousness of the trial court’s efforts to weave an adequate web of philosophical speculation and exegetical thought in support of its decision. See Commonwealth v. Devers; Commonwealth v. Moss; Commonwealth v. Wade. We find no abuse of discretion here.

Conclusion

Finding no error in the decision to certify appellant to be tried as an adult, we Affirm Judgment of Sentence.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    582 A.2d 336
    COMMONWEALTH of Pennsylvania, Appellant, v. Leonard JOHNSON.
    Superior Court of Pennsylvania.
    Argued June 21, 1990.
    Filed Sept. 17, 1990.
    Reargument Denied Oct. 30, 1990.

      Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Luther E. Weaver III, Philadelphia, for appellee.
    Before ROWLEY, McEWEN and JOHNSON, JJ.
   ROWLEY, Judge:

On the basis of testimony given by appellee Leonard Johnson in a personal injury action, the Commonwealth of Pennsylvania, appellant herein, charged appellee with two counts of perjury, 18 Pa.C.S. § 4902, two counts of false swearing in official matters, 18 Pa.C.S. § 4903(a), and one count of tampering with or fabricating physical evidence, 18 Pa.C.S. § 4910. In response to a motion in limine filed by appellee, the trial court barred the Commonwealth from introducing into evidence expert testimony that, based on the results of ink analysis, two pages of handwritten notes referred to by appellee during the trial could not have been written in 1979, as appellee testified they were. In this appeal, the Commonwealth contends that the trial court abused its discretion in granting the motion in limine. For the reasons set forth below, we reverse the order of the trial court and remand for further proceedings.

This case had its origin in the 1985 civil trial of Bolton v. Southeastern Pennsylvania Transportation Authority, No. 4895 July Term 1981, an action brought by Yvonne Bolton to recover damages for injuries allegedly suffered as the result of a 1979 accident involving a trolley operated by the Southeastern Pennsylvania Transportation Authority (SEPTA). During discovery, SEPTA issued a subpoena for all of the medical records maintained on Ms. Bolton by appellee, her treating physician.

At trial appellee referred to several pages of notes that he had allegedly written after Ms. Bolton’s visits to his office in 1979. The notes indicated that in her early visits Ms. Bolton had complained of lower back pain. According to the Commonwealth, these notes had not been included in the records supplied by appellee in response to SEPTA’s subpoena, and the office report included in the records supplied to SEPTA made no reference to complaints of lower back pain during Ms. Bolton’s early visits to appellee.

Later in the trial, SEPTA called as a witness Albert Lyter, a forensic consultant whose specialty was document analysis. Mr. Lyter testified that two of the pages of handwritten notes could not have been written before January 1984. This could be determined, he explained, because Formulabs, the manufacturer of the ink with which the notes were written, had added a different chemical “tag” to its ink every year since 1979, and the ink on the pages in question contained the tag that had been added to ink manufactured in 1984.

As the result of Albert Lyter’s testimony, the Commonwealth charged appellee with perjury, false swearing in official matters, and tampering with or fabricating physical evidence. At the preliminary hearing, the Commonwealth offered the testimony of Mr. Lyter and of counsel for SEPTA in the Bolton case. After considering the evidence offered at the preliminary hearing, the trial court dismissed the charges against appellee. Appellee was later re-arrested on the same charges, and the Commonwealth notified the defense of its intention to present expert testimony concerning the ink used by appellee to write the notes.

Appellee then filed an omnibus pretrial motion, which included a motion in limine asking the court to rule that the Commonwealth’s expert testimony was inadmissible. At a hearing on the motion, the Commonwealth offered the testimony of two experts, Richard Brunelle and Dr. Antonio Cantu, concerning the reliability and acceptance in the scientific community of ink analysis as a method of dating ink. On May 18, 1989, the trial court entered an order, accompanied by findings of fact and conclusions of law, granting appellee’s motion in limine. The Commonwealth’s subsequent motion for reconsideration was denied, and this timely appeal followed.

The Commonwealth has certified, pursuant to Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), that the court’s order substantially handicaps its prosecution of appellee. Because the effect of the court’s order was to suppress the testimony at issue, we conclude that the present appeal is properly before us. See Commonwealth v. Deans, 388 Pa.Super. 521, 565 A.2d 1230 (1989) (trial court granted motion in limine in part, thereby suppressing expert testimony, and this Court entertained Commonwealth’s appeal after certification pursuant to Dugger).

A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. L. Packel & A.B. Poulin, Pennsylvania Evidence § 103.3 (1987). This Court has reviewed rulings on motions in limine by applying the scope of review appropriate to the particular evidentiary matter at issue. Commonwealth v. Laskaris, 385 Pa.Super. 339, 351-53, 561 A.2d 16, 22-23 (1989). With regard to the type of evidence at issue here, our Supreme Court has held that

expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information, or skill beyond what is possessed by the ordinary juror. As stated in Commonwealth v. Leslie, 424 Pa. 331, 334, 227 A.2d 900, 903 (1967) (quoting Commonwealth v. Nasuti, 385 Pa. 436, 443, 123 A.2d 435, 438 (1956)), “ ‘Expert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience.’ ”

Commonwealth v. Seese, 512 Pa. 439, 442, 517 A.2d 920, 921 (1986). The decision to admit or refuse expert testimony lies within the sound discretion of the trial court, whose decision will not be reversed absent a clear abuse of that discretion. Commonwealth v. Emge, 381 Pa.Super. 139, 141, 553 A.2d 74, 74 (1988).

Appellee argued to the trial court, and argues on appeal, that 1) ink analysis does not meet the legal standard of admissibility in Pennsylvania, and 2) owing to the “two-witness rule,” perjury cannot be proved by opinion testimony. The majority of the trial court’s thirty-four findings of fact dealt with the experts’ qualifications and their testimony concerning ink analysis, and the court expressed concern that “the process required to prove the falsity of Dr. Johnson’s notes lies in the hands of only a select group of individuals throughout this country, most of whom were trained by or who follow the procedures outlined by Mr. Brunelle” (Trial Court Opinion at 11-12). However, the court decided the motion on the basis of the second issue rather than the first and did not decide whether ink analysis meets the legal standard of admissibility in Pennsylvania.

The trial court’s ruling presents a procedural problem that must be addressed. In its initial brief on appeal, the Commonwealth—understandably, in light of the trial court’s failure to rule on the ink analysis issue—challenged only the trial court’s interpretation and application of the “two-witness rule.” In his brief on appeal, appellee not only supported the trial court’s ruling on that issue but also argued that ink dating is not a recognized area of expertise in Pennsylvania. The Commonwealth then addressed the ink analysis issue in a reply brief, which was followed by a reply brief for appellee. However, despite the extensive discussion of the ink analysis issue by the parties, we, as a reviewing court, decline to assume the role of factfinder by making an initial ruling on the issue. Accordingly, the admissibility of ink analysis is a matter that remains to be decided by the trial court, if and when the issue is raised on remand.

With this understanding, we turn to the trial court’s opinion. Section 4902(f) of the perjury statute, 18 Pa.C.S. § 4902(f), states that

“[i]n any prosecution under this section, except under subsection (e) of this section [perjury based on inconsistent statements under oath], falsity of a statement may not be established by the uncorroborated testimony of a single witness.”

According to the trial court,

the “corroboration” section of the statute is the codification of case law’s “two witness rule”, which protects a defendant by requiring that there be testimony of at least two witnesses to prove the falsity of the matter on which the perjury is assigned, or one witness and corroboration. Commonwealth v. Russo, 388 Pa. 462, 464, 131 A.2d 83, 86 (1957). The “two witness rule” was later refined in Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313, 322 [ (1981) ], in that corroboration [“]may be accomplished by the direct testimony of two witnesses or by direct testimony of one witness plus corroborating evidence.”

Trial Court Opinion at 13. Because expert testimony is opinion only, not proof of a fact, the court held, it does not substitute for direct or factual testimony and therefore cannot satisfy the corroboration requirement of § 4902(f).

In response, the Commonwealth contends that the “two-witness rule” is not applicable where, as here, the evidence consists of proof in the form of documents. In any event, the Commonwealth argues, the rule prescribes only the necessary quantity, not the quality, of evidence. Thus, it does not prohibit the use of opinion evidence in a perjury prosecution.

As this Court explained in Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978), the crime of perjury has traditionally been subject to special requirements of proof. Id., 257 Pa.Superior Ct. at 373, 390 A.2d at 1284. Case law accompanying the previous perjury statute, Act of June 24, 1939, P.L. 872, § 322, 18 P.S. § 4322, held that “[t]he two-witness rule, as it is applied in Pennsylvania, requires that the falsity element of a perjury conviction be supported either by the direct testimony of two witnesses or by the direct testimony of one witness plus corroborating evidence.” Id., 257 Pa.Superior Ct. at 373, 390 A.2d at 1284 (emphasis omitted) [quoting Commonwealth v. Field, 223 Pa.Super. 258, 262, 298 A.2d 908, 911 (1972) ]. This rule, the Court noted, had been part of the common law since the seventeenth century. Id. 257 Pa.Super. at 378, 390 A.2d at 1287.

In Broughton this Court was required to decide whether circumstantial evidence could be sufficient to support a conviction for perjury under the present statute, 18 Pa.C.S. § 4902. Acknowledging that if the rule of Field continued to be applicable, appellant’s conviction could not stand, the Court concluded that the adoption of 18 Pa.C.S. § 4902(f) had changed the two-witness rule.

We read this provision to mean that a witness may testify as to his direct observation, or he may provide circumstantial evidence; but in either case, he must be corroborated by the testimony of another witness, whose testimony may provide either direct or circumstantial evidence.

Id. 257 Pa.Super. at 380, 390 A.2d at 1288. Although this change from the common law two-witness rule permitted a perjury conviction to rest on circumstantial evidence alone, “in such event the different pieces of circumstantial evidence must fit together so tightly as to preclude any reasonable doubt of guilt,” id., 257 Pa.Superior Ct. at 380, 390 A.2d at 1288. Such an interpretation, this Court observed, would serve the principal purposes of the common law two-witness rule, namely, protecting the defendant against good-faith mistakes and against the grudge witness. Id., 257 Pa.Superior Ct. at 379-80, 390 A.2d at 1288.

Appellee contends, in effect, that this Court’s opinion in Broughton was overruled sub silentio by the Supreme Court in Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1981) (plurality). In Hude the Court was asked to decide whether the defendant could be tried for perjury arising out of statements he made in a prior trial that resulted in his acquittal of the charges against him. Because the direct evidence of falsity that was produced in the perjury trial was the same evidence that had been rejected in the original trial, the Court held that the doctrine of collateral estoppel could be invoked to bar the prosecution for perjury. Id., 492 Pa. at 621, 425 A.2d at 322.

In Hude, as appellee contends, the Supreme Court interpreted § 4902(f) to require the direct testimony of two witnesses or the direct testimony of one witness plus corroborating evidence. In doing so, the Court cited Broughton, which interpreted the present statute, as well as Field, which interpreted the previous statute. Id., 492 Pa. at 617, 425 A.2d at 322. However, because the opinion containing this language did not gain the support of a majority of the Court, it does not constitute a binding precedent. In addition, the Supreme Court in Hude was not asked to decide, as was this Court in Broughton, whether circumstantial evidence could be sufficient to support a perjury conviction. We conclude, therefore, that the holding of Broughton was not overruled sub silentio in Hude. We note also, with regard to the relative merit of circumstantial as opposed to direct evidence, that the death penalty may be imposed in cases in which the defendant’s conviction of murder in the first degree rests upon circumstantial evidence. Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989).

The Commonwealth contends that not only does § 4902(f) not preclude a perjury conviction based solely on circumstantial evidence, but, pursuant to Commonwealth v. Robinson, 332 Pa.Super. 147, 480 A.2d 1229 (1984), there is no corroboration requirement when the evidence consists of proof in the form of documents. In Robinson, appellant was convicted of perjury after the Commonwealth produced records from a prison, a hospital, and a business to prove that the defendant had not been where he had testified he was on various dates. The issue presented to this Court was: “In a trial for perjury, may the Commonwealth rely solely on documentary evidence to show the falsity of testimony given by the defendant in prior judicial proceedings?” Id,., 332 Pa.Superior Ct. at 149, 480 A.2d at 1230. Because this Court’s analysis of § 4902(f) is crucial to the outcome of the present case, we quote it at some length:

This subsection ... does not purport to establish affirmatively the type or quality of the evidence necessary to convict. It seeks merely to prevent a conviction in a situation where oath has been pitted against oath. Thus, it establishes that a conviction for perjury cannot rest upon the “uncorroborated testimony of a single witness.” The rule has value in safeguarding witnesses in official proceedings from harassment by disappointed litigants. It also protects them from their own or another’s good-faith mistakes.
The provisions of 18 Pa.C.S. § 4902(e)[], it has been held, do not prevent a conviction based on circumstantial evidence. Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978) (rehearing denied). Similarly, the language of the subsection does not preclude a conviction where the only proof of falsity is documentary evidence. Thus, an uncorroborated record of a criminal conviction is sufficient to demonstrate the falsity of a sworn statement that the speaker has never been convicted of a crime. The documentary evidence, however, must be clear and positive.

Id. 332 Pa.Super. at 150-51, 480 A.2d at 1231 (additional citations omitted; emphasis added).

The evidence at issue in the present case is the testimony of expert witnesses concerning certain documents, namely, the handwritten notes of appellee. Appellee contends that this Court’s holding in Robinson does not permit a perjury conviction to be based on such evidence, since Robinson, unlike the case before us, “involved the production of business records, admissible as an exception to the hearsay rule, which are authenticated by the necessary witnesses and which contained direct facts of the occurrence or non-occurrence of certain events” (Brief for Appellee at 13). The holding in Robinson was not based upon the fact that the documents in question were admissible pursuant to the business records exception to the hearsay rule, however, but upon the fact that the evidence “was far more substantial than the uncorroborated testimony of a single witness” and “was positive and convincing.” Id., 332 Pa.Superior Ct. at 153, 480 A.2d at 1232. Nothing in this Court’s opinion in Robinson precludes the possibility that evidence other than authenticated business records may be found to be “clear and positive” evidence of perjury.

Accordingly, as 18 Pa.C.S. § 4902(f) “does not purport to establish affirmatively the type or quality of the evidence necessary to convict” a defendant of perjury, it does not preclude the possibility that the Commonwealth will be able to prove beyond a reasonable doubt, based upon the evidence available in the present case, that appellee committed perjury as defined in 18 Pa.C.S. § 4902(a). The Commonwealth asserts that its evidence will not consist solely of the experts’ testimony, but will also include evidence that when appellee was asked to supply all medical records relating to Yvonne Bolton, the only items not supplied were the handwritten notes in question. In addition, the Commonwealth points out, it may be able to discredit appellee's own testimony through impeachment.

Whether the evidence eventually offered by the Commonwealth will prove beyond a reasonable doubt that appellee committed perjury is not a question that can or should be decided by this Court in an appeal from a pretrial ruling. At this juncture we are not required to weigh the evidence, but only to determine whether § 4902(f) precludes its admission. For this reason, it is unnecessary for us to address appellee’s claims that expert opinion testimony is the lowest grade of testimony and is evidence only of the expert’s opinion, not of facts. These claims concern the weight to be given to the evidence, not its initial admissibility.

In addition, we have reviewed the numerous cases involving challenges to wills that have been cited by appellee in an effort to show that “expert testimony cannot be received as independent evidence to impeach the validity of a document” (Brief for Appellee at 8). Assuming for the sake of argument that these civil cases are relevant to the criminal matter before us, we note that in In re Estate of Cline, 433 Pa. 543, 252 A.2d 657 (1979), the Supreme Court held that although expert opinion evidence in forgery cases is of little weight and cannot prevail against positive evidence of actual facts by witnesses found to be credible, nevertheless

the testimony of handwriting experts that a will offered for probate is a forgery corroborated by probative facts and circumstances may be sufficient to overcome the testimony of those claiming to be subscribing witnesses to the questioned document and to support a finding of forgery and the corroborative evidence may be the most nearly positive and direct evidence which the nature of the case will admit.

Id., 433 Pa. at 547, 252 A.2d at 660. This rule, if applicable to the present case, would not bar the admission of the Commonwealth’s expert evidence.

In conclusion, it cannot be said that as a matter of law the expert opinion testimony which the Commonwealth proposes to offer will necessarily fail to satisfy the requirement of 18 Pa.C.S. § 4902(f) as interpreted by this Court in Commonwealth v. Robinson, supra. That being the case, the trial court’s decision to grant appellee’s motion in limine was a clear abuse of discretion, requiring us to reverse the court’s order of May 18, 1989, and to remand the case for further proceedings.

Order reversed; case remanded for further proceedings; jurisdiction relinquished.

McEWEN, J., notes his dissent.

      . At the conclusion of its opinion, the trial court noted that the charges of false swearing and tampering with or fabricating physical evidence "must also fail for the same reasons stated above for Perjury” (Trial Court Opinion at 16). Subsection (c) of the statute defining the offense of false swearing, 18 Pa.C.S. § 4903(c), states that “Section 4902(c) through (f) of this title (relating to perjury) applies to this section.” As there is no similar provision of 18 Pa.C.S. § 4910, which defines the offense of tampering with or fabricating physical evidence, we are unaware of the basis for the trial court’s ruling regarding this offense. However, our resolution of the present appeal makes further consideration of this point unnecessary.

      . This citation is incorrect, as the Court is clearly referring to § 4902(f).

      . The prison and hospital records were duly proved by the custodians thereof and were received into evidence. Id., 332 Pa.Superior Ct. at 150, 480 A.2d at 1230-31. The employment records of the business were produced by the company’s personnel manager and were referred to during trial, but were not offered into evidence. Id., 332 Pa.Superior Ct. at 150 & n. 1, 152, 480 A.2d at 1231 & n. 1, 1232. This Court made no reference to the business records exception to the hearsay rule.


author: KELLY, Judge: JOHNSON, Judge,

text:
    582 A.2d 341
    COMMONWEALTH of Pennsylvania v. Elias NIEVES, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Filed Sept. 26, 1990.
    Reargument Denied Nov. 27, 1990.

      William R. Wheatly, Lancaster, for appellant.
    James J. Karl, Asst. Dist. Atty., Lancaster, for Com., appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   KELLY, Judge:

Appellant raises ten separate challenges to judgment of sentence imposed upon convictions arising from his knife point sexual assault of a 12 year old girl. Significant issues are raised regarding privacy claims pertaining to medical records subpoenaed in criminal trials, admissibility of gonorrhea results under the business records exception to the hearsay rule, and the proper application of the Rape Shield statute. We find no merit in any of the claims raised, and affirm judgment of sentence. We also deny allowance of appeal of discretionary aspects of sentence.

Facts and Procedural History

Appellant was arrested, tried, and convicted of rape, involuntary deviate sexual intercourse, and various related offenses arising from his knife point sexual assault of the then 12 year old female victim on July 16, 1987. As the result of the assault, the child victim contracted gonorrhea.

Post-verdict motions were denied, and appellant was sentenced to a term of eight to twenty years imprisonment. A motion to modify sentence was denied. This timely appeal followed.

On appeal appellant raises ten allegations of error. We find no merit in the contentions and will discuss and dispose of each seriatim.

I. Trial Court Questioning

First, appellant argues that the evidence was insufficient to sustain the rape conviction as the Commonwealth failed to elicit evidence that the 12 year old victim was not appellant’s wife. The contention is severally flawed.

There was more than sufficient circumstantial evidence to sustain an inference beyond a reasonable doubt that the victim was not appellant’s wife. Succinctly, the victim has testified that she was only 12 years old at the time of the attack, she did not know appellant prior to the attack, she never saw appellant prior to the attack, and she was only able to identify appellant as her attacker as the result of a photographic array supplied by the police. (N.T. 3/8/88 at 26-27, 32, 42-43). There could be no doubt that she was not appellant’s wife. See Commonwealth v. Simpson, 316 Pa.Super. 115, 122, 462 A.2d 821, 824 (1983); Commonwealth v. Schilling, 288 Pa.Super. 359, 368, 431 A.2d 1088, 1092 (1981).

Moreover, any defect in proof of this point was plainly cured when the trial court asked the victim directly whether she was appellant's wife and she responded that she was not. (N.T. 3/8/88 at 53). The trial court’s abundant caution in that respect was commendable. See Commonwealth v. Tharp, 575 A.2d 557, 558-59 (Pa.1990); Commonwealth v. Roldan, 524 Pa. 366, 368, 572 A.2d 1214, 1215 (1990); Commonwealth v. Rasheed, 392 Pa.Super. 280, 290, 572 A.2d 1232, 1239-40 & n. 4 (1990) (Kelly, J., concurring and dissenting); Commonwealth v. King, 378 Pa.Super. 553, 557-58, 549 A.2d 195, 197 (1988); Commonwealth v. Johnson, 355 Pa.Super. 123,139-44, 512 A.2d 1242, 1251-52 (1986). The first contention is without merit.

II. Privacy of Prison Medical Records

Next, appellant contends that his constitutional and statutory rights to privacy were violated when appellant’s prison medical records were seized pursuant to a search warrant issued by a neutral and detached magistrate upon probable cause to believe that evidence of the crime of rape would be discovered, in that the records would confirm that appellant had gonorrhea, as had the victim’s assailant. We find no merit in the contention.

Appellant claims that his right to privacy under the Disease Prevention and Control Law of 1955 (35 P.S. § 521.15), the Patient’s Bill of Rights (28 Pa.Code § 115.27), the Clinical Laboratories Act (28 Pa.Code § 5.53), and the Constitution was violated. None of the statutory restrictions apply by their terms to prison medical records. More importantly, this Court has previously held that even statutorily privileged confidential medical records must be disclosed to the Commonwealth in sexual abuse cases when the presence or absence of venereal disease is relevant to an issue at trial. Commonwealth v. Moore, 378 Pa.Super. 379, 548 A.2d 1250 (1988). Moreover, we find no basis whatsoever for appellant’s amorphous constitutional privacy claim.

Here, the Commonwealth obtained a search warrant for the evidence, rather than following the petition procedure described in Moore. While the petition procedure may be preferable, it is not mandated as yet by statute or by procedural rule. Though the subpoena process may lack safeguards provided by the petition procedure, we nonetheless find it adequate authority upon which the prison may rely in disclosing appellant’s medical records.

Finally, even if the procedures followed were inadequate, exclusion would not be an appropriate remedy. There was no statutory exclusionary rule enacted in any of the statutes cited, and there has been no pattern of willful violations to warrant application of a judicially created exclusionary rule.

Hence, we find no merit in the second contention.

III. Business Records Exception/Medical Tests

Appellant contends that it was error to admit evidence of his positive test result for gonorrhea under the business records exception to the hearsay rule. We cannot agree.

This Court has previously held generally that medical opinions and diagnoses are not admissible as business records, but instead required live testimony by a qualified medical expert. See e.g., Commonwealth v. Hemingway, 369 Pa.Super. 112, 534 A.2d 1104 (1987). However, that general rule does not extend to records of the results of standard tests for the presence of spermatozoa in the victim’s vagina or for alcohol in a defendant’s blood. See Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986); Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979). We find standard gonorrhea tests to be sufficiently similar to standard spermatozoa and alcohol tests to fall within the latter precedent, and outside the general rule.

Appellant argues further that even if business records of such standard tests were admissible generally, they should not be here, because the test was performed by an outside testing lab rather than by a prison employee on-site. Appellant seeks to analogize the testing lab to a mere bystander whose information could not properly become part of an admissible business record. Cf Hass v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952).

The analogy, however, is a false one. Far from being a mere bystander, the testing lab was an independent contractor plainly providing the information included in the business record in the ordinary course of the business relationship. Much information in modern business records may be supplied by suppliers or purchasers, principal contractors or sub-contractors or other business people acting in the interdependent, information oriented context of modern business. It is the business purpose of the record, rather than the employee status of the source, which renders such hearsay evidence specially reliable. Hence, we see no reason to treat an off-site venereal disease blood test results differently than on-site results. See Binder, Hearsay Handbook, § 805, at 150-52 (1983 & 1989 supp.) (collecting cases involving non-employee generated business records). Hence, we reject appellant’s challenge to the admissibility of the business records evidence of the gonorrhea test results.

IV. Contemporaneous Misconduct Evidence

Appellant contends that the trial court erred in failing to declare a mistrial when the police officer, while recounting otherwise admissible portions of appellant’s statement to police, noted that appellant had admitted using cocaine on the night in question. We find no merit in the contention.

Evidence of contemporaneous bad acts, such as the use of cocaine, is admissible if it was part of the same transaction, completes or adds to the understanding of the events in question, and is not unduly prejudicial. See Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989). The well-known stimulating and disinhibiting effects of cocaine provide a more than sufficient basis to conclude that the contemporaneous criminal conduct was admissible under the res gestae exception in a trial involving charges that the defendant committed sexual abuse on a twelve year old girl while high on cocaine. See MacDonald, et al, Heavy Cocaine Use and Sexual Behavior, 18 J. Drug Issues 437, 437-55 (1988) (reporting stimulating and disinhibiting effects; but, detailing various forms of sexual dysfunction caused by cocaine abuse); Gold, 800-Cocaine, at 18-19 (3rd Ed.1986) (noting disinhibiting and stimulating effects, and potential for sexual dysfunction); Stone, Fromme, & Kagan, Cocaine: Seduction and Solution, at 20-21 (1984) (same). Given the potential of cocaine use to contribute to appellant’s violent sexual aggression against the child victim, appellant’s cocaine use was relevant and admissible.

Regardless, in an abundance of caution, the trial court sustained an objection to the passing, unsolicited remark, and a prompt curative instruction was given. The adequacy of that course of conduct was for the trial court to decide, and we find no abuse of discretion. Commonwealth v. Gibson, 389 Pa.Super. 518, 546, 567 A.2d 724, 738 (1989).

V. Indirect References to Prior Misconduct

Appellant raises two separate allegations of prejudicial suggestions of prior misconduct. He challenges the failure to give a curative instruction following two unsolicited remarks by the nurse witness (who presented the gonorrhea test results) that she worked at a prison. He also challenges the adequacy of a curative instruction given after the police officer’s unsolicited, passing remark that a photo array shown to a witness after the crime was comprised of photographs of persons arrested previously. We find no merit in the contentions individually or taken together.

The jury was aware that appellant had been arrested, and so the fact that a prison nurse had mentioned that appellant had been incarcerated when a post -arrest blood test was performed merely disclosed that he had not immediately been released on bail. That fact did not imply prior or unrelated criminal conduct. As the remark was relatively innocuous, we see no reason why the trial court should have drawn undue attention to it.

The disclosure that photographs used in an array were mugshots was improper. Nonetheless, we have no reason to doubt the efficacy of the simple curative instruction given by the trial court. See Commonwealth v. Gibson, supra, 567 A.2d at 737.

VI. Application of the Rape Shield Law

Appellant contends that the trial court erred in refusing to permit him to cross-examine the victim on the issue of other sexual experience in an effort to suggest an alternate source of gonorrhea. We find no merit in the contention.

At common law, evidence of a female rape complainant’s general reputation for morality and chastity was deemed admissible on the issue of consent. The result of this common law rule was notorious abuse of victim witnesses by aggressive defense counsel who essentially put the victim on trial. In response to such unjustifiable abuses, the federal government and the states enacted statutes known as Rape Shield laws. Rape Shield laws were intended to end the abuses fostered by the common law rule by limiting the harassing and embarrassing inquires of defense counsel into irrelevant prior sexual conduct of sexual assault complainants. See Williams, Rape Reform Legislation and Evidentiary Concerns: The Law in Pennsylvania, 44 U.Pitt.L.Rev. 955, 955-75 (1985); see generally White, Evidentiary Privileges and the Defendant’s Constitutional Right to Introduce Evidence, 80 J.Crim.L. & Crim. 377, 377-426 (1989); Kello, Rape Shield Paradox: Complain and Protection Amidst Oscillating Tends Of State Judicial Interpretation, 78 J.Crim.L. & Crim. 644, 644-98 (1987); Gavin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn.L.Rev. 763, 763-916 (1986); Haxton, Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence, 1985 Wisc.L.Rev. 1219, 1219-72 (1985); Tall, Evidence—Rape Shield Statutes, 19 Gonzanga L.Rev. 437, 437-51 (1984); Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L.Rev. 90, 90-120 (1977).

Though laudable and long-overdue, Rape Shield laws, if rigidly construed, could impermissibly encroach upon a defendant’s right to confront and cross-examine witnesses which is secured by the United States and Pennsylvania Constitutions. The manner in which those counterveiling interests are to be balanced has been the subject of considerable litigation in this Commonwealth and other jurisdictions. See generally Annotation, Constitutionality of “Rape Shield” Statute Restricting Use of Evidence of Victim’s Sexual Experiences, 1 ALR 4th 283, 283-305 (1980 & 1989 Supp.); Annotation, Admissibility in Incest Prosecution of Evidence of Alleged Victim’s Prior Sexual Acts With Persons Other Than Accused, 97 ALR 3d 967, 967-80 (1980 & 1989 Supp.); Annotation, Modern Status of Admissibility, In Forcible Rape Prosecution, Of Complainant’s General Reputation for Unchastity, 95 ALR 3d 1181, 1181-97 (1979 & 1989 Supp.); Annotation, Modern Status of Admissibility, In Forcible Rape Prosecution, Of Complainant’s Prior Sexual Acts, 94 ALR 3d 257, 257-86 (1979 & 1989 Supp.).

In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), our Supreme Court construed the Pennsylvania Rape Shield law to intend to exclude only irrelevant and abusive inquiries, and not to exclude inquiries regarding relevant evidence which would tend to disprove the allegation. 470 A.2d at 84. In Majorana, the defendant had made a specific offer to prove through the testimony of an identified third person that the semen and sperm detected in the victim’s body, which had been offered as evidence to corroborate the victim’s testimony, had actually come from a separate source. 470 A.2d at 81, 84.

In Commonwealth v. Lyons, 364 Pa.Super. 620, 528 A.2d 975 (1987), this Court held that a defendant had improperly been denied an opportunity to provide an alternate explanation for blood stains on panties offered to corroborate charges of child sexual abuse. A claim that the proffered evidence was too remote was rejected because of the indefiniteness as to when the panties were worn or stained. 528 A.2d at 978. The adequacy of the proffer made in that case was not otherwise discussed.

In Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), this Court remanded for an evidentiary hearing as to whether the trial court improperly denied the defendant an opportunity to demonstrate a specific motive for the complainant to bring false charges against the defendant, because the defendant had allegedly thwarted the complainant’s alleged incestuous relationship with her brother by throwing him out of the family home shortly before the challenged charges were brought. While the proffered evidence was deemed potentially relevant, this court, nonetheless, remanded for a hearing to determine whether the specific proffer was relevant, whether the proffered evidence was more probative than prejudicial, and whether alternative (unprivileged) grounds for impeachment existed. 487 A.2d at 401.

Taken together, Majorana, Lyons, and Black demonstrate that the Rape Shield law will bow to a defendant’s right to confront and cross-examine when a specific proffer demonstrates that the proposed inquiry is intended to elicit relevant evidence, which is more probative than prejudicial, and which is not cumulative of other evidence available without encroaching upon Rape Shield law protections. Ma jorana, Lyons, and Black, thus, involve limited exceptions to the broad exclusion of the Rape Shield law.

The significance of the required offer of proof is demonstrated in our prior decision in Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989). In Troy, this Court held that the defense counsel’s proffer as to the relevance of evidence otherwise inadmissible under the Rape Shield law was too vague and conjectural to warrant even a remand for further inquiry under Black, 553 A.2d at 996-97. The absence of an adequate specific proffer is, thus, fatal to challenges to Rape Shield protections.

It is true that in Commonwealth v. Jorgenson, 512 Pa. 601, 517 A.2d 1287 (1986) (per Zappala, Nix, C.J., and Flaherty, McDermott, JJ., join; Papadakos, J., dissents; Larsen and Hutchinson, JJ., join the dissent), a bare majority of our Supreme Court remanded for an evidentiary hearing despite a vague proffer of an alternate explanation for physical evidence offered in support of sexual abuse charges. By its terms, however, the majority opinion in Jorgenson was of extremely limited prospective precedential value. The failure to provide a specific proffer was deemed excusable because Majorana had not yet been decided, and because the trial court’s express reliance upon Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980), had rendered any question of specificity of the proffer moot. 517 A.2d at 1290. In Duncan, this Court had construed the Rape Shield law broadly, as an essentially absolute bar without exceptions. The dissenting members of our Supreme Court in Jorgenson disagreed with the majority’s conclusion that the absence of a specific proffer was excusable, and emphasized the patent inadequacy of the proffer. 517 A.2d at 1292.

We find that the allowance of remand for an evidentiary hearing in Jorgenson was limited to cases decided in the trial court prior to Majorana, and where the trial court expressly relied upon Duncan. As neither limitation is met here, we find Troy rather than Jorgenson controlling. The absence of an adequate proffer here, was therefore fatal to appellant’s claim.

While the procedural defect is sufficient to dispose of the claim, we find it appropriate to note the substantive deficiency of the claim as well. Substantively, a proffer seeking to avoid the Rape Shield law bar must meet the three prong test suggested in Majorana, and expressly set forth in Black: the evidence must be relevant; must be more probative than prejudicial; and may not be merely cumulative of other unprivileged impeachment or rebuttal evidence. Majorana, supra, 470 A.2d at 84-85; Black, supra, 487 A.2d at 401. Several cases have demonstrated the significance of these limitations.

In Commonwealth v. Erb, 524 Pa. 103, 569 A.2d 352 (1990), our Supreme Court reversed an unpublished order of this Court which had granted a new trial based upon the exclusion of excerpt from the complainant’s diary describing her sexual interest in a boyfriend, which had been offered to establish a motive to make false charges of sexual assault against her father, who had allegedly thwarted the relationship between his daughter and the boyfriend by recently moving the family. See Commonwealth v. Erb, 380 Pa.Super. 645, 547 A.2d 436 (1988). The apparent basis for the per curiam reversal and reinstatement of the verdict and sentence was that the Majorana standard of relevance, probative value, and necessity had not been met. 569 A.2d at 352, citing Commonwealth v. Majorana.

In Commonwealth v. Johnson, 389 Pa.Super. 184, 566 A.2d 1197 (1989), this Court held that a proffer regarding a hearsay statement attributed to the complainant suggesting that another had sexually assaulted the complainant on a prior occasion was not sufficient to demonstrate an alternate explanation for the evidence or to demonstrate a motive to raise false charges. This Court agreed with the trial court that the evidence, even if arguably relevant, was nonetheless more prejudicial than probative and so was therefore properly excluded. 566 A.2d at 1202.

In Commonwealth v. Appenzeller, 388 Pa.Super. 172, 565 A.2d 170 (1989), this Court held that evidence of prior sexual abuse suffered by a three year old victim offered to provide an alternate source for the young child’s rudimentary knowledge of sexual functions and terms, was not relevant because poor parental supervision of the child victim had made it “highly likely” that she had learned sexual functions and terms through sources other than the alleged sexual assault by appellant. Because the circumstance of that case were deemed not to render the child victim’s rudimentary knowledge of sexual functions and terms incriminating as to Appenzeller, the proffered evidence of an additional alternate source the child victim’s knowledge (through a sexual assault committed by another) was deemed to be more prejudicial than probative. 565 A.2d at 171.

In Commonwealth v. Poindexter, 372 Pa.Super. 566, 539 A.2d 1341 (1988), this Court held that, where the trial court had admitted evidence that the complainant was angry at the accused for filing criminal charges against her boyfriend, the trial court did not err in refusing to permit the accused to inquire as to the level of intimacy involved in complainant’s relationship with her boyfriend. The inquiry was deemed to be focused on evidence which would have been of minimal probative value, but of high potential prejudicial impact. 539 A.2d at 1344.

Finally, in Commonwealth v. Simmons, 355 Pa.Super. 326, 513 A.2d 453 (1986), this Court held that proffered evidence that the complainant had made her allegations against the accused only when she was first confronted by her mother with a rumor that complainant was pregnant did not fall with the bias/motive precedent of Commonwealth v. Black, supra. This Court found that the proffer failed to demonstrate a sufficient motive to falsely accuse the defendant so as to render the evidence more probative than prejudicial, especially when the victim’s delay in reporting the assault had otherwise been fully presented and argued to the jury. 513 A.2d at 454-55.

Taken together, Erb, Johnson, Appenzeller, Poindexter, and Simmons demonstrate the substantive limitations on the exceptions to Rape Shield law protections applied in Majorana, Lyons, and Black. These limitations are significant and cannot be ignored.

In summary, while the Rape Shield law must bow to the need to permit an accused an opportunity to present genuinely exculpatory evidence, the Rape Shield law nonetheless remains an effective limitation on abusive inquires addressed to irrelevant personal matters which were formerly conducted to harass and defame the complainant while distracting the jury from the legitimate issues involved in sexual assault cases. There is a delicate balance to be maintained. That balance is to be maintained by requiring a specific proffer and by evaluating the proffer for relevance, probativeness, and necessity. See Commonwealth v. Majorana, supra; Commonwealth v. Black, supra; Commonwealth v. Troy, supra.

Applying the foregoing to the instant case we have no hesitation in finding appellant’s claim to be meritless. First, appellant made no proffer whatsoever. Rather, appellant concedes that he has no idea of whether any relevant evidence would be secured by his proposed inquiry. Indeed, for the inquiry to disclose relevant evidence, it would have to establish not only a separate sexual assault on the 12 year old victim, but a separate assault by a gonorrhea infected assailant within a time period which would account for the state of gonorrhea infection detected in the child victim. In neither the trial court, nor here on appeal, has appellant provided any basis to suggest that such evidence exists. We find no authority for the kind of “fishing expedition” style intrusions on Rape Shield law protections proposed by appellant in the Pennsylvania or United States Constitutions or in our prior case law.

Moreover, even if the inquiry were permitted and such evidence was discovered, such evidence would merely suggest a possible alternate source for the infection; it would not preclude appellant as the actual source of the infection. Given the minimal probative value and high potential prejudice of such evidence, we would find no error in its exclusion. Cf. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Appenzeller, supra, 565 A.2d at 172. Hence, we find no error in declining to permit inquiry designed to seek such evidence.

Finally, even if the inquiry was improperly restricted, we would find that other overwhelming evidence rendered any error in the exclusion of this minimally relevant questioning harmless beyond a reasonable doubt. Hence, for each of the above reasons we find no merit in appellant’s contention.

VII. Reciprocal Discovery

Appellant next contends that he was prejudiced by the Commonwealth’s failure to comply with the reciprocal discovery mandate of Pa.R.Crim.P. 305(C)(1)(c) when appellant served notice of intent to present an alibi defense. The trial court found that the appellant was well aware of the evidence to be presented to rebut his alibi claim, and that the technical error of the Commonwealth in not submitting a list with the complainant’s name and the name of the police officer to whom prior inconsistent statements had been made by appellant was harmless. Appellant was aware that the victim would contradict his alibi claim, and he was provided with copies of the police reports which recorded his prior inconsistent statements during informal discovery. These facts render Commonwealth v. Jackson, 457 Pa. 79, 319 A.2d 161 (1974) materially distinguishable. The trial court found the purpose of the Rule to have been fulfilled despite the technical violation of its letter, and concluded that no relief was appropriate, then or now. We agree. Commonwealth v. Pickford, 370 Pa.Super. 444, 536 A.2d 1348 (1987), appeal granted 520 Pa. 596, 552 A.2d 251 (1988).

VIII. Challenge to Discretionary Aspects of Sentence

Finally, appellant contends that the trial court abused its discretion in imposing concurrent sentences of 8 to 20 years imprisonment for involuntary deviate sexual intercourse and 2lh to 5 years imprisonment for terroristic threats. We deny allowance of appeal as to these issues.

Appellant has failed to include a concise statement of reasons for allowance of appeal. Pa.R.A.P. 2119(f). Moreover, cursory review of the brief and the. record reveals the complete absence of a substantial question. The seriousness of the offense, aggravating circumstances of the victim’s age and appellant’s other offenses fully warranted the sentence imposed. Moreover, review of the contents of the Pre-Sentence Report including the Victim Impact Statements was entirely proper. See Commonwealth v. Penrod, 396 Pa.Super. 221, 232, 578 A.2d 486, 491 (1990); Commonwealth v. McLaughlin, 393 Pa.Super. 277, 286, 574 A.2d 610, 614-15 (1990); 42 Pa.C.S.A. §§ 9721, 9731 et seq.; 71 P.S. § 180-9.3(1). No one prevented appellant from subpoenaing witnesses for the sentencing hearing to cross-examine, impeach, or rebut witnesses regarding statements in those reports, or from seeking a continuance to do so. See 42 Pa.C.S.A. § 9721. Hence, the procedural challenge is specious. Because the substantive claim is plainly merit-less, we decline to direct the purposeless act of supplementing the brief to bring it into compliance with Pa.R.A.P. 2119(f).

Conclusion

Based upon the foregoing, we affirm judgment of sentence and deny allowance of appeal of the discretionary aspects of sentence.

JOHNSON, J., filed a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting:

I join in the majority’s decision to affirm Nieves’ conviction, and I agree with the majority’s analysis and disposition of the issues regarding the trial court questioning, the contemporaneous misconduct evidence, indirect references to prior misconduct, reciprocal discovery, and the challenge to discretionary aspects of sentencing. However, I do not join in any part of the analysis of the Rape Shield Law issue. I agree with the majority only in that the requested permission to conduct a cross-examination regarding the victim’s prior sexual activity was properly denied.

In this case both Nieves and the twelve-year-old victim had gonorrhea. The victim had been infected less than forty-eight hours before the post-assault examination. Nieves wanted to cross-examine the victim in an attempt to show that she had sexual relations with others, which would be an alternate source of her gonorrhea. He did not have a proffer of specific evidence but rather essentially asked the court to allow him to conduct a fishing expedition. The Rape Shield Law, codified at 18 Pa.C.S. § 3104, provides:

(a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

18 Pa.C.S. § 3104.

The statute is unambiguous, and the legislative intent is clear. In enacting this statute and making evidence of past conduct or reputation for past conduct inadmissible, the legislature “totally rejected]” the notion that the past conduct of the complainant is probative of consent to the act at issue. Commonwealth v. Majorana, 503 Pa. 602, 609, 470 A.2d 80, 83 (1983). The legislature made a strong statement that any use of prior sexual conduct with a third person for the purpose of proving consent or moral defect is prejudicial and of only limited probative value.

The statute allows consideration of whether past conduct evidence is admissible only if the victim and the defendant had past sexual relations, and the defense is consent. In § 3104(b) the statute sets forth a rigorous procedure to determine whether to admit or to exclude the evidence. Preliminarily, the defendant must place consent in issue by an offer of proof of evidence supporting the allegation, and only if the offer is sufficient on its face will the court then conduct an in camera hearing to determine whether the proffered evidence should be excluded pursuant to the rules of evidence; that is, even if logically relevant, the evidence should be excluded if its probative value is outweighed by unfair prejudice. 18 Pa.C.S. § 3104(b); See Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985).

The Rape Shield Law has withstood challenges to its constitutionality. In Commonwealth v. Quartman, 312 Pa.Super. 349, 458 A.2d 994 (1983) this court decided that the Rape Shield Law did not violate the defendant’s right to confrontation, and in Commonwealth v. Strube, 274 Pa.Super. 199, 418 A.2d 365 (1979), cert. denied, Strube v. Pennsylvania, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980), we decided that the procedure set forth in 3104(b) does not violate a defendant’s constitutional right to due process. In Quartman the court explained that the:

fundamental right to confront witnesses often gives way, however, to certain evidentiary principles. The exclusion of hearsay evidence, for instance, is premised on the idea that such statements often lack the relevancy necessary to outweigh their questionable truthfulness and potential prejudice. In the same way, prejudicial and irrelevant opinion and reputation evidence is often excluded. These varied evidentiary exclusions do not deny an accused his right to a fair trial[,] as his need for the evidence is outweighed by considerations of truth and relevancy. Similarly, there is no constitutional right of the accused in a rape case to introduce evidence that is prejudicial, inflammatory and irrelevant.

Commonwealth v. Quartman, 312 Pa.Super. 349, 353, 458 A.2d 994, 996 (1983).

Our courts have created two additional narrowly-drawn exceptions to the evidence bar in addition to the exception supplied by the statute itself. In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), semen was present in the victim after the alleged attack. The defendant’s defense was that there never was an attack but that semen was present because he had consensual sex with the victim two hours before the alleged attack. The Supreme Court distinguished this situation from a consent defense and held that in order to preserve the defendant’s right to confrontation, the Rape Victim Shield Law may not automatically bar evidence that an act other than the charged rape produced the objective signs of intercourse. Such evidence would be directly relevant to negate that there even was a sexual act between the victim and the defendant at the time of the alleged attack. However, the court emphasized that the proffered evidence must be:

evidence of an act close enough in time to account for the objective signs of intercourse and is further limited to the purpose of explaining the presence of those objective signs. However, a defendant cannot engage in the wide-ranging and harassing cross examination the statute legitimately prohibits.

Majorana, 503 Pa. at 611, 470 A.2d at 85 (emphasis added).

In Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), this court carved out a second exception to the absolute bar of the Rape Shield Law. A father was. convicted of the statutory rape of his thirteen-year-old daughter. In defense, the father sought to introduce evidence that the daughter was having relations with her brother, which the father discovered. The father claimed that his discovery of this relationship triggered the daughter’s retribution through false accusation. We held that the Rape Shield Law cannot unequivocally bar such evidence. The Black court cautioned, however, that:

While we hold that Pennsylvania’s Rape Shield Law may not be used to exclude relevant evidence showing 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.” Commonwealth v. Stewart, 304 Pa.Super. 382, 387, 450 A.2d 732, 734 (1982) (additional citations omitted).

Commonwealth v. Black, 337 Pa.Super. 548, 557, 487 A.2d 396, 401 (1985). Significantly, the court determined that the evidence balancing determination should proceed by the proffer and in camera hearing procedure as mandated by 18 Pa.C.S. § 3104(b).

The majority states that “[tjhough laudable and long-overdue, Rape Shield laws, if rigidly construed, could impermissibly encroach upon a defendant’s right to confront and cross-examine witnesses which is secured by the United States and Pennsylvania Constitutions.” Majority Opinion at 9. This statement improperly suggests that a re-evaluation of constitutionality by means of balancing the interests must occur every time the Rape Shield Statute is invoked.

First, the question of the Rape Shield Law’s constitutionality has been resolved by our courts and should not be under consideration in the present case. Further, reasoning from the premise of constitutionality, Majorana and Black create the only two exceptions to the absolute bar of the statute outside of the single exception included in the statute itself. The question of constitutionality, by means of applying a balancing of interests test, should not be revisited in every rape case. No authority approves such an approach. Unless the defendant presents the court with evidence that on its face establishes that either the statutory or one of the two judicially-created exceptions applies, the proffered evidence or requested cross-examination will be excluded on the basis of the Rape Shield Law without further consideration. § 3104; Majorana, supra; Black, supra. That the majority invokes numerous cases that consider whether one of these exceptions applies does not prove the contrary; the discussion only creates a misleading impression that courts always go beyond the plain language of the statute when applying the Rape Shield Law.

No cautious analysis is required in the case before us. Rather, it calls for direct application of the law to a fact situation that has already been considered by our Supreme Court. Nieves wanted to cross-examine the victim about prior sexual activity in order to uncover an alternative source of her gonorrhea. Therefore, under Majorana, if Nieves had proffered evidence that the victim had intercourse with another person infected with gonorrhea within forty-eight hours of the incident in question, the court may have allowed such evidence if, following an in camera hearing, it determined that the probative value of the evidence outweighed introduction of unfair prejudice.

However, Nieves offered no specific evidence of prior sexual intercourse of the victim with a particular person or a particular time close to the alleged assault. Opinion, Hon. D. Richard Eckman, President Judge, filed March 10, 1989. Rather, he asked permission to cross-examine the victim about her prior sexual activity generally. Because Nieves asked to cross-examine the victim generally regarding her past sexual activity and did not proffer specific evidence, we never reach the Majorana exception. No balancing is called for. All we must do is to apply the Rape Shield Law. I would hold that the trial court properly denied Nieves’ request for permission to cross-examine the victim regarding her prior sexual experience on the sole basis that the Rape Shield Statute prohibits it.

I would also add to the majority’s analysis of the admissibility of prison medical records and scope of business records exception issues that Nieves’ argument based upon the Disease Prevention and Control Law of 1955, codified at 35 P.S. 521.1 et seq., fails on the basis of the reason given by the trial court, that although the act contains penalties, none of these penalties are exclusion of evidence. Further, I would hold that Commonwealth v. Moore, 378 Pa.Super. 379, 548 A.2d 1250 (1988), alloc, granted 521 Pa. 616, 619, 557 A.2d 720, 722 (1989), which interprets 35 P.S. § 521.1 et seq, defeats both a challenge to the admissibility of the medical records that Nieves had gonorrhea and a challenge to the manner of its admission.

      . In this regard, both Majorana is materially distinguishable. Succinctly, in Majorana the physical evidence could have had only one source; consequently, acceptance of the alternate source would disprove the prosecution’s proffered source and would thereby directly and significantly undermine the charges. Here, since appellant and the victim have gonorrhea, and the source of gonorrhea could not be determined even if there were an identified alternate additional potential source, the exculpatory impact of alternate source evidence would be considerably less than that in Majorana.

      . Appellant was convicted and sentenced to probation on three robbery counts in 1980. More significantly, this panel has recently affirmed judgment of sentence imposed on appellant’s convictions of rape and terroristic threats in a separate knife point sexual assault on an adult victim. See Commonwealth v. Nieves, 579 A.2d 419 (Pa.Super. 1990).