author: CERCONE, Judge: BECK, Judge,

text:
    560 A.2d 816
    Joanne M. STAUFFER, Appellant, v. John H. EBERSOLE, M.D., Martha Wagner and Lancaster General Hospital.
    Superior Court of Pennsylvania.
    Argued March 3, 1988.
    Filed June 28, 1989.

      Terry S. Hyman, Harrisburg, for appellant.
    Richard P. Mislitski, Harrisburg, for appellees.
    Before BROSKY, BECK and CERCONE, JJ.
   CERCONE, Judge:

This action was brought by appellant Joanne Stauffer who seeks damages for personal injuries which resulted from excessive exposure to radiation following a radical mastectomy. By order of June 23, 1987, the lower court granted summary judgment in favor of appellee Dr. Ebersole finding that, as a matter of law, appellant’s suit was not timely filed as she knew or had reason to know of her injury more than two years before suit was commenced. The sole issue presented by this appeal is whether the lower court erred in finding that appellant’s claim was barred by the applicable statute of limitations.

Appellant initiated the instant suit in April, 1984, by writ of summons. A complaint was thereafter filed in which appellant alleged that in 1977, appellee had administered to her an overdose of radiation which years later resulted in severe injury to the nerves of her left arm and hand. Appellant further alleged that despite reasonable diligence, she did not discover the actual cause of her injury until May, 1982. Appellee filed a timely answer and new matter in which he raised the statute of limitations as a defense. After depositions were taken by each party, appellee filed a motion for summary judgment which was granted by the court on June 23, 1987. This appeal followed.

The facts of record are as follows. In January, 1975, appellant had a radical mastectomy performed on her left breast and two years later the cancer recurred. Following further surgery, appellant was sent to appellee for radiation therapy which was administered from late 1977 through early 1978. In late 1978 appellant began to experience numbness in the tips of some of the fingers on her left hand. At that time she spoke with her parent’s treating physician about the symptoms and he related that they possibly were caused by scar tissue. However, the physician, Dr. Smith, did not correlate the scar tissue to appellant’s radiation treatment. Appellant’s cancer also occurred in her right breast in 1979 and when she was admitted for surgery, she complained of the numbness in her fingers to her doctor. However, no tests were conducted and no diagnosis was made.

By 1980 appellant’s numbness became acute, spreading from the tips of some of the fingers to her left hand and arm, accompanied by severe pain. Appellant sought the treatment of Dr. Medinger who conducted a battery of tests and in 1982 determined that the symptoms were caused by calcium deposits (fibrosis) forming in appellant’s neck which pressed on the nerve endings leading to her left arm and hand. Dr. Medinger determined that the calcium deposits were the result of excessive exposure to the radiation administered to appellant in 1977. Appellant has now lost the use of her left and dominant hand and arm.

An action to recover damages for personal injuries is governed by a two-year statute of limitations. 42 Pa.C.S.A. § 5524(2). Thus, a plaintiff must commence an action within two years from the time he or she suffers an injury. However, when an injury is not readily discernible, the discovery rule, as discussed below, applies. Where this judicial doctrine is applied, the statute of limitations is tolled and does not begin to run until the plaintiff has discovered, or in the exercise of reasonable diligence should have discovered, the injury. See Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986), allocatur den. 515 Pa. 600, 528 A.2d 957 (1987).

The discovery rule exception arises from the inability of the plaintiff, despite the exercise of diligence, to determine the existence of the injury or its cause. See Larthey by Larthey v. Bland, 367 Pa.Super. 67, 532 A.2d 456 (1987), allocatur den. sub nom. Larthey v. Bland, 518 Pa. 656, 544 A.2d 1343 (1988). The statute of limitations begins to run when a plaintiff knows, or reasonably should know that an injury has occurred and that the injury was caused by another party’s conduct. Citsay v. Reich, 380 Pa.Super. 366, 370, 551 A.2d 1096, 1098 (1988); Larthey, supra; Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). See also Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989) (en banc) (explicating history and current status of discovery rule in Pennsylvania).

Appellant maintains that the lower court’s grant of summary judgment was unreasonable in her case because she was not expected, under the discovery rule, to bring suit when her symptoms first appeared but rather when her injury was diagnosed. In support of this allegation, appellant cites Trieschock v. Owens Corning Fiberglas Company, 354 Pa.Super. 263, 511 A.2d 863 (1986), allocatur den., 514 Pa. 619, 521 A.2d 933 (1987). In that case, as part of a routine medical screening conducted by his employer, appellant was told by the company doctor that he was suspected of having asbestosis in March, 1982. On April 8, 1982, the diagnosis was confirmed by a specialist and appellant filed suit on April 6, 1984. If the statutory two year period period started to run from the diagnosis of the first physician in March, 1982, even though based on mere suspicion, appellant’s suit was not timely filed. If the statute of limitations began with notification by the specialist of the cause of appellant’s symptoms, the case was initiated in time. The Trieschock court opined:

As a general principle, the statute of limitations begins to run in a tort case when the cause of action accrues. When the cause of action accrues is, of course, quite apparent when a collision forms the grounds for the suit. But when the injury is, as here, due to a “creeping disease,” developing for years without symptoms after the exposure to the causative agents, that date is simply not ascertainable____ The question before us then is whether the fact that appellant was told that asbestos was suspected would establish, as a matter of law, that appellant knew, or should have known that he had asbestosis, an “injury.”

354 Pa.Super. at 265-66, 511 A.2d at 865 (citations omitted).

A plaintiff in a creeping disease case should not be required to have greater knowledge than his physicians about his medical condition. If those physicians are not reasonably certain as to his diagnosis, then he certainly cannot be bound to have the knowledge necessary to start the statute of limitations running.

354 Pa.Super. at 268, 511 A.2d at 866. While Trieschock concerns the application of the discovery rule to a “creeping disease,” we find it to be instructive to this case because appellant’s injury began with minor symptoms which became progressively worse over a period of time.

The lower court found that although appellant’s testimony was confusing, vague, and not responsive to the questions asked, it revealed that she knew of her injury in 1979 when she questioned Dr. Smith, her parent’s physician, about the numbness in her fingers and he told her that her problems were caused by scar tissue. The question before us then is whether the fact that, without benefit of a medical workup, appellant was told her problems possibly were caused by scar tissue, established as a matter of law that appellant knew or should have known she had an injury caused by appellee.

A finding that appellant knew or reasonably should have known the cause of her symptoms when she spoke to Dr. Smith would lead to a result inconsistent with that in Trieschock. Dr. Smith’s diagnosis was done without the benefit of exact medical knowledge. Dr. Smith neither performed tests nor examined the appellant. His opinion was based on his knowledge of appellant’s medical history and what she described as symptoms. Thus, Dr. Smith’s opinion was a mere suspicion absent any testing and did not allude to a proximate cause of appellant’s symptoms. To put upon appellant the duty of knowing the nature of her ailment and its relation to her prior treatment before it is ascertained with a degree of certainty by the medical profession is a great burden to impose upon her. The information conveyed to appellant by Dr. Smith may well have been too imprecise to start the running of the statute of limitations against a lay person whose knowledge certainly is not as expert as that of a member of the medical profession. Our inquiry, however, does not end here. While Dr. Smith’s speculative diagnosis may have been insufficient to start the running of the statute of limitations, it activated a duty on appellant’s part to determine with due diligence whether the radiation treatments did in fact cause her injury. “The absence of such a duty would mean that a potential plaintiff with a tentative diagnosis could wait indefinitely before acting to confirm it.” Trieschock, 354 Pa.Super. at 268, 511 A.2d at 866.

Dr. Smith gave his tentative diagnosis to appellant regarding the numbness in her fingers in 1979. Shortly thereafter appellant underwent surgery for the removal of her right breast. While giving information to her doctor in relation to that surgery, appellant told him of the numbness she experienced in fingers of her left hand. Dr. Patterson noted her symptoms on his records but conducted no tests to determine their cause. Subsequent to cancer surgery, appellant was in need of further treatment. It was suggested by some doctors that she undergo chemotherapy while others recommended radiation. Because she was confused as to which treatment would be better for her, appellant consulted Dr. Medinger in 1980. By this time the numbness in appellant’s hand was acute and accompanied by pain. Dr. Medinger did a complete workup on appellant and referred her to several specialists. In 1982 appellant’s symptoms were diagnosed as fibrosis or calcium deposits in her neck which press on the nerves leading to her left arm and hand. It wasn't until then that medical experts determined appellant’s injuries were caused by overexposure to radiation appellant had received while under treatment by Dr. Ebersole in 1977.

However, there are sufficient factual circumstances presented to us in this case which give rise to the question of whether appellant exercised due diligence in finding out the cause of the numbness in her hand. The information that she received from Dr. Smith concerning this physical condition in 1979 and her complaints with regard to this same physical condition to the doctors who performed cancer surgery on her, raised the issue of the presence or absence of due diligence on the appellant’s part in determining the cause of her hand problem. Thus, whether plaintiff’s lawsuit was brought within the statute of limitations is a question for the jury to determine based on the facts as developed at trial. Viewing the evidence in a light most favorable to appellant as the non-moving party, and drawing all reasonable inferences in her favor, we conclude that summary judgment was improperly granted. Order of the lower court granting appellee’s motion for summary judgment reversed and case remanded for further proceedings in accordance with the foregoing. Jurisdiction relinquished.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent. Although I agree with the majority’s general statement of the discovery rule and its origins, I disagree with its application of the rule to this case. I would affirm the trial court’s grant of summary judgment for defendant on the ground that the plaintiff’s claim is time barred.

Appellant Stauffer brought this medical malpractice action for personal injuries which allegedly resulted when appellee Dr. Ebersole negligently exposed her to excessive radiation during radiation treatments following a masectomy in 1977. Beginning in 1978, appellant experienced numbness in her left hand caused by the radiation. The condition gradually worsened over time, becoming much worse by 1982. In May 1982, appellant was definitively diagnosed as suffering from the results of excessive radiation, causing paralysis and pain in the left arm and hand. She instituted this lawsuit in April 1984.

The trial court granted summary judgment in favor of Dr. Ebersole, holding that Ms. Stauffer knew or should have known that she was injured and that Dr. Ebersole’s actions were the cause of her injury more than two years prior to when she instituted suit. The trial court reached this conclusion based on its review of the following evidence.

Although Ms. Stauffer’s testimony is somewhat confused, she clearly stated that as early as 1978, she knew that Dr. Ebersole might have done something wrong that had resulted in her symptoms. In her appellate brief, Ms. Stauffer again admits that she had a suspicion of wrongdoing by Dr. Ebersole at this early date. She undeniably knew that she had the symptoms, albeit minor, in 1978.

Moreover, the evidence reveals that Ms. Stauffer was concerned about these minor symptoms from the time they began through mid-1982. She repeatedly informed her various doctors of them. One of these doctors, Dr. Patterson, produced a note he had made of a conversation with Ms. Stauffer in 1979. The note indicates that Ms. Stauffer told him of her numbness and she attributed it to her radiation therapy with Dr. Ebersole. Similarly, another doctor with whom she consulted, Dr. Smith, told Ms. Stauffer that her symptoms resulted from scar tissue, although it appears that he did not tell her that the scar tissue resulted from excessive radiation. In any event, by 1980 Ms. Stauffer consulted with Dr. Medinger, who finally diagnosed her in 1982. Dr. Medinger’s records indicate that he attributed her hand problems to the radiation as early as June 1980, but he did not recall telling Ms. Stauffer that fact until the final diagnosis.

The foregoing demonstrates that well before mid-1982, and perhaps as early as 1978 or 1979, Ms. Stauffer knew both of her injury and its possible cause. Although her symptoms were minor, she had them and had reason to suspect that her radiation treatment was the cause.

Ms. Stauffer argues that since her symptoms were initially so insignificant that her doctors did not order the tests necessary to make a final diagnosis, she should not be held to have known of her injury and its cause until her symptoms became much more severe and were actually diagnosed in 1982. In support of this argument, Ms. Stauffer relies on Trieschock v. Owens Corning Fiberglas Co., 354 Pa.Super. 263, 511 A.2d 863 (1987), allo. den., 514 Pa. 617 and 619, 521 A.2d 932-3 (1988), which concerns the application of the discovery rule to a “creeping disease”, namely, asbestosis. In Trieschock, plaintiff was unaware of his asbestosis symptoms. After a routine medical screening at work, the company doctor telephoned Trieschock and told him that asbestosis was suspected. Within one month, plaintiff saw a specialist and was diagnosed as having asbestosis. Plaintiff brought suit within two years of the diagnosis, but more than two years from the initial screening. Since the plaintiff was suffering from a creeping disease without any symptoms apparent to a layperson, and since the company doctor had merely expressed a suspicion of asbestosis, this court held that the discovery rule tolled the statute of limitations until the actual diagnosis and that the action was timely. Since Trieschock had no independent means of learning of his injury, this court reasoned that he should not be required to have greater knowledge of his medical condition that his physicians had.

The instant case is clearly distinguishable from Tries-chock. Whereas Trieschock was unaware of any symptoms related to his injury and, therefore, dependent on his doctors to learn about the very existence of the injury, Stauffer experienced initial symptoms soon after the exposure to radiation. Moreover, as noted above, she admitted to knowing in 1978 that Dr. Ebersole may well have done something wrong in connection with her radiation treatment.

I, therefore, conclude that the evidence demonstrates as a matter of law that Stauffer knew or reasonably should have known that the numbness in her left hand was caused by radiation therapy more than two years before she instituted suit. Even if she only harbored suspicions of malpractice before the definitive diagnosis was made, it is clear that she experienced symptoms of the injury and that the cause was knowable through the exercise of due diligence long before mid-1982. The law requires that a plaintiff make prudent legal inquiry as to the cause of her injury. Bickford v. Joson, 368 Pa.Super. 211, 533 A.2d 1029 (1987), allo, den., 518 Pa. 647, 544 A.2d 959 (1988). See also Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989) (en banc). This Ms. Stauffer failed to do.

Any other conclusion would significantly alter the established discovery rule test by shifting the focus from what the victim knew or should have known to what the doctors reasonably should have told the victim. The discovery rule properly focusses on the victim and arises “from the inability of the injured, despite the exercise of diligence, to know of the injury or its cause.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). Unless the plaintiff can demonstrate that her doctor, through fraud or concealment, caused her not to inquire further into her condition or its cause, the plaintiff is under a duty to exercise diligence in ascertaining the pertinent facts. See Levenson v. Souser, supra (citing Molineux v. Reed, 516 Pa. 398, 532 A.2d 792 (1987)). Since Ms. Stauffer does not allege any fraud or concealment by her treating physicians, she had no reason to relax her vigilance as to her condition or its cause. A plaintiffs duty of prudent inquiry cannot automatically be held in abeyance until a physician determines that it is appropriate to make a full medical inquiry and final diagnosis.

Equally dangerous would be the adoption of Ms. Stauffer’s contention that we should not hold that she knew or should have known of her injury before 1982 because her initial symptoms were so minor. To permit such fine line drawing based upon the severity of the injury would create a potential for significant abuse of the discovery rule. It would require medical testimony to ascertain at what point an injury was sufficiently serious to trigger the running of the limitations period, thus opening the door to close medical distinctions not always pertinent to what the plaintiff legally knew or should have known concerning her own condition.

Since I conclude that there remains no genuine issue of material fact as to when Ms. Stauffer discovered or should have discovered her injury or its cause, and that date was clearly more than two years before she instituted suit, I would affirm the entry of summary judgment for defendant.

      . Appellant discontinued suit as to the other named defendants.

      . In reviewing a grant of summary judgment, the appellate court must view the evidence favorable to the non-moving party, the appellant. Washington Federal Savings & Loan Assn. v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986). Analyzing the record facts favorable to the appellant, I find the trial court’s rendition of facts to be substantially in accord with the record.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: KELLY, Judge,

license: Public Domain

text:
    561 A.2d 5
    COMMONWEALTH of Pennsylvania v. Neil Franklin DUNKLE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1988.
    Filed June 13, 1989.

      Ronald C. Travis, Williamsport, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

This is a direct appeal from the judgment of sentence following appellant’s conviction for indecent assault, corruption of minors, and criminal attempt to commit involuntary deviate sexual intercourse. For the reasons stated below, we remand for a new trial.

In April of 1986, appellant was charged with rape, indecent assault, corruption of minors, and criminal attempt to commit involuntary deviate sexual intercourse. A jury trial commenced on March 23, 1987, and concluded on March 27, 1987. Appellant was found guilty of all of the charges except rape. Post-trial motions were filed and denied. Thereafter, appellant was sentenced to not less than two years and not more than four years on the criminal attempt to commit involuntary deviate sexual intercourse charge, with a concurrent sentence of not less than eighteen months and not more than three years on the corruption of minors charge. Sentence was reduced to judgment, and appellant filed a timely notice of appeal to the Superior Court on December 30, 1987.

The charges leveled against appellant arose out of an investigation by the state police following a report by appellant’s stepdaughter that in April of 1983, appellant entered the bathroom while the victim was taking a shower and, after forcing her to the floor, sexually assaulted her, forced her to engage in oral intercourse, and raped her.

On appeal to this Court, appellant raises the following seven issues: (1) whether evidence of defendant’s prior misconduct was admissible at trial; (2) whether expert testimony on child abuse characteristics was admissible at trial; (3) whether non-disclosure in discovery of a calendar/diary by the Commonwealth precluded its use at trial; (4) whether defense counsel was entitled to review psychiatric records of the victim; (5) whether questioning on re-direct which exceeded scope of cross-examination was permissible; (6) whether defense counsel should have been permitted to introduce evidence of a similar incident involving the victim; and (7) whether evidence that victim bled during subsequent act of sexual intercourse was admissible.

Appellant’s first allegation of error concerns the admission at trial of evidence concerning appellant’s prior sexual misconduct towards the victim. Specifically, appellant contends that the trial court erred in permitting testimony that prior to the assault on the victim, the appellant engaged in voyeurism while the victim took showers and on one prior occasion had attempted to fondle her breasts while the victim pretended to be asleep.

Evidence of other criminal conduct of an accused is generally inadmissible at trial except in certain limited circumstances. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, cert. denied, Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978). One such limited circumstance is a prosecution for incest. Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895). The Bell Court held that evidence of a prior illicit relationship between the parties is admissible if “it is one of a series of acts indicating continuousness of sexual intercourse.” 166 Pa. at 412, 31 A. at 123 (emphasis added). Bell set a precedent to which our Court has steadfastly adhered. See e.g., Commonwealth v. McClucas, 357 Pa.Super. 449, 516 A.2d 68 (1986) (trial court did not err in admitting evidence of defendant’s sexual abuse of daughter over five-year period); Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985) (trial court did not err in admitting testimony that defendant, the victim’s uncle, had admitted that he “used to” perform the illicit sexual act upon the victim when the victim was younger); Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984), case remanded, 509 Pa. 357, 502 A.2d 148, cert. granted, Pennsylvania v. Ritchie, 476 U.S. 1139, 106 S.Ct. 2244, 90 L.Ed.2d 690 aff'd in part rev’d in part, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (trial court did not err in permitting defendant’s daughter to testify that he had been molesting her three or four times a week for a period of four years); Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980) (trial court did not err in admitting testimony by defendant’s stepdaughter of a long and sordid pattern of sexual abuse; the victim was forced to submit to stepfather’s sexual advances from the time when she was a third grader to the time she was in tenth grade and she left home); Commonwealth v. Buser, 277 Pa.Super. 451, 419 A.2d 1233 (1980) (trial court did not err in admitting evidence of defendant’s sexual abuse of his daughter beginning when she was eight or nine years of age and continuing to age thirteen); Commonwealth v. Leppard, 271 Pa. Super. 317, 413 A.2d 424 (1979) (trial court did not err in admitting evidence of defendant’s continuing sexual assaults on his daughter over a four-year period).

Instantly, the victim testified that she suspected appellant was spying on her while she was in the shower because he routinely retired to his bedroom during the times she showered. She testified that she, along with her sister, discovered that by removing a panel in the bedroom closet, one could see into the bathroom. Finally she related an incident where her mother discovered appellant on his knees in the bedroom closet while the victim was showering. The only other incident of misconduct which the victim testified to was the occasion where appellant attempted to fondle her breasts. Despite the morally repugnant nature of these alleged acts and the crimes for which appellant has been convicted, we are constrained to find that testimony regarding these acts was improperly admitted for the reason that the isolated occurrences of prior misconduct testified to by the victim simply do not constitute “a series of acts indicating continuousness of sexual intercourse.” Bell, supra. By restricting the admissibility of evidence pertaining to prior misconduct to the above, it is apparent that the Bell Court was guarding against admission of evidence of isolated acts. See, Commonwealth v. Rodriguez, supra n. 4. See also, Commonwealth v. Campbell, 342 Pa.Super. 438, 493 A.2d 101 (1985), wherein our Court stated:

[O]ur sedulous review of the law in this jurisdiction, dealing with incest, statutory rape and indecent assault, has failed to unearth one decision condoning the admission of a single, prior accounting of a sexual assault (so distant in time as the one at bar) to buttress a prosecutrix’s complaint of a subsequent sexual assault charged against the same assailant where there is no evidence of a continuous course of conduct linking the incidents of molestation.

Campbell, 342 Pa.Super. at 444, 493 A.2d at 105 (emphasis added). It was, therefore, improper for the trial court to permit testimony of appellant’s prior misconduct.

Appellant’s next allegation of error is that the trial court improperly admitted the expert testimony of Susan Shade, a Child Protective Service supervisor for the Department of Children and Youth. Ms. Shade’s testimony concerned the dynamics of interfamily sexual abuse and behavior patterns of the child-victim. Pursuant to current case law, we are constrained to agree.

The question of a witness’s credibility is reserved exclusively for the jury. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). As such, expert testimony which serves to bolster the veracity of a child sexual abuse victim impermissibly infringes upon the province of the jury. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). Accordingly, this Court must ascertain the purpose for which Ms. Shades’ testimony was offered.

In Seese, supra, the Pennsylvania Supreme Court determined that the expert testimony in question consisted of expert opinion regarding the veracity of the victim. In part, the expert had testified that:

It is very unusual that a child would lie about sexual abuse ... [P]repubertal children usually do not lie about matters of sexual abuse no matter how chaotic or uncomfortable their home situation is ...

Seese, 512 Pa. at 441-442, 517 A.2d at 921.

Upon determining that this testimony was offered to sustain the credibility of the victim, the Court determined that it was inadmissible. In doing so, the Court stated that:

Such testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called “expert” assessment of the truthfulness of the class of people of which the particular witness is a member.

Seese, 512 Pa. at 443-44, 517 A.2d at 922. As such, the primary concern with regard to this type of testimony is that it has the potential to invade upon the province of the jury and incorrectly influence their decision as to the credibility of a witness.

Instantly, upon review of the record, it is apparent that the victim questionably delayed in reporting the incident and failed to recall certain details of the incident. As such, the credibility of the victim was somewhat shaky. In response, the Commonwealth offered the expert testimony of Ms. Shade to explain: (1) a victim’s delay in reporting an offense; (2) a victim’s inability to recall exact dates and times; and (3) the victim’s behavior as the result of the offense. In offering this testimony, the Commonwealth clearly hoped to legitimize the victim’s lengthy delay in reporting the incident and her failure to recall certain details of the incident, thereby allowing the jury to accept her version of the facts. In essence, this only serves to bolster the credibility of the victim. Since, however, an expert’s testimony may not be utilized solely to enhance the veracity of a witness, we find that the trial court erred in admitting the expert testimony of Susan Shade.

Appellant’s next assignment of error concerns the handling by the trial court of records pertaining to the victim while she was undergoing counselling at a private psychiatric center. Prior to trial, appellant filed an omnibus pre-trial motion requesting the court to order the release of records from the Lycoming County Children and Youth Services pertaining to the incidents at issue in this case. After consideration of this motion, the trial court ordered the Commonwealth, which was in possession of these records, to produce the records for an in camera review for any material that was properly discoverable. After such review, the trial court provided appellant with various statements made by the victim and instructed appellant that if he believed the records contained other discoverable material and presented a colorable argument that it existed and was discoverable, the trial court would release the information.

The trial court’s ruling and handling of this matter was based on the case of Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). In Ritchie, the respondent, charged with rape, involuntary deviate sexual intercourse, incest and corruption of a minor, sought access to CYS files which he alleged contained exculpatory evidence. The trial judge refused to order CYS to disclose the files. On appeal to the Superior Court, Ritchie claimed that failure to disclose the records violated the Confrontation Clause of the Sixth Amendment. The Superior Court agreed and remanded the case for further proceedings directing, however, that the trial judge was to examine the confidential material in camera and release only the verbatim statements made by the victim to the CYS counselor, who could then argue the materiality label to Ritchie’s lawyer. If the trial judge determined that the lack of information was prejudicial, Ritchie would be entitled to a new trial. Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984).

On the state’s appeal, our Supreme Court agreed that the conviction should be vacated and the case remanded to determine whether a new trial should be granted. The Supreme Court, however, ordered that defense counsel was entitled to review the entire file for any useful evidence. Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985).

Upon review by the United States Supreme Court, the decision rendered by the Pennsylvania Supreme Court was affirmed to the extent that it ordered a remand for further proceedings. The United States Supreme Court stated:

Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.

Ritchie, 480 U.S. at 58, 107 S.Ct. at 1002, 94 L.Ed.2d at 58.

Instantly, appellant contends that the trial court’s decision to review the records in camera and release relevant discoverable information was error for the following reasons: (1) Ritchie dealt with a situation where neither the prosecutor nor the defense had access to the file, whereas in the instant case the prosecutor had access to the full psychiatric record of the victim; and (2) the victim has waived confidentiality by releasing the records to the Commonwealth. As a result of the trial court’s alleged error, appellant contends he is entitled to a new trial or, in the alternative, a remand so that he may review the file in its entirety and argue that certain nondisclosed information was material and the lack thereof at trial prejudiced him. We find no merit to any of appellant’s arguments with respect to this issue.

We deal first with appellant’s argument that the prosecutor’s access to the file in the instant case distinguishes Ritchie. Initially, we note that simply because the Commonwealth is in possession of a file does not require that the defense have complete access to it.

A defendant is entitled to a court inspection of the Commonwealth’s investigatory files only when there exists at least some reason to believe the inspection would lead to the discovery of evidence helpful to the defense.

Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977).

Furthermore, we feel that the following passage of Pennsylvania v. Ritchie speaks to this issue:

A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth’s files. See United States v. Bagley, 473 U.S. [667] at 675, 87 L.Ed.2d 481, 105 S.Ct. [3375 at 3380 (1985)]. Although the eye of an advocate may be helpful to a defendant in ferreting out information, Dennis v. United States, 384 U.S. 855, 875, 16 L.Ed.2d 973, 86 S.Ct. 1840 [1851] (1966), this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information.

Ritchie, 480 U.S. at 59, 107 S.Ct. at 1003, 94 L.Ed.2d at 58-59.

Appellant’s next argument that the victim has waived confidentiality by releasing the records to the Commonwealth flies flagrantly in the face of the state’s undeniably paramount interest in confidentiality. We are surprised that appellant did not take this argument further and contend that the victim waived any right to confidentiality merely by seeking psychological counselling or by reporting the crime to the state police. Appellant appears to believe that the victim has no interest in seeing her abuser brought to justice. His unsubstantiated argument in this regard is offensive in its obvious disregard and insensitivity to the victims of child sexual abuse and the difficulty encountered by the Commonwealth in detecting and prosecuting the offender. Once again, Pennsylvania v. Ritchie offers a perspective on this issue:

To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth’s compelling interest in protecting its child abuse information. If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania’s efforts to uncover and treat abuse.

Ritchie, 480 U.S. at 60, 107 S.Ct. at 1003, 94 L.Ed.2d at 59 (emphasis added).

Finally, we must deal with appellant’s remaining contention that our Court, in construing Ritchie, upheld the statutory psychologist-client privilege vis-a-vis defense discovery of those records and used as a basis for that decision the fact that the prosecution did not have access to the confidential file. Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988). Appellant’s argument misstates our discussion and determination in Kyle. In Kyle our Court discussed Pennsylvania v. Ritchie, supra, as it pertained to a defendant’s rights under the Confrontation Clause of the Sixth Amendment. We also discussed the relation of the Due Process Clause of the Fourteenth Amendment to a defendant’s inability to obtain pretrial information. At issue in Kyle was the psychologist-client privilege protected by 42 Pa.C.S.A. § 5944. After a discussion of Ritchie, our Court concluded that a determination must be made as to whether a compelling public interest supported the psychologist-client privilege. Our Court then embarked on a lengthy analysis of the public policies underlying the privilege, in addition to the relevant cases in this and other jurisdictions, and concluded that the interests protected by the privilege are substantial. Weighing these interests against the interest of a defendant in disclosure of a victim’s file, we found the scale tilted in favor of the psychologist-client privilege. This was the linchpin of our decision in Kyle. We merely buttressed that decision by noting that the defense would not be placed at a disadvantage as the Commonwealth, likewise, did not have access to the file. To contend, as appellant does here, that our Court somehow in construing Ritchie found that a basis for upholding the psychologist-client privilege was the fact that neither the prosecution nor the defense had access to the file, is a severe misinterpretation and misrepresentation of the Kyle opinion.

Furthermore, it must not be forgotten that in the instant case appellant was not deprived of the benefit which information in a CYS file may have provided him. Upon review of the file by the trial court, the information deemed to be material to appellant’s defense was provided to him. Furthermore, had appellant been aware of specific information in the file, he was free to request it and argue its materiality. Additionally, the trial court was under a duty to disclose information which initially may have appeared immaterial but became important as the proceedings progressed. We note that the trial judge informed defense counsel that he would do exactly that in the instant case. (N.T. p. 256.) The trial court’s actions in this case afforded appellant all that he was entitled to under Pennsylvania v. Ritchie. There was no error committed by the trial court, and appellant’s attempts to distinguish Ritchie lack merit.

Appellant’s next allegation of error is that the trial court erred in permitting the Commonwealth to introduce evidence in the redirect examination of witness Fortins which went beyond the scope of cross-examination. The alleged error arose in the following context. Witness, Ms. Jean Fortins, was not questioned on direct examination regarding a conversation with appellant following his arrest concerning whether he committed the offenses. The witness also was not questioned on cross-examination regarding this matter. Testimony regarding this matter, however, was elicited during redirect examination. Defense counsel objected at trial and was overruled.

Appellant relies on Catina v. Maree, 498 Pa. 443, 447 A.2d 228 (1982), for the rule that one who calls a witness is required to elicit on direct examination all that is wished to be proved by that witness. While this may be the general rule, we note that the order in which testimony is admitted is within the discretion of the trial court, whose decision will not be reversed absent an abuse of discretion. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982); Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986) (citations omitted). Furthermore, the discretion of the trial judge to vary the order of proof is wide. A party may be permitted to bring out on redirect examination relevant evidence which inadvertently the party failed to bring out on direct. Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369 (1987), appeal denied, 517 Pa. 630, 539 A.2d 810 (1987). Finally, Catina v. Maree is contrary to the instant case in that the matters brought on redirect examination in Catina were matters which could not have been testified to on direct examination, specifically opinion evidence and hearsay testimony. For these reasons, we find that the trial judge did not err in making the above decision.

Appellant next contends that the trial court erred in not permitting the defense to cross-examine the victim concerning an alleged incident where another individual came into the bathroom while the victim was showering. The defense sought to introduce testimony on this point to show that the victim had confused the appellant with another individual.

The scope and manner of cross-examination are within the sound discretion of the trial judge, whose decisions will not be overturned absent an abuse of discretion. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). In determining the extent of cross-examination, the trial judge may consider whether matter is collateral and whether testimony is likely to confuse or mislead the jury. Commonwealth v. Hammond, 308 Pa.Super. 139, 454 A.2d 60 (1982); Commonwealth v. Brinton, 275 Pa.Super. 304, 418 A.2d 734 (1980). Appellant’s argument that the victim confused him with another individual who allegedly entered the bathroom while she was showering is speculative. At trial, defense counsel cross-examined the victim concerning the accuracy of her memory. This was sufficient to test her credibility on this issue. Speculative contentions, such as appellant sought to have introduced, would only have served to distract the jury from absorbing the substance of the victim’s testimony and determining her credibility. Appellant’s contention is therefore meritless.

For the reasons stated above, we vacate appellant’s conviction and remand for a new trial. Order vacated. Jurisdiction relinquished.

KELLY, Judge,

dissenting:

I respectfully dissent. Although I agree with the majority’s resolution of appellant’s fourth, fifth, sixth and seventh contentions, I disagree with its resolution of the first, second, and third contentions. I find no merit in the appeal, and would affirm judgment of sentence.

I. Issues of Agreement

I agree that defendant was not entitled to review privileged psychiatric records of the victim. The dictates of Pennsylvania v. Richie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), regarding defense access to such materials were complied with fully. I wholeheartedly agree with the majority’s rejection of appellant’s attempt to construe Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), appeal denied 518 Pa. 617, 541 A.2d 744 (1988), as limiting the privilege against disclosure to cases when the Commonwealth, as well as the defendant, has been denied full access to the file. I note that in such cases the Commonwealth stands in a relationship to the victim sufficiently analogous to the attorney/client relationship to warrant continuation of the patient/client privilege after disclosure of information covered by that privilege to the Commonwealth’s prosecuting attorney. Moreover, disclosure of such information to the Commonwealth attorney may be both necessary and appropriate to avoid questions opening the door to cross-examination regarding privileged matters at trial.

In the past, some defense counsel made a practice of smearing sexual assault victims with irrelevant innuendo and character assassination. Unlimited access to privileged psychiatric or counseling records would not only be invasive by itself, but would also provide ammunition for a renewal of such assaults. Today, fortunately, a more enlightened approach prevails, and defense counsel is only provided with such information when the trial court, upon in camera inspection, deems the material relevant to legitimate issues at trial. All other information remains, as it should be, privileged and confidential.

I also agree that the trial court did not abuse its discretion in permitting the Commonwealth to redirect Ms. Jean Fortins regarding a conversation the witness had with appellant, despite the fact that the redirect examination was outside the scope of the cross-examination of that witness. Such matters are within the sound discretion of the trial court. When, as here, neither bad faith nor prejudice is indicated by the variance in the order of the presentation of the evidence, the action of the trial court will be upheld. See Commonwealth v. Johnson, 355 Pa.Super. 123, 139-44, 512 A.2d 1242, 1251-52 (1986); accord Commonwealth v. King, 378 Pa.Super. 553, 549 A.2d 195 (1988).

Finally, I agree that the trial court did not abuse its discretion in limiting appellant’s cross-examination regarding an incident when another person allegedly entered the bathroom when the victim was in the shower, or in refusing to admit blood stained panties in support of appellant’s claim that he could not have raped the victim because the panties established that she was still a virgin after the time that she was alleged to have been raped. Such matters are left to the sound discretion of the trial court. See Commonwealth v. Grove, 363 Pa.Super. 328, 346, 526 A.2d 369, 378 (1987). The evidence here vaguely, if at all, supported the inferences urged by appellant and presented a substantial risk of confusion and distraction on wholly collateral issues. Hence, I find no abuse of discretion in the decision to exclude the evidence.

Here ends my agreement with the majority.

II. Issues of Disagreement

First, I note that with respect to the discovery violation which the majority finds it unnecessary to address, I would find that the trial court did not abuse its discretion in permitting the evidence to be used. Appellant has failed to demonstrate any actual prejudice arising from the discovery violation which could reasonably be said to have compelled the trial court to exclude the evidence. Nor is their any evidence that the violation arose from bad faith conduct on the part of the Commonwealth. See Commonwealth v. Pickford, 370 Pa.Super. 444, 448-51, 536 A.2d 1348, 1350-51 (1987).

I cannot agree that the admission of evidence of other criminal acts by appellant was an abuse of discretion in this case. The challenged evidence taken together, and in the context of the charges presented in this case, plainly gave rise to a reasonable inference that appellant was engaged in a continuous and gradually escalating course of sexually exploitive and abusive conduct toward the victim.

Specifically, I find that the evidence regarding the incidents which the majority finds to be inadmissible must be considered together with the victim’s assertion that appellant regularly retired to his bedroom when she was in the shower, that there was a removable panel which allowed him to voyeuristically view the victim from his bedroom closet, and that he was caught in the act of voyeuristically viewing her from that closet on one occasion. Rather than being isolated and individual, the incidents formed part of an all too recognizable pattern, common to intrafamilial sexual abuse cases. Indeed, I would have considered the exclusion of such evidence an abuse of discretion. See Commonwealth v. Thek, 376 Pa.Super. 390, 402 n. 9, 546 A.2d 83, 89 n. 9 (1988); Commonwealth v. Allem, 367 Pa.Super. 173, 182 n. 3, 532 A.2d 845, 849 n. 3 (1987); see also Myers, Uncharged Misconduct Evidence in Child Sexual Abuse Litigation, -— Utah L.Rev. 479, 479-568 (1988).

I also disagree with Judge Olzewski’s suggestion that the expert testimony in this case was impermissibly general. Evidence presented at trial established that there was a lengthy delay in reporting the incident, the victim omitted various details of the incident when she reported it, and there were various observable behavioral changes in the victim following the date the incident occurred. In its proffer with respect to the expert testimony, the Commonwealth specifically indicated that the evidence to be presented was intended to assist the jury in determining the relevance of and weight to give those facts in their deliberations. The fact that the expert did not, herself, link her general expert testimony to the evidence presented, arose from the trial court’s express admonition to her that she not do so. The reason for the trial court’s admonition was its solicitousness for appellant’s interest in not having the jury confused or overawed by the expert testimony. Instead, the link between the facts presented and the expert’s relevant explanation of various normative responses and psycho-social dynamics in child sexual abuse cases was left to the arguments of counsel and the deliberations of the jury.

Concededly, in the recent past, our Supreme Court has expressed concern regarding the potential for expert overreaching and usurpation of the jury’s function, as well as juror misunderstanding of expert testimony, in cases involving expert testimony concerning various recognized “syndromes.” Our Supreme Court’s most recent opinion, however, indicated apparent willingness to reconsider the question of “syndrome” testimony. See Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989) (plurality).

There is a wide and growing body of research concerning the existence of various myths and misconceptions entertained by victims, offenders, medical personnel, judges, and jurors, which bear directly on the need for expert testimony in sexual abuse cases. Likewise, there is a wide and growing body of research regarding various normative and individualistic psycho-social responses to sexual abuse which form the emperical basis for expert testimony regarding sexual abuse generally, as well as regarding various “syndromes.” While there is undoubtedly potential for the usurpation of the jury’s function and/or misunderstanding of “syndrome” testimony, a wide and growing body of legal scholarship has provided an analytical framework for determining and permitting appropriate use of such testimony. With regard to the risk that jurors would misapprehend or give undue weight to such testimony, at least two recent articles have demonstrated effective cross-examination techniques to minimize such dangers.

Whatever may be the precise bounds and limits which must be put on “syndrome” testimony to protect a defendant’s legitimate interests, I find no error or abuse of discretion in the admission of the expert testimony provided in this case. Upon careful review of the record, especially the testimony of the well-qualified expert in this case, I find that the testimony was both relevant and helpful, rather than irrelevant and prejudicial. See Commonwealth v. Thek, supra, 546 A.2d at 87; Commonwealth v. Pearsall, 368 Pa.Super. 327, 331 n. 1, 534 A.2d 106, 108-09 n. 1 (1987); Commonwealth v. Emge, 381 Pa.Super. 139, 146-149, 553 A.2d 74, 77-79 (1988) (Brosky, J. dissenting; citing Pearsall ).

The majority has failed to identify a single specific statement by the expert which was erroneous, inflammatory, misleading, or confusing. Assuming, arguendo, that some or all of the expert testimony was irrelevant, it still has not been shown how an arguable waste of trial time prejudiced the defendant or compromised the truth determining function of the trial. That irrelevant testimony may have been admitted at trial, is certainly not, by itself, grounds for reversal. Likewise, after review of the expert testimony, I did not find a single statement which presumed to pass on the victim’s credibility or veracity individually or as a putative member of a class of victims. I find that the corroborative effects of the expert testimony in this case did not in any way usurped the fact finding or credibility determining functions of the jury. See Commonwealth v. Thek, supra; Commonwealth v. Pearsall, supra; Commonwealth v. Emge, supra (Brosky, J., dissenting).

Conclusion

Based on the foregoing, I dissent.

      . Appellant contends that a new trial is warranted because the trial court permitted the Commonwealth to use a document which it had knowledge of several months prior to trial but had not divulged to defense. See Pa.R.Crim.P. 305, Pretrial Discovery and Inspection. The document in question was a calender kept by the sister of the victim which she used to record significant events. Upon his objection, defense counsel was given an opportunity to review the document at trial before the Commonwealth used it in its examination of the witness. As we have already determined that this case must be remanded for a new trial, it is unnecessary to resolve appellant’s claim that a violation of discovery occurred which warrants a re-trial.

      . Appellant sought to introduce this evidence to refute the victim’s claim that appellant had sexual intercourse with her by establishing that the victim was a virgin at a point in time after the alleged rape. As appellant was acquitted of the charge of rape, we fail to understand, and appellant has not indicated, why this argument was raised on appeal. We, therefore, decline to discuss this issue.

      . The Commonwealth contends that appellant’s attempts to obtain review of the trial court’s admission of this testimony on the grounds that the prior misconduct was too remote in time and did not constitute a continuous course of conduct on the part of appellant are improper because these contentions were not made at trial or in post-verdict motions and, accordingly, are waived. Commonwealth v. Gordon, 364 Pa.Super. 521, 528 A.2d 631 (1987). We have determined that this case must be remanded for a new trial because of improper admission of expert testimony. The issue of admission of testimony regarding defendant’s prior misconduct, however, will be reviewed in the interest of judicial economy. As this issue is waived, it cannot provide a basis for remand. Our decision as to the merits of this claim, however, will provide guidance for the proper conducting of a new trial.

      . Changes in decisional law which occur during litigation will generally be applied to cases pending on appeal. Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988).

      . It is not indicated definitely in the transcript whether the records in contention are CYS files or records of a private institution. In his omnibus pre-trial motion, appellant refers to CYS files; in the parties’ briefs, however, reference is made to the records of the victim's treatment at a private psychological counselling center. We assume, although it is not stated by either party, that CYS was involved in the victim’s treatment at the center. We note that the expert witness in this case worked for CYS and had examined the victim at one point following the incidents. At any rate, the parties’ arguments are based upon the confidentiality afforded CYS files. We will, therefore, proceed on that basis.

      . The pertinent statute involved in this dispute is 11 Pa.Stat.Ann. § 2215, which provides in part:
      (a) Except as provided in section 14 reports made pursuant to this act including but not limited to report summaries of child abuse ... and written reports ... as well as any other information obtained, reports written or photographs or x-rays taken concerning alleged instances of child abuse in the possession of the department, a county children and youth social service agency or a child protective service shall be confidential and shall only be made available to:

        ******
      (5) A court or competent jurisdiction pursuant to a court order.

      . See Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); see also Commonwealth v. Zamarripa, 379 Pa.Super. 208, 549 A.2d 980, 981 (1988).

      . See e.g. Corder & Whiteside, A survey of Jurors Perception of Issues Related to Child Sexual Abuse, 6 Am.J.For.Psych. 37, 37-43 (1988); Saunders, A Comparative Study of Attitudes Toward Child Sexual Abuse Among Social Work and Judicial System Professionals, 12 Child Abuse & Neglect 83, 83-90 (1988); Ringwalt & Earp, Attributing Responsibility in Father — Daughter Incest, 12 Child Abuse & Neglect 273, 273-81 (1988); Larsen & Long, Attitudes toward Rape, 24 J.Sex. Research 299, 299-304 (1988); Frazier & Borgida, Juror Common Understanding and the Admissibility of Rape Trauma Syndrome Evidence in Court, 12 Law and Hum.Behav. 101, 101-22 (1988); Cleary, Rape Offenders’ Perceptions of Victim Attitudes, 6 Am.J.For.Psych. 57, 57-65 (1988); Goodman, et ai, When a Child Takes the Stand: Juror's Perceptions of Children's Eyewitness Testimony, 11 Law & Hum.Behav. 27, 27-40 (1987); Eisenberg, Owens & Dewey, Attitudes of Health Professionals to Child Sexual Abuse and Incest, 11 Child Abuse & Neglect 109, 109-16 (1987); Bond & Mosher, Guided Imagery of Rape: Fantasy, Reality, and the Willing Victim Myth, 22 J.Sex.Research 162, 162-83 (1986); Waterman & Foss-Goodman, Child Molesting: Variables Relating to Attribution of Fault to Victims, Offenders, and NonParticipating Parents, 20 J.Sex.Research 329, 329-49 (1984); see also Warsaw, I Never Called It Rape, passim (1988); Crewdson, By Silence Betrayed, passim (1988); Heifer & Kempe, Child Abuse and Neglect, passim (1976).

      . See e.g. Murnen, Perot & Byrne, Coping With Unwanted Sexual Activity: Normative Responses, Situational Determinants, and Individual Differences, 26 J.Sex.Research 85, 85-106 (1989); Seigel, et al., Resistence to Sexual Assault: Who Resists and What Happens, 79 J.Am.Pub. Health 27, 27-31 (1989); French, Young Childrens’ Response to “When” Questions: Issues of Directionality, 60 Child Development 225, 225-36 (1989); Cling, Rape Trauma Syndrome: Medical Evidence of Nonconsent, 35 Med.Tr.Tech.Q. 154, 154-81 (1988); Rynd, Incidence of Psychometric Symptoms in Rape Victims, 24 J.Sex.Research 155, 155-61 (1988); R[?]msza, Berg & Locke, Sexual Abuse: Somatic and Emotional Reactions, 12 Child Abuse & Neglect 201, 201-08 (1988); Cohen & Mannarino, Psychological Symptoms in Sexually Abused Girls, 12 Child Abuse and Neglect 571, 572-77 (1988); King, Hunter & Runyan, Going to Court: The Experience of Child Victims of Intrafamilial Sexual Abuse, 13 J.Health Politics, Policy and Law 705, 705-21 (1988); Muehlenhard & Cook, Men’s Self-Reports of Unwanted Sexual Activity, 24 J.Sex.Research 58, 58-72 (1988); Jam-pole & Weber, An Assessment of the Behavior of Sexually Abused and Non-Sexuatly Abused Children With Anatomically Correct Dolls, 11 Child Abuse and Neglect 187, 187-92 (1987); Tong, et al, Personality Development Following Sexual Abuse, 11 Child Abuse and Neglect 371, 371-83 (1987); Cantwell, Update on Vaginal Inspection as it Relates to Child Abuse in Girls Under Thirteen, 11 Child Abuse and Neglect 545, 545-46 (1987) (updating, 7 Child Abuse and Neglect 171, 171-76 (1983)); Tedesco & Schnell, Children's Reactions to Sex Abuse Investigation and Litigation, 11 Child Abuse and Neglect 267, 267-72 (1987); Bard, et al, A Descriptive Study of Rapists and Child Molesters, 5 Behav.Sci. & L. 203, 203-20 (1987); Nelson, Incest: Self-Report Findings from a Non-Clinical Sample, 22 J.Sex.Research 463, 463-77 (1987); Lizotte, The Uniqueness of Rape: Reporting Assaultive Violence to the Police, 31 Crime & Delinquency 169, 169-90 (1985); Wilmot, Sexual Drinking and Drift, J. Drug Issues 1, 1-16 (1981); see also Warsaw, supra; Crewdson, supra; Heifer & Kempe, supra.

      . See Serrato, Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68 B.U.L.R. 155, 155-92 (1988); McCord, Syndromes, Profiles, and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Ore.L.Rev. 19, 19-108 (1987); Roe, Expert Testimony in Child Sexual Abuse Cases, 40 U.Miami L.Rev. 97, 97-113 (1985); see also Donahue, Another Door Close: Rape Trauma Syndrome, 23 Gonz. L.Rev. 1, 1-35 (1987-88); Note, Expert Testimony on Rape Trauma Syndrome: An Argument For Limited Admissibility, 63 Wash.L.Rev. 1063, 1063-86 (1988); Lorenzen, The Admissibility of Psychological Testimony in Cases Involving the Sexual Misuse of a Child, 42 U.Miami L.Rev. 1033, 1033-72 (1988); Feeny, Expert Psychological Testimony on Credibility Issues, 115 Mil.L.Rev. 121, 121-77 (1987); Cacciola, The Admissibility of Expert Testimony in Intrafamily Child Sexual Abuse Cases, 34 UCLA L.Rev. 175, 175-205 (1986); Massaro, Experts, Psychology, Credibility, and Rape, 69 Minn.L.Rev. 395, 395-470 (1985); Wallace, The Syndrome Syndrome, 37 U.Fla.L.Rev. 1035, 1035-58 (1985); cf. I Winkelreid, The Bases of Expert Testimony, 67 N.C.E.R. 1, 1-27 (1988) (discussing the analysis of the syllogistic structure of expert testimony in determining admissibility). But see Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo.L.J. 429, 429-56 (1985).

      . See Miller, Cross-Examination of Expert Witnesses: Dispelling the Aura of Reliability, 42 U.Miami L.Rev. 1073, 1073-99 (1988); Gold-stein, Psychiatrists on the Hot Seat: Discrediting Doctors by Impeachment of Their Credibility, 16 Bull.Am.Acd.Psych.L. 255, 225-34 (1988).


author: CAVANAUGH, Judge: DEL SOLE, Judge,

text:
    561 A.2d 16
    COMMONWEALTH of Pennsylvania, Appellee, v. John P. LASKARIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1989.
    Filed June 16, 1989.

      Bruce L. Getsinger, Erie, for appellant.
    William A. Dopierala, Assistant District Attorney, Erie, for Com., appellee.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This is a direct appeal from judgment of sentence. Defendant John Laskaris was convicted at a jury trial on two separate burglary counts. The charges stem from burglaries which occurred at the Blue Max Restaurant and the offices of U.S. Air, both located at Erie International Airport, in May of 1980. Defendant was sentenced on these charges to two prison terms of ten to twenty years to be served consecutively to each other and consecutively to other sentences defendant was serving for prior convictions.

Defendant makes several allegations of error by the lower court and also requests that we allow him to appeal the discretionary aspects of his sentence. However, we must first address the Commonwealth’s contention that defendant has failed to preserve any of these issues for appeal due to his failure to timely file post-trial motions.

I.

Trial on the charges in question was conducted before the Honorable William E. Pfadt, P.J., with the jury returning guilty verdicts as to both counts of burglary on September 19,1986. Defense counsel presented a motion for new trial and/or arrest of judgment to the trial judge by leaving said motion in the judge’s chambers on September 29, 1986. This motion was not filed with the clerk of courts until the following day. Pennsylvania Rule of Criminal Procedure (Pa.R.Crim.P.) 1123(a) provides, in pertinent part, that, “within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment.” The Commonwealth argues that here, where the written motion was filed with the Clerk of Courts one day beyond the ten-day period set forth in Rule 1123(a), the allegations of error made in said motion are not preserved for appellate review.

Defendant explains that at the time this motion was submitted the standard practice of the Erie County Clerk of Courts was to refuse documents for filing which did not contain an “Order of Court” with a judge’s signature. He attaches to his brief an affidavit from Patrick Fetzner, Deputy Clerk of Courts, attesting to this practice. Defendant’s motion for a new trial and/or arrest of judgment did not include an order by the court on September 29, 1986 and, therefore, would not have been accepted for filing by the Erie County Clerk of Courts on that date. He labels this a “breakdown in the court’s operation” and claims that his failure to timely file post-trial motions is thereby excused.

After examining the record, and considering the particular circumstances involved, we must disagree with the position of the Commonwealth that defendant’s objections have all been waived as untimely.

It is true that we have previously held that leaving motions in a judge’s chambers, or handing them to a judge in the courtroom, does not constitute filing of such motions. See, Commonwealth v. Nixon, 311 Pa.Super. 450, 457 A.2d 972 (1983); Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982). Documents in criminal matters must be filed with the Clerk of Courts, as required by 42 Pa.C. S.A. § 2756(a)(1). However, we find the instant matter to be distinguishable from Nixon and Lynch, supra. In those previous cases motions had not been timely filed because of defense counsel’s failure to comply with the Rules of Criminal Procedure. In the case at bar, had defense counsel attempted to file post-trial motions on September 29, 1986, the Erie County Clerk of Courts would have refused to accept them because the motions did not include an order signed by a judge. This local practice was responsible for the delay in defendant’s motions being filed, rather than defense counsel’s failure to comply with our Rules of Criminal Procedure.

Our Supreme Court has held that local procedural rules cannot be construed so as to be inconsistent with prevailing statewide rules. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986); See also Pa.R.Crim.P. 6. Here a local practice, which apparently has not even been given the status of a procedural rule since it has not been cited as such by either party, placed an additional burden upon a defendant who sought to file post-trial motions, or any motions, with the court. This additional burden was not contemplated by our statewide procedural rules, and we consequently find this local practice to be impermissible. See Pa.R.Crim.P. 6.

It appears from the record that defendant’s motions for new trial and for an arrest of judgment could have been filed in a timely fashion on September 29, 1986 had the clerk of courts properly accepted them, and that the motions were in fact delivered to Pfadt, P.J. on that day. Therefore, we shall treat the issues raised in defendant’s post-trial motions as being timely raised and preserved for appellate review. In so doing, we will follow the reasoning of our Supreme Court enunciated in Feingold, supra:

This Court’s approach to the enforcement of procedural rules, whether local or state-wide, is dictated by the facts and circumstances in each individual case. To analyze otherwise would exalt procedural rules, which were created for efficiency and fairness, to a status far beyond their inherent power. “It has been our policy to overlook ... procedural errors when a party has substantially complied with the requirements of the rule and no prejudice would result. ‘Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives,’ ”

512 Pa. at 572, 517 A.2d at 1272 (citations omitted). Our decision to address the merits of defendant’s issues is also in accord with Pa.R.Crim.P. 2, which states that our rules shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

Moreover, in Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) (plurality opinion announcing the judgment of the court) the Supreme Court has recently explained that, under Pennsylvania Rule of Civil Procedure (Pa.R.C.P.) 126, a trial court is free to ignore the late filing of post-trial motions beyond the ten-day limit by addressing the merits of the issues so raised. In Kurtas there was some question as to whether post-trial motions had been timely filed, however, the lower court chose to address the merits of the issues raised. On appeal, the Superior Court did not review the merits of these claims, instead finding that appellant’s post-trial motions were untimely and failed to preserve any issues for appellate review. The Supreme Court overruled the Superior Court, holding that where the trial court chose to overlook a procedural defect and reach the merits of a claim, it was error for this court to not review the merits of the appeal. In effect, where the lower court has considered the merits of a party’s post-trial motions for relief, such action by the court below acts as a waiver of the ten day rule and excuses any delay in filing such motions.

Although the instant case is a criminal matter, we see no reason why the Kurtas rationale is not equally applicable to criminal as well as civil cases. We have before us orders of the trial court denying appellant’s motions for post-trial relief. It is unclear whether the trial court’s rulings were based on the merits of the issues raised because the court has not issued an opinion in support of its orders. However, having held that the Erie County practice described, supra, was impermissible, it follows that the lower should have considered the merits of issues raised in the post-trial motions. In a situation such as this, where the trial court should have addressed the merits of appellant’s issues raised in post-trial motions, but failed to do so because of what appeared to be a procedural defect, this court shall review the merits of those claims when presented on appeal. Procedural rules are not jurisdictional limitations, and overlooking a procedural defect does not in and of itself alter the jurisdiction of the court. Kurtas, supra.

II.

The trial court issued orders on March 3, 1987 denying defendant’s motion for a new trial and/or arrest of judgment and on March 27, 1987 denying his motion to reconsider and modify sentence. The record does not contain any opinion in support of these orders. However, we shall address the issues raised in defendant’s post-trial motions on their merits. Having considered the merits of the issues raised, we affirm the judgment of sentence entered below.

Defendant first charges that the trial court erred in the timing and manner of its ruling on his motion in limine regarding use of his prior criminal record at trial. The court ruled that the Commonwealth would be permitted to use Laskaris’ prior record for impeachment purposes if he testified in his own defense. Defendant acknowledges that this ruling is correct in light of our Supreme Court’s holding in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), and our determination in Commonwealth v. Flis, 369 Pa.Super. 275, 535 A.2d 157 (1987) that Randall should be applied retroactively. However, Laskaris contends that the court should have ruled on this motion before the trial began and charges that its failure to rule until the close of the Commonwealth’s case prejudiced him in questioning prospective jurors concerning their reactions to evidence of his prior record. Defendant argues that this situation infringed on his choice of whether or not to testify.

The record reveals that prior to voir dire the court granted defendant’s motion insofar as it related to previous criminal offenses involving the use of a firearm (Transcript of 9/16/86, p. 7). The court then stated that evidence of other criminal offenses might properly be introduced, but that it would defer ruling on this question until the defense presented its case (Transcript of 9/16/86, p. 7). Defense counsel did not object to a delay at that time. If defense counsel was concerned, as he now claims, that a delay in ruling on this motion in limine would impair his ability to thoroughly question prospective jurors and affect his trial strategy to such an extent as would prejudice defendant, it was at this point that he should have objected and voiced these concerns to the court. In order to properly preserve an issue for appellate review a party must make a timely, specific objection. Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979). By failing to object in a timely and specific manner, defendant has waived this issue.

Moreover, the Supreme Court acknowledged in Randall that it had previously been within the trial court’s discretion to allow introduction of prior crimes of a defendant for impeachment purposes under the holdings of Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). At the pre-trial stage of the instant proceedings the trial court indicated that it might permit the introduction of the evidence in question for impeachment purposes, and defense counsel knew or should have known that the state of the law at that time gave the trial court discretion to make that judgment. Under these circumstances we do not find that defendant was prejudiced in his ability to select an unbiased jury or in making a choice of whether he should testify on his own behalf.

Next, defendant charges that the lower court erred in denying his motion in limine seeking to prevent the introduction of prior bad acts through the testimony of an airport security guard. The guard testified that he discovered defendant, who he knew, attempting to break into offices at the airport on an occasion prior to the actual burglary. The guard further testified that he permitted defendant to make a duplicate of a master key which provided access to both the offices of U.S. Air and the Blue Max Restaurant.

Evidence of prior bad acts may be introduced, inter alia, to show motive, intent and as a means of establishing a common scheme or a series of events culminating in the criminal offenses charged. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987); Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985). When ruling on the admissibility of such evidence, the trial court must balance any prejudicial impact against its probative value. Absent a flagrant abuse of discretion the trial court’s determination on this matter will not be disturbed on appeal. Murphy, supra. We find that any prejudice Laskaris may have suffered from the airport security guard’s description of defendant’s earlier burglary attempt was outweighed by the probative value of the testimony. The lower court did not err in admitting this evidence and denying defendant’s motion in limine.

Another Commonwealth witness, Carl Rebrook, testified that he participated with defendant in the burglary at the airport. In direct examination, the prosecutor asked how Rebrook and the defendant were dressed when they went to the airport that night. The trial transcript contains the following exchange:

A. Yes, sir. Well, we were both dressed dark, and I know that I had on blue jeans. That was my regular wear all the time. And I would say that he had on blue jeans, for sure, blue jean pants. And you know, I’m not positive about a blue jean jacket, but we had toboggans on, and right now I can’t say positive whether they were ski masks or not.

Q. What do you mean by “toboggans”?

A. A winter cap, a dark knit cap.

Q. Okay.

A. But most of the time, if I’m allowed to say so, we both had possession of ski masks all the time, and probably we were.

(Transcript of 9/18/86, p. 421). Defense counsel immediately objected and moved for a mistrial, alleging at sidebar that the only possible inference which could be drawn from Rebrook’s response was that he and defendant had engaged in prior criminal activity. Defendant alleges the court erred in denying his motion for mistrial.

The trial court stated that it thought Rebrook’s remarks could be subject to different interpretations (Transcript of 9/18/86, p. 422). We agree with the conclusion of the trial court and find no error. The decision of the trial court to deny a motion for mistrial will be overturned only if a party is able to demonstrate an abuse of discretion. Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985). Defendant has failed to demonstrate an abuse of discretion in the court’s ruling on this matter.

Next Laskaris complains that the court erred in granting the Commonwealth’s motion in limine preventing him from cross-examining the airport security guard regarding the guard’s homosexual involvement with a former employee of the Blue Max Restaurant. Defendant claims this information was relevant and material, theorizing that the former restaurant employee should have been considered a suspect in the instant case and that the guard’s testimony implicating defendant was a cover for this third individual.

The trial court ruled that defense counsel could question the guard concerning his acquaintanceship with this third individual while avoiding any implication that they were sexually involved, stating that the sexual preferences of this witness had no bearing or materiality to the case (Transcript of 9/18/86, pp. 152-153). A trial judge has broad discretion with regard to the admission or exclusion of evidence. Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984). Here defendant was allowed to question the security guard concerning his relationship with this third person, being cautioned only to avoid raising sexual implications. We do not find this ruling to be an abuse of the trial court’s discretion. Even where it is relevant, the trial court may exclude evidence that might prejudice the jury. Lumpkins, supra. The lower court might reasonably conclude that the evidence in question would create prejudice against the witness in the jurors’ minds. Its ruling avoided this possibility while affording defendant the opportunity to cross-examine the witness concerning his relationship with the third individual.

The Commonwealth filed a second motion in limine concerning the testimony of the airport security guard. This motion sought to prevent defendant from introducing prior statements made by the witness in which he said that the Assistant District Attorney Frank Scutella, the prosecutor in the instant case, had questioned his credibility. Defendant contended that the jurors should be made aware that the prosecutor had previously made disparaging comments about the credibility of his own witness. The trial court granted the Commonwealth’s motion in part by ruling that the defendant could introduce the prior statements, but that he could not identify prosecutor Scutella as the person who had made the disparaging remarks. Defendant challenges this ruling as being erroneous.

The trial court has broad discretion in ruling on the scope and manner of cross-examination, and its decisions will not be reversed on appeal absent a clear abuse of discretion. Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984). Here the defendant was permitted to make the jury aware that the credibility of the airport security guard, who was called as a witness by the Commonwealth, had earlier been questioned by someone in the prosecutor’s office. We do not find that the court improperly restricted defendant’s cross-examination or his attempt to impeach the credibility of the witness by imposing the sole limitation that prosecutor Scutella not be identified as the person who made the remarks. Cf. Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980) (no abuse of discretion for trial court to impose restriction on scope of cross-examination of Commonwealth witness). No abuse of discretion has been demonstrated.

Defendant's next issue again relates to testimony of the airport security guard. Laskaris had filed a motion to suppress all testimony by this witness on the grounds that it would be the improper product of suggestive and hypnotically refreshed recollection. The lower court denied defendant’s motion to suppress and he alleges error in this ruling. We disagree.

We have held that a witness’s pre-hypnotic statements which were not changed or expanded when the witness was hypnotized are admissible. Commonwealth v. Mehmeti, 347 Pa.Super. 278, 500 A.2d 832 (1985). In the instant matter, the basis for the trial court’s ruling was that the questioning of this witness during hypnosis did not concern information relating to the burglary charges before us (Transcript of 9/18/86, pp. 218-219). A review of the suppression hearing transcript and the exhibits introduced by the Commonwealth at that hearing, including a transcript of the hypnotic session marked as Exhibit 1, support the court’s determination that the hypnotic session did not focus on the burglary charges with which this appeal is concerned. There appears to be no evidence which substantiates defendant’s claims that this testimony is somehow tainted. Therefore, since the testimony regards statements which were unaffected by the hypnotic session, the court correctly denied defendant’s motion to suppress. This ruling is in accord with Mehmeti, supra.

Finally, defendant requests that we grant him leave to appeal the discretionary aspects of sentencing. He has set forth a concise statement of the reasons for this request as required by Pennsylvania Rule of Appellate Procedure 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). It is within our discretion to allow an appeal from discretionary aspects of sentencing, and in exercising that discretion we may look to the record and the opinion of the lower court for support of the sentence entered. Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

The trial court had the benefit of a pre-sentence report, which it took into consideration. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). That report revealed defendant’s extensive juvenile record and his numerous convictions as an adult on charges that included burglary, theft, criminal conspiracy and first-degree murder. The lower court stated for the record that the tremendous number and serious nature of defendant’s prior offenses persuaded it to impose the maximum penalty possible.

Sentencing is generally within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986). We do not believe appellant has demonstrated any abuse of discretion by the lower court and we find that the record supports the sentence imposed. Therefore, we decline to grant appellant’s allowance of appeal as to the discretionary aspects of sentencing.

The judgment of sentence entered by the lower court is affirmed.

MONTGOMERY, J., concurs in the result.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

I join the Majority in its determination that the local practice requiring an Order of Court before post-verdict motions may be filed with the Clerk of Courts is impermissible. On this basis I agree that the post-verdict motions in this case should be considered timely filed. While normally I would suggest that the matter be remanded to the trial court for the filing of an opinion, in the interest of judicial economy, I join the majority on all of the substantive issues raised on appeal except the sentencing question.

The discussion of Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) in the Majority Opinion is unnecessary for the disposition of this case. While I am in agreement with the Majority’s view that the rationale of Kurtas should also apply to criminal cases, since we have determined that the post-verdict motions were properly filed, we need not analyze this case under Kurtas. Also, in the case sub judice the trial court did not dispose of the post-verdict motions on the merits, thus, the Kurtas holding that disposition of late filed post-trial motions on their merits operates as a waiver has not been met. Also, I am concerned with the language found in the Majority Opinion on page 20 where it states:

In effect, where the lower court has considered the merits of a party’s post-trial motions for relief, such action by the court below acts as a waiver of the ten day rule and excuses any delay in filing such motions.

My reading of Kurtas would not permit the lower court to excuse a delay which extends beyond thirty days in the filing of post-trial motions. There would be no jurisdiction in the trial court level after thirty days. Also, I would point out that the discussion of Kurtas in the Majority Opinion is dictum.

I must disagree with the Majority’s decision to disallow an appeal from the discretionary aspects of sentencing. At the outset I believe the time has come for the General Assembly to review 42 Pa.C.S.A. § 9781(b) which limits the review of discretionary sentencing matters to those cases where only a “substantial question” exists and where this court agrees to exercise its discretion and hear the issue. It is my view that in a criminal proceeding a defendant has a right to have all matters reviewed which have been properly preserved at the trial court level. Further, I believe that Article 5, Section 9 of the Constitution of this Commonwealth prohibits the limitation of review found in 42 Pa.C. S.A. § 9781(b). That Article provides as follows:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

The Supreme Court has stated that this section establishes a right of appeal to an appellate court. In Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980) the Supreme Court in discussing the right of appeal in the context of a PCHA petition stated:

... an accused has an absolute right to appeal, Pa. Constitution, Article V, Section 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waives the right, i.e., for not protecting the accused’s right in the absence of an effective waiver. This requirement that counsel protect the appellate of an accused extends even to circumstances where the appeal is “totally without merit.” ...

The applicable section of the Sentencing Code that eliminates a right of an appeal by requiring that review of certain sentencing questions is purely discretionary with the appellate court would seem to violate this constitutional provision. This issue can only be addressed in the appellate courts and is not one that can be raised in the trial court.

With regard to to the case sub judice, having reviewed the sentence and the reasons for the sentence stated by the sentencing judge, I find that the sentence imposed by the trial judge was appropriate and proper under the circumstances and would, therefore, affirm the judgment of sentence.

      . Although it is not clear from the record, the apparent practice in Erie County at the time in question was that a party would “file” a motion by leaving it with the appropriate judge, who would then issue an “order” and in due time pass these documents onto the Clerk of Courts.
      Paragraph 2 of Deputy Clerk of Courts Fctzner’s affidavit explains the practice as follows:
      2. During the time period up to and including September 30, 1986, the Erie County Clerk of Court’s office refused to accept any motions, including post-trial motions filed on behalf of defendants, for filing unless said motions included an Order of Court signed by a judge. (This practice was utilized to prevent motions from being filed, removed from the Clerk of Court’s file, and never being ruled upon.)

      . Rules of Criminal Procedure Rule 6. Local Rules
      (a) For the purpose of this rule, the term "local rule” shall include every rule, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, which is adopted or enforced by a court of common pleas to govern criminal practice and procedure.
      (b) (1) Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.
      (2) Local rules shall be given numbers that are keyed to the numbers of the general rules to which the local rules correspond.
      (c) To be effective and enforceable:
      (1) A local rule shall be in writing.
      (2) Seven certified copies of the local rule shall be filed by the court promulgating the rule with the Administrative Office of Pennsylvania Courts.

        (3) Two certified copies of the local rule shall be distributed by the court promulgating the rule to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
      (4) One certified copy of the local rule shall be filed by the court promulgating the rule with the Criminal Procedural Rules Committee.
      (5) The local rule shall be kept continuously available for public inspection and copying in the office of the prothonotary or clerk of court. Upon request and payment of reasonable costs of reproduction and mailing, the prothonotary or clerk shall furnish to any person a copy of any local rule.
      (6) A local rule promulgated before the effective date of this rule shall be filed on or before that effective date with the prothonotary or clerk of court and shall be kept by the prothonotary or clerk for inspection, copying, and furnishing as provided in subparagraph
      (c) (5).
      (d) A local rule shall become effective not less than thirty days after the date of publication of the rule in the Pennsylvania Bulletin.
      (e) The Criminal Procedural Rules Committee may at any time recommend that the Supreme Court suspend, vacate, or require amendment of a local rule and may suspend that local rule pending action by the Court on that recommendation.

      . A handwritten notation on the final page of defendant’s motions reads: “Received 9/29/86 — IT,” which we take to indicate that the motions were received by a member of Judge Pfadt’s staff on that day.