author: POPOVICH, Judge:

text:
    666 A.2d 739
    COMMONWEALTH of Pennsylvania, Appellant v. Mark A. ELISCO, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1995.
    Filed Oct. 25, 1995.

      Dennis Elisco, New Castle, for appellee.
    Before ROWLEY, President Judge, and POPOVICH and SAYLOR, JJ.
   POPOVICH, Judge:

The Commonwealth appeals from an order entered in the Court of Common Pleas of Lawrence County dismissing its petition for a writ of certiorari. The Commonwealth sought review of a district justice’s dismissal of a summary driving offense charge filed against appellee, Mark Elisco. The Commonwealth now contends that the trial court erred in holding that the district justice did not commit an error that was reviewable on certiorari. After careful review, we vacate the order entered in the lower court and remand for proceedings consistent with this opinion.

The origins of this case involve a traffic stop by a New Castle Police Officer Thomas Macri. Officer Macri observed appellee, Mark Elisco, operating a motor vehicle and believed, on the basis of an old and uncertified driving record, that Elisco’s license was suspended. Elisco proceeded to a parking lot and, after emerging from his car, was detained by Officer Macri who informed Elisco that he intended to issue a citation. Because Officer Macri was in plainclothes and driving an unmarked car, he contacted Officer Atkins who was driving a patrol car. Officer Atkins arrived and issued Elisco a citation for driving while under suspension.

A hearing was held before District Justice Earnest Crawford during which Elisco made a motion to dismiss the charge of driving while under suspension because of an alleged violation of Section 1543(d) of the Vehicle Code. District Justice Crawford agreed with Elisco and dismissed the charges based upon Section 1543(d) and upon Commonwealth v. Heckman. The Commonwealth sought review of this ruling by filing a praecipe for a writ of certiorari with the Court of Common Pleas of Lawrence County. The Honorable Glenn McCracken, after oral argument, dismissed the Commonwealth’s petition finding that District Justice Crawford had not committed any errors that were reviewable on a petition for a writ of certiorari. The Commonwealth then brought this timely appeal.

A lower court’s decision on the issuance of a writ of certiorari will not be disturbed absent an abuse of discretion. Commonwealth v. McGinley, 386 Pa.Super. 547, 563 A.2d 518 (1989). Certiorari provides a narrow scope of review in a summary criminal matter and allows review solely for questions of law. Commonwealth v. Cook, 226 Pa.Super. 273, 308 A.2d 151 (1973); Commonwealth v. Reese, 364 Pa.Super. 553, 528 A.2d 647 (1987). Questions of fact, admissibility, sufficiency or relevancy of evidence questions may not be entertained by the reviewing court on certiorari. Id. 308 A.2d at 153. A petition for a writ of certiorari provides an aggrieved party an alternative to a trial de novo in the Court of Common Pleas. Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263, allocatur denied, 517 Pa. 594, 535 A.2d 83.

Here the court found that the district justice had not committed an error that was reviewable on a petition for certiorari. This was an erroneous conclusion. Cook clearly establishes that questions of law may be reviewed by a common pleas court on certiorari. The lower court stated that the petition for certiorari must be dismissed even though it disagreed with the application of the law by the district justice. This conclusion was reached because the lower court concluded that only procedural irregularities appearing on the face of the record were reviewable. Cf. Reese, supra, (holding that a writ of certiorari is the proper method for the Commonwealth to seek review of a procedural dismissal of a summary driving offense charges).

In Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991), a panel of this court held that prior to the filing of a citation issued under § 1543 the issuing police officer could verify the suspension by receiving a certified driving record from PennDot. Id. 590 A.2d at 1264. Here, the district justice held that the requirements of Heckman had not been met by the Commonwealth. District Justice Crawford stated “[n]o attempt to verify the record was made either by phone, or police clean teletype or in any other manner prior to the issuance of the citation.” The charge was then dismissed. Heckman only requires that the suspension be verified prior to the filing of a citation, not the issuance of a citation. A certified driving record was received by Officer Atkins three weeks after the citation was issued. Thus, the district justice misapplied the law, and the lower court erroneously believed that it could not review this application of the law.

The lower court believed that it could not examine this application of the law based upon P.R.C.P.D.J. 1009 A (“Rule 1009 A”) which establishes procedures for petitioning for a writ of certiorari. Rule 1009 A is a rule of civil procedure and not applicable in the context of a summary criminal case. Thus, both appellee and the lower court believed that Rule 1009 A applied to this case and precluded review of the district justice’s application of the law. In light of the foregoing, the lower court erred in dismissing the Commonwealth’s petition for certiorari.

The order of the lower court is reversed and this case is remanded for further consideration of the Commonwealth’s petition for a writ of certiorari. Jurisdiction relinquished.

      . 75 Pa.C.S.A. § 1543(a).

      . 75 Pa.C.S.A. § 1543(d) provides:
      (d) Citation of appropriate subsection. — Prior to filing a citation for a violation of this section with the issuing authority named in the citation, the police officer shall verify the basis for the suspension with the department. Upon receiving the verification, the officer shall cite the appropriate subsection of this section on the citation.
      75 Pa.C.S.A. § 1543(d).

      . 404 Pa.Super. 335, 590 A.2d 1261 (1991).

      . Pa.R.C.P.D.J. 1009 A specifically provides:
      Unless he was the plaintiff in the action before the district justice, a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction of over the parties or subject matter, jurisdiction over the parties or subject matter, improper venue or such gross irregularity of procedure as to make the judgment void. If the party aggrieved by the judgment was the plaintiff in the action before the district justice, he máy file a praecipe for a writ of certiorari only on the last mentioned ground.
      Pa.R.C.P.D.J., Rule 1009 A, 42 Pa.C.S.A.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    666 A.2d 741
    Debra L. CODA, Appellee, v. Jeffrey M. CODA, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1995.
    Filed Oct. 11, 1995.

      Jeffrey M. Coda, pro se, appellant.

      John E. Perrott, Uniontown, for appellee.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   WIEAND, Judge:

Jeffrey M. Coda (Husband) has appealed pro se from a protection from abuse order entered against him on June 14, 1994. The trial court ordered Coda to refrain from abusing his wife, Debra L. Coda (Wife), evicted Husband from the marital apartment, and granted temporary custody of the children to Wife. On appeal, Husband argues that the trial court should have granted him a continuance of the hearing, should have permitted him to introduce a police report during his testimony, and should have decided against Wife’s allegation of abuse. After careful review of the record, we reverse and remand for a new hearing.

We observe that Husband failed to file post-trial motions pursuant to Pa.R.C.P. 1905(b) and 227.1. Such motions were required at the time the trial court entered the subject order. Their absence normally results in a waiver of Husband’s issues on appeal. See: Weir v. Weir, 428 Pa.Super. 515, 524, 631 A.2d 650, 654 (1993). However, Rule 1905(b) was amended on March 30, 1994, with an effective date of July 1, 1994, and now states that “[n]o motion for post-trial relief may be filed to the final order.” Under these circumstances, simple justice requires that we overlook the procedural defect in Coda’s appeal and consider the merits thereof.

At the start of the proceedings, Husband notified the trial court that Officer Ryan, a witness under subpoena by Husband, had failed to appear. Husband requested sanctions against the officer, a matter which the trial court deferred, and advised the trial court that he “would probably move for a continuance.” The trial court refused to entertain a continuance request, stating that it would not grant a continuance “in this type of a case.” This was incorrect. Continuances are available under 23 Pa.C.S.A. § 6107(c). Temporary orders under 23 Pa.C.S.A. § 6107(b) may be granted by the trial court during the continuance period “as it deems necessary.” 23 Pa.C.S.A. § 6107(c). Such a temporary order had already been entered by the trial court one week earlier when it scheduled the June 14th hearing. Wife concedes that Husband fully complied with the preliminary requirement for a continuance found in Pa.R.C.P. 216(D)(2), where it is said: “[n]o continuance shall be granted due to the absence from court of a witness duly subpoenaed, unless ... [ojn the day when the presence of such witness is required a prompt application is made for the attachment of such absent witness.”

After the court had denied Husband’s request for a continuance, Husband attempted to introduce an excerpt from the police report made after investigation of the incident giving rise to the charge of abuse. The trial court disallowed the reading of an excerpt from the police report. The court reasoned that the report had not been authenticated as a business record. Under the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108, “[a] record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation.... ” 42 Pa.C.S.A. § 6108(b). No “custodian or other qualified witness” testified at the hearing about the police report, and Husband himself could not rectify this deficiency. The trial court, therefore, did not abuse its discretion in disallowing in evidence a portion of the police report.

Wife testified at the hearing that on or about May 15, 1994, “Jeffrey, my husband, grabbed me by my hair, drug me across the floor, kicked me in my chest and in my back” for a period of fifteen to twenty minutes. Husband denied that he had abused his wife physically in any way, but there was no disinterested testimony, and the trial court elected to accept and rely upon Wife’s version. This testimony, of course, was sufficient to support the order entered by the trial court. It is for the trial court to assess the credibility of the witnesses, and, if its findings are supported by competent evidence, a reviewing court is bound thereby. See: Commonwealth v. La, 433 Pa.Super. 432, 461, 640 A.2d 1336, 1351 (1994), citing Commonwealth v. Rochon, 398 Pa.Super. 494, 504, 581 A.2d 239, 244 (1990).

Appellant contends, however, that if Officer Ryan had testified, there would have been disinterested testimony by an investigating police officer, who was particularly concerned because of Wife’s apparent pregnancy, that there had been no physical abuse inflicted. The trial court foreclosed a full offer of proof by appellant when he moved for a continuance, but the record permits one to conclude that if the testimony of Officer Ryan had been available to the court, it would have confirmed the version of appellant-husband. Although this testimony, to be sure, was cumulative of that given by appellant-husband, under the circumstances of this case, the testimony was significant, if not crucial.

The general rule has been stated in 7 Std.Pa.Prac., Continuances and Mistrials, § 38.14, as follows:

It lies within the discretion of the trial court to determine, in the light of all the circumstances of each case, whether or not a case before it should be continued on the ground of absence of material witnesses. A continuance because of the absence of a witness will ordinarily be granted when it appears that the expected testimony is competent, material, and credible, and would probably affect the outcome of the trial, and that due diligence has been exercised to secure the witness for trial.

Here, the testimony of the absent witness was competent and material and may well have affected the outcome of the hearing. Moreover, the record is clear that appellant complied with the applicable Rules of Civil Procedure and in all respects exercised due diligence to secure the presence of the witness. Under all the circumstances, therefore, we are constrained to conclude that the trial court abused its discretion when it denied appellant’s motion for continuance. Indeed, to affirm the trial court’s ruling under the facts of this case is to vest in the court not discretion, reviewable by an appellate court, but absoluteness free of review.

Reversed and remanded for a new hearing. Jurisdiction is not retained.

      . This appeal does not include the trial court's finding of indirect contempt on September 1, 1994, based upon Husband's alleged violation of the June 14, 1994 order.


author: HUDOCK, Judge.

text:
    666 A.2d 1062
    COMMONWEALTH of Pennsylvania, Appellee, v. Wesley ASKEW, Appellant. Appeal of VICTIMS RESOURCE CENTER.
    Superior Court of Pennsylvania.
    Argued June 29, 1995.
    Filed Sept. 11, 1995.
    Reargument Denied Nov. 20, 1995.

      Joseph P. Giovannini, Jr., Kingston, for Victims Resource Center.
    Albert J. Flora, Jr., Wilkes-Barre, for Wesley Askew.
    Michael G. Nast, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed after Appellant was adjudicated guilty of statutory rape, involuntary deviate sexual intercourse, aggravated indecent assault, and corruption of minors. Timely filed post-trial motions were denied by the trial court and Appellant was sentenced to a term of imprisonment for five to ten years plus a consecutive term of five years special probation. We affirm Appellant’s judgment of sentence.

This case also involves the appeal of the Victims Resource Center (VRC) from the trial court’s order which directed the rape counseling center to turn over the victim’s records. After the jury found Appellant guilty of the various sexual offenses he filed a motion to preserve physical evidence requesting the court to preserve the victim’s records pending appellate review. After a hearing on this issue, the trial court granted Appellant’s motion and directed that VRC surrender its records to the court for impoundment. On April 21, 1994, VRC filed an application to the court for supersedeas pending appeal. The court agreed to issue a stay until VRC filed an appeal to this Court. The court further directed VRC to secure and safely keep all files and records pertaining to this case pending appellate review. VRC then filed a timely appeal from this order. Because we affirm Appellant’s judgment of sentence, we find VRC’s issue raised on appeal moot.

When viewed in the light most favorable to the Commonwealth, the record reveals the following facts. On July 13, 1993, J.P., a nine-year-old mildly retarded girl, revealed to her mother, D.P., that Appellant sexually molested her since May of 1993 when he moved into their residence in Hanover Township, Pennsylvania. The victim explained that Appellant repeatedly entered her bedroom at night and engaged in oral and vaginal sex. The victim explained that on many occasions Appellant penetrated her vagina with his finger, penis and mouth and also forced her to perform oral sex on him. The victim told the police that Appellant threatened that he would slap her if she ever told anyone what he did.

Dr. Thomas Novinger, a pediatrician who examined the victim on July 14, 1993, testified that in his expert medical opinion the victim was “probably sexually molested.” He also opined that the victim’s diagnosis was consistent with her allegations of sexual abuse.

D.P. corroborated the victim’s testimony and explained that she was suspicious of the relationship between Appellant and her daughter. D.P. revealed two out-of-court statements made by the victim where she accused Appellant of sexually molesting her. Specifically, the victim told her mother that Appellant “touched her boobs and pussy” and “put his dick in her mouth.”

Detective Lieutenant Daniel Yursha, an investigator for the Luzerne County District Attorney’s office, testified that in an interview on July 14, 1993, Appellant confessed that he engaged in sexual acts with the victim on repeated occasions between May 18, 1993 and June 29, 1993. Appellant did not admit that he raped the victim. After the police advised Appellant of his Miranda rights, he executed a written waiver acknowledging that he understood his rights to an attorney and to remain silent. Detective Yursha transcribed the confession into a written statement which he re-read for Appellant. Appellant acknowledged that the statement was truthful, initialed every page and signed the statement at the end.

Robert Deritis, an inmate at the Luzerne County Correctional Facility with Appellant, testified that Appellant confessed to the offenses charged. Appellant told Deritis that he was in love with the victim and that he recognized that he made a mistake by confessing to the police. Appellant threatened that the victim “owed him” for revealing what he did and that if he was released on bail he would stick his penis in every hole in her body. James Edwards, who worked at the Luzerne County Correctional Facility as a correctional officer, testified that he overheard Appellant making these statements to Deritis.

David Lewis, a police officer for Hanover Township who transported Appellant from his preliminary hearing to the Luzerne Correctional Facility, testified that he overheard Appellant state, “So what if I did it. She enjoyed it.” Lewis reported what he heard to his supervising officer and executed a supplemental police report detailing the incident.

Based on this evidence, the jury found Appellant guilty of all charges. Appellant now raises ten issues challenging his judgment of sentence.

In his first question presented Appellant argues that the trial court erred in ruling that the victim’s records with VRC were confidential and absolutely protected by the sexual assault counselor privilege, 42 Pa.C.S.A. section 5945.1. In a pre-trial motion Appellant sought to compel VRC to produce the victim’s records which allegedly contained exculpatory statements made by the victim. The Commonwealth and VRC objected to the disclosure of the, victim’s records. On March 7, 1994, the trial court conducted a pre-trial hearing on Appellant’s motion to compel. After hearing testimony from the victim’s rape crisis counselor, Paulette Albosta, the court denied Appellant’s motion to compel.

Prior to jury selection Appellant renewed his motion to compel. Appellant claimed that Albosta revealed confidential information to the Commonwealth’s medical expert, Dr. Thomas Novinger, who then based his diagnosis on such information. Appellant claimed that by disclosing this information to Dr. Novinger, the confidential information became available to the Commonwealth, thus constituting a waiver of the privilege. The Commonwealth claimed that it had not obtained any records from VRC and had not learned of any confidential communication between the victim and her rape counselor. After hearing argument from both parties, the trial court denied Appellant’s motion to compel. On appeal, Appellant claims that this ruling was in error since it denied him the constitutional right of cross-examination, confrontation, and compulsory process for obtaining witnesses. Appellant contends that he had a right to obtain the VRC records since they might contain exculpatory information.

“Information which is protected by an absolute statutory privilege is not subject to disclosure and denial of access to a criminal defendant is required.” Commonwealth v. Eck, 413 Pa.Super. 538, 544, 605 A.2d 1248, 1252 (1992). The sexual assault counselor privilege, which was enacted on December 17, 1990, provides in pertinent part:

(b) Privilege.—
(1) No 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.
(2) No coparticipant who is present during counseling may disclose a victim’s confidential communication made during the counseling session nor consent to be examined in any civil or criminal proceeding without the written consent of the victim.

42 Pa.C.S.A. § 5945.1(b). “Confidential communication” is defined as follows:

All information, oral or written, transmitted between a victim of sexual assault and a sexual assault counselor in the course of their relationship, including, but not limited to, any advice, reports, statistical data, memoranda, working papers, records or the like, given or made during that relationship.

42 Pa.C.S.A. § 5945.1(a).

The statutory sexual assault counselor privilege “prevents sexual assault counselors from disclosing confidential communications made to them by the victims of sex-related crimes.” Commonwealth v. Gibbs, 434 Pa.Super. 280, 284, 642 A.2d 1132, 1134 (1994). This privilege is absolute and applies to oral communication as well as written records created during the course of the confidential relationship. Id. The privilege prohibits the revelation of confidential communication obtained during counseling to both the Commonwealth and to the defendant. Id., 642 A.2d at 1135. Ordinarily, “a criminal defendant’s confrontation and compulsory process rights under the Pennsylvania Constitution must yield to the privilege created by 42 Pa.C.S.A. § 5945.1. The rationale underlying this conclusion is that the legislature, by enacting that provision, has acknowledged the significance of the interest which it addresses and decided to afford that interest protection.” Id. (citations omitted). However, if the Commonwealth has obtained access to information pertaining to the sexual assault counseling which it seeks to shield from the defense, the statutory privilege is inapplicable. Commonwealth v. Davis, 437 Pa.Super. 471, 486-88, 650 A.2d 452, 460 (1994).

At the pre-trial hearing Appellant stipulated that VKC is a rape crisis center as defined in 42 Pa.C.S.A. section 5945.1(a) and that Ms. Albosta is a rape crisis sexual assault counselor. However, Appellant claims that the victim waived her absolute privilege when her mother signed consent forms authorizing Albosta to disclose information obtained during counseling to the police. Appellant also contends that because Albosta disclosed statements made by the victim during • counseling sessions to Dr. Novinger, the victim waived her privilege.

We do not find that the victim waived her statutory privilege when her mother allowed Albosta to reveal information to the police. As a counselor, Albosta has a statutory duty to reveal allegations of child abuse to the police. The Child Protective Services Act, found at 23 Pa.C.S.A. section 6311 et seq., provides in pertinent part:

Persons who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child.

23 Pa.C.S.A. § 6311(a). The statute also provides:

Except with respect to confidential communications made to an ordained member of the clergy ... the privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.

Id. Albosta complied with her statutory duty to report suspected child abuse when she revealed the victim’s allegations to the Hanover Township police.

We also do not find that the victim waived her privilege when Albosta reported the victim’s allegations to Dr. Novinger. Section 6314 of the Child Protective Services Act authorizes a person required to report suspected child abuse to “cause to be performed ... medical tests on the child.” 23 Pa.C.S.A. § 6314. Thus, Albosta was authorized by this statute to advise Dr. Novinger of the allegations made by the victim.

Furthermore, Appellant’s counsel had the same “confidential” information as the Commonwealth. The information which Albosta revealed to Dr. Novinger for purposes of treatment was summarized in Dr. Novinger’s expert report which Appellant received prior to trial. Appellant was able to cross-examine Dr. Novinger on the information he obtained from Albosta. Neither Dr. Novinger nor the Commonwealth were permitted to discover any of the confidential information contained in the victim’s VRC file.

Appellant’s reliance on Commonwealth v. Davis, supra, is misplaced. In that case, the appellant was convicted of involuntary deviate sexual intercourse, corruption of a minor and endangering the welfare of a child. On appeal, the appellant alleged, inter alia, that the trial court erred by refusing to permit the defense to review and introduce into evidence therapy session records made by the victim’s family counselor. The appellant alleged that access to the victim’s records with the family therapy counselor was necessary because the records were believed to contain the clinical observation that the victim was a “pathological liar.” Davis, 650 A.2d at 458. The appellant claimed that the records would corroborate his assertion that the victim fabricated the allegations of sexual abuse. The victim consented to have the counselor testify as a Commonwealth witness and to reveal statements the victim made which were contained in the family counseling records. At trial the counselor testified regarding prior consistent statements of the victim describing the appellant’s sexual abuse. Under these circumstances, this Court held, “any privilege protecting the victim’s family therapy counseling records was waived by the victim and his family when they permitted the Commonwealth to have access to the same records which they sought to shield from the defense.” Id. at 460. This Court explained, “where the Commonwealth calls the sexual assault counselor as a witness at trial, in breach of the privilege, the defendant’s rights to confrontation and compulsory process will have been violated by denial of access to the victim’s sexual assault counseling records.” Id.

In the present case, the victim did not provide the Commonwealth with any confidential information contained in her counseling records and the rape counselor did not testify at trial on behalf of the Commonwealth. Therefore, the victim did not waive the statutory privilege as the victim did in Davis. Accordingly, we reject Appellant’s assertion that he should have been permitted to discover the victim’s records kept by VRC.

Appellant makes nine other arguments which we discuss in a supplemental unpublished memorandum filed contemporaneously with this opinion. Since we find no merit to any of his claims, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. §§ 3122, 3123(5), 3125(6), and 6301, respectively.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).