author: WIEAND, Judge:

text:
    533 A.2d 110
    Louis SILVERMAN and Celia Silverman, H/W, Appellants, v. BELL SAVINGS & LOAN ASSOCIATION and Langsdorf-Adler Company a/k/a Century 21 Langsdorf-Adler Company, Appellees.
    Superior Court of Pennsylvania.
    Argued May 5, 1987.
    Filed Oct. 2, 1987.
    Reargument Denied Nov. 25, 1987.

      Robert M. Fellheimer, Philadelphia, for appellants.
    Robert H. Dickman, Philadelphia, for Bell Sav., appellee.
    David Weinstein, Philadelphia, for Langsdorf-Adler, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The principal contention made in this appeal is that the post-trial court erred when it changed the findings of the chancellor who had determined that a real estate transaction should be rescinded because of fraud. We are constrained to agree that appellant’s contention is well taken; and, therefore, we reverse.

A review of the facts is essential to an understanding of the issues. In or about March, 1982, Bell Savings & Loan Association acquired title via mortgage foreclosure to premises known as 863 Township Line in Abington Township, Montgomery County. Bell listed the premises for sale with Langsdorf-Adler Company (Adler), a real estate broker. Adler prepared a multi-list card which recited, inter alia, that the premises measured thirty (30) feet by one hundred (100) feet and was zoned “F-l Offices.” The card also recited that the rear of the property was available for parking. After the property had been listed, Martin Arost, one of Bell’s officers, had occasion to tell Louis Silverman, an attorney who was known to invest in real estate, that the premises were being offered for sale. Thereafter, Arost sent Silverman a copy of the listing card, and Mrs. Silver-man was shown the property by an Adler employee. During Mrs. Silverman’s inspection of the property she asked about and was told that parking was permitted on the rear eighty feet of the lot.

It was some time later that Adler discovered that the listed property actually consisted of two lots, with the front lot measuring 30 x 120 feet and the rear lot measuring 30 X 80 feet. Adler also discovered that the rear lot was not zoned for commercial use but for residential use. As such, commercial parking thereon was a prohibited use. Adler informed Bell of the error, but neither Adler nor Bell conveyed the correct information to Silverman. On May 12, 1982, Bell entered a written agreement to sell the premises to Mr. and Mrs. Silverman, who agreed to buy the same for $43,000.00.

Several days before closing, which was scheduled for July 6, 1982, Silverman toured the property with Mr. Adler who expressly represented that the rear portion of the lot was available for parking. At the closing, after Silverman had voiced some doubt regarding the zoning of the rear portion of the lot, a call was placed by Martin Laub, a Bell representative, to an unidentified employee of Abington Township. When Silverman was reassured by Laub, following Laub’s call, that the zoning ordinance permitted the lot to be used for commercial purposes, the closing was completed.

Silverman made repairs to the building and leased the premises to Nancy Monahan for purposes of conducting a school for bartenders. It was then learned, however, that a bartending school was not permitted in an “F-l Offices” zone and that commercial parking was not permitted on the rear portion of the lot. When Silverman’s efforts to obtain a variance were unsuccessful, the rental agreement was terminated.

The Silvermans filed an action in equity against Bell alleging fraudulent misrepresentation and seeking rescission of the real estate transaction. Bell caused Adler to be joined as an additional defendant. The action was tried without a jury before the Honorable William M. Marutani, who found that Bell and Adler had made and the Silver-mans had relied upon material misrepresentations regarding the zoning classification of the property. The court awarded rescission and in connection therewith directed that Bell return all moneys received from the Silvermans. Bell and Adler were held jointly and severally liable for (1) interest paid by the Silvermans on account of moneys borrowed to complete the sale; (2) taxes paid by the Silver-mans; and (3) insurance premiums paid by the Silvermans in order to insure the premises. The court refused to award damages to the Silvermans for repairs necessitated by vandalism after title had been conveyed and for costs and legal fees expended in an attempt to obtain a zoning variance.

All parties filed post-trial motions which, because of Judge Marutani’s retirement, were heard by the Honorable Lois G. Forer. Judge Forer concluded that although Bell and Adler had misrepresented the zoning classification, the misrepresentation was not material and the Silvermans should not have relied upon it. She determined that rescission was an inappropriate remedy and that the Silver-mans’ only damages were the difference between the value of the rear lot if it had been zoned for commercial use and its actual value as zoned for residential use. A new trial was ordered to determine the Silvermans’ comparative negligence and to make a proper determination of damages. The Silvermans appealed.

“[W]hen a court en banc reverses the findings of a chancellor and gives reasons for so doing, it is the duty of an appellate court to carefully examine the reasons given, ‘together with the entire record, and determine whether the action of the court en banc is justified, keeping in mind the weight to which the original findings are entitled and also the reasons given for their overthrow.’ ” Sorbello v. Sorbello, 272 Pa.Super. 424, 428, 416 A.2d 529, 531 (1979), allocatur denied, quoting Belmont Laboratories, Inc. v. Heist, 300 Pa. 542, 548, 151 A. 15, 17 (1930). In the instant case, the court en banc accepted most of the findings of fact made by the chancellor but concluded that, even so, the fraudulent misrepresentations found by the chancellor were not material and should not have been relied upon by the buyers. We are constrained to disagree with the court en banc.

In Delahanty v. First Pennsylvania Bank, 318 Pa. Super. 90, 107-109, 464 A.2d 1243, 1251-1252 (1983), fraud was defined as follows:

Fraud consists of anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). It has been said that fraud may induce a person to assent to something which he would not otherwise have done, or it may induce him to believe that the act which he does is something other than it actually is. Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976). To be actionable, the misrepresentation need not be in the form of a positive assertion. Shane v. Hoffmann, 227 Pa.Super. 176, 324 A.2d 532 (1974) [overruled on other grounds, Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 560, 499 A.2d 282, 286 (1985) ]. It is any artifice by which a person is deceived to his disadvantage. McClellan’s Estate, 365 Pa. 401, 75 A.2d 595 (1950). It may be by false or misleading allegations or by concealment of that which should have been disclosed, which deceives or is intended to deceive another to act upon it to his detriment. Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498 (1974). It is well settled that fraud is proved when it is shown that the false representation was made knowingly, or in conscious ignorance of the truth, or recklessly without caring whether it be true or false. Warren Balderston Co. v. Integrity Trust Co., 314 Pa. 58, 170 A. 282 (1934). It has also been established that “the deliberate nondisclosure of a material fact amounts to a culpable misrepresentation no less than does an intentional affirmation of a material falsity.” Neuman v. Corn Exchange National Bank & Trust Co., 356 Pa. 442, 450-52, 51 A.2d 759, 764 (1947). Yet, a misrepresentation innocently made is also actionable if it relates to a matter material to the transaction involved; while if the misrepresentation is made knowingly or involves a non-privileged failure to disclose, materiality is not a requisite to the action. Shane v. Hoffmann, 227 Pa.Super. 176, 324 A.2d 532 (1974) [overruled on other grounds, Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 560, 499 A.2d 282, 286 (1985) ]....
The elements of fraud are as follows: “ ‘there must be (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result.’ ” Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32 L.Ed.2d 806, quoting Neuman, 356 Pa. at 442, 51 A.2d at 763; See e.g. Edelson v. Bernstein, 382 Pa. 392, 115 A.2d 382 (1955); Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 97 A.2d 71 (1953); Shane v. Hoffman, 227 Pa.Super. 176, 324 A.2d 532 (1974); Laughlin v. McConnel, 201 Pa.Super. 180, 191 A.2d 921 (1963).

See also: Pittsburgh National Bank v. Larson, 352 Pa.Super. 250, 254, 507 A.2d 867, 869 (1986). In the instant case the evidence was sufficient to support the trial court’s findings that Bell and Adler had knowingly misrepresented the zoning status of the property to the buyers.

“[I]f [a] misrepresentation is knowingly made or involves a non-privileged failure to disclose, materiality is not a requisite to the action____” Shane v. Hoffmann, supra 227 Pa.Super. at 182, 324 A.2d at 536, citing DeJoseph v. Zambelli, 392 Pa. 24,139 A.2d 644 (1958). See: Delahanty v. First Pennsylvania Bank, supra. Here, the evidence showed and the trial court found that Bell and Adler had misrepresented to the Silvermans that the entire premises were zoned for commercial use despite their knowledge that the rear lot was zoned for residential use only. Under these circumstances, deliberate fraud was proven, and the materiality of the misrepresentation, or the lack thereof, was not a relevant consideration.

Moreover and in any event, if materiality were a necessary element, we would be compelled to agree with the trial court’s conclusion that Bell and Adler’s misrepresentations were material.

A misrepresentation is material when it is of such a character that if it had not been made, the transaction would not have been entered into. Greenwood, 239 Pa. Super, at 378, 357 A.2d at 607. One deceived need not prove that fraudulent misrepresentation was the sole inducement to the investment of money, a material inducement is sufficient. Neuman, 356 Pa. at 454, 51 A.2d at 765.

Delahanty v. First Pennsylvania Bank, supra.

That the availability of parking on the property was important to the buyers was amply proven at trial. Indeed, Mrs. Silverman had expressly asked Adler’s agent about the parking area; and representatives of both Adler and Bell had repeatedly emphasized the availability of on-premises parking when discussing the property with the Silvermans. The evidence showed that the property was located in an area in which on-street parking was severely limited. Therefore, the availability of parking spaces on the premises was an incentive to potential lessees interested in operating a business on the property. Consequently, the availability of parking on the rear lot directly affected the value of the entire property. Under these circumstances, the trial court could properly find that the zoning status of the rear portion of the property was material to the transaction.

“It is a fundamental principal of the law of fraud, regardless of the form of relief sought, that in order to secure redress, the representee must have relied upon the statement or representation as an inducement to his action or injurious change of position.” 37 Am.Jur.2d, Fraud & Deceit, § 223, at 297 (1968) (footnote omitted). “The recipient of a fraudulent misrepresentation can recover against its maker ... if, but only if, (a) he relies on the misrepresentation in acting or refraining from action, and (b) his reliance is justifiable.” Restatement (Second) of Torts § 537 (1977). See: Scaife Co. v. Rickwell-Standard Corp., 446 Pa. 280, 286-288, 285 A.2d 451, 455-456 (1971); Emery v. Third National Bank of Pittsburgh, 308 Pa. 504, 511-512, 162 A. 281, 283 (1932); Delahanty v. First Pennsylvania Bank, supra; National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 376, 381 A.2d 963, 966 (1977); 37 Am. Jur.2d, supra at §§ 223, 236.

It is not essential to the existence of a valid right of action for fraud that such wrongful conduct be the sole cause of the plaintiffs loss; it is enough to show that it was an essential or inducing cause. It has been held that if the plaintiff would not have acted except for the false representations, there is such a reliance thereon as entitles him to maintain an action even though the misrepresentations were not the exclusive inducing cause. Thus, the rule is that it is not necessary to the predication of fraud that a misrepresentation be the sole cause or inducement of the contract or transaction in question, and the only element relied upon by the representee contributing to the result, but it is enough that it may constitute a material inducement.

37 Am.Jur.2d, supra, § 227, at 303 (footnotes omitted). See: Neuman v. Corn Exchange National Bank & Trust Co., supra 356 Pa. at 454-455, 51 A.2d at 765. Whether the party claiming to have been defrauded relied upon the false representation is a question of fact. See: National Building & Leasing, Inc. v. Byler, supra; 37 Am.Jur.2d, supra § 229 at 305; Restatement (Second) of Torts, supra § 537 comment a.

In the instant case, the trial court found that the Silvermans had, in fact, relied upon Bell and Adler’s misrepresentations. This finding is supported by the evidence. Silverman testified that he would not have agreed to purchase the property if he had known that it was not zoned as Bell and Adler had represented. Although Silverman acknowledged the fact that an unidentified Abington Township employee had also represented that the property was zoned for commercial use, he testified that in making his decision to accept title to the property he continued to rely on Bell and Adler’s representations as well as that which had been made by the township employee. Under these circumstances, we conclude, the trial court was not acting without factual support when it found that appellants had relied upon the misrepresentations by Adler and Bell. Therefore, the post-verdict court exceeded its proper scope of review when it substituted its own finding for that of the trial court.

The rules for determining whether a person’s reliance upon a fraudulent misrepresentation are justifiable have been set forth in sections 540 and 541 of the Restatement (Second) of Torts. Those rules provide as follows:

§ 540 Duty to Investigate
The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.
§ 541 Representation Known to Be or Obviously False
The recipient of a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.

Thus, “[although the recipient of a fraudulent misrepresentation is not barred from recovery because he could have discovered its falsity if he had shown his distrust of the maker’s honesty by investigating its truth, he is nonetheless required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation.” Restatement (Second) of Torts § 541 comment a. See: Sciafe Co. v. Rockwell-Standard Corp., supra 446 Pa. at 287, 285 A.2d at 455; 37 Am.Jur.2d, supra §§ 236, 237, 248-250. The right to rely upon a representation is generally held to be a question of fact. See: National Building Leasing, Inc. v. Byler, supra 252 Pa.Super. at 376, 381 A.2d at 966; 37 Am.Jur.2d, supra §§ 240, 264.

The trial court determined that the Silvermans’ reliance upon Bell and Adler’s misrepresentations had been justified. The post-verdict court, however, disagreed, concluding that such reliance had not been justified because Mr. Silverman should have checked the zoning of the property himself. However, the law is clear that there is no obligation on the part of a purchaser to examine public records prior to purchase. See: LaCourse v. Kiesel, 366 Pa. 385, 389, 77 A.2d 877, 880 (1951); Merritz v. Circelli, 361 Pa. 239, 242, 64 A.2d 796, 798 (1949). Moreover, the evidence in the instant case does not suggest that the falsity of Bell and Adler’s representations should have been apparent to the Silvermans from their inspection of the property. On the contrary, the record shows that the appearance of the rear portion of the property was consistent with Bell and Adler’s representations that it could be used as a parking area. Finally, although it cannot be denied that Mr. Silverman, as an attorney and a real estate investor, could have verified the zoning status of the property prior to consummating the sale, the facts are not such as to require a finding that his failure to do so operated as a bar to recovery. This is especially so in light of the fact that the Silvermans had engaged in numerous prior real estate transactions with Bell and, therefore, had a basis for trusting the representations made by Bell’s employees. See and compare: Sciafe Co. v. Rockwell-Standard Corp., supra.

Having concluded that the evidence supported the trial court’s findings establishing fraud, the remaining issue is whether the trial court’s remedy was appropriate. Equitable rescission is proper “if the purchaser was induced to enter a contract or sales agreement by material misrepresentation.” Gilmore v. Northeast Dodge Co., 278 Pa.Super. 209, 214, 420 A.2d 504, 506 (1980). See: Lake v. Thompson, 366 Pa. 352, 77 A.2d 364 (1951). In LaCourse v. Kiesel, supra, the Supreme Court stated:

A material misrepresentation of an existing fact confers on the party who relies on it the right to rescind whether the defendants here actually knew the truth or not, especially where, as here, they had means of knowledge from which they are bound to ascertain the truth before making the representation. Misrepresentations made under such circumstances are fraudulent and have been variously called implied, constructive or legal fraud or fraud in Equity ... but even where innocently made, if material, are nevertheless grounds for rescission____

Id. 366 Pa. at 390, 77 A.2d at 880 (emphasis deleted). See: National Building Leasing, Inc. v. Byler, supra 252 Pa. Super, at 374, 381 A.2d at 965.

Rescission, of course, is not the only remedy available to a defrauded plaintiff. Where it is determined that rescission is not appropriate, or where plaintiff elects to affirm the contract, damages at law may be awarded. Such damages include “(a) the difference between the value of what [plaintiff] has received in the transaction and its purchase price or other value given for it; and (2) pecuniary loss suffered otherwise as a consequence of the recipient’s reliance upon the misrepresentation.” Restatement (Second) of Torts § 549. See: Neuman v. Corn Exchange National Bank & Trust Co., supra 356 Pa. at 455, 51 A.2d at 766; Cunningham v. Ray, 263 Pa. 492, 497, 106 A. 884, 886 (1919); Delahanty v. First Pennsylvania Bank, supra 318 Pa.Super. at 117, 464 A.2d at 1257.

In the instant case, the buyers requested rescission, and the trial court determined that rescission was an appropriate remedy. As we have previously suggested in this opinion, a fraudulently material misrepresentation was sufficiently established by the evidence. Therefore, the trial court could properly order that the sale be rescinded.

On appeal, the Silvermans ask not only that we reinstate the trial court’s order of rescission, but also that we modify the trial court’s order to take into account various events which occurred after post-trial motions had been argued. This we will not do. Any request for additional damages accruing since trial must, in the first instance, be directed to the trial court.

The appellants also contend that the trial court should have awarded compensation for (1) the cost of repairing damage caused to the property by vandals; (2) costs incurred in their efforts to obtain a variance; and (3) prejudgment interest. We disagree. The trial court found, and the evidence supports, that the first two items of damage were not proximately caused by the fraud practiced by appellees. Moreover, pre-judgment interest was inappropriate.

The order of the post-verdict court is reversed, and the decree of the trial court is reinstated.

      . A prior attempt to lease the premises for use as a printer’s shop was not consummated.

      . The court en banc’s conclusion that the zoning issue was not material to the transaction because a bartending school, the use to which the Silvermans' tenant intended to put the property, was not permitted in an F-l commercial zone is a non sequitur. The evidence does not suggest and the chancellor did not find that the Silvermans had purchased the property solely for the purpose of leasing it to Monahan for purposes of conducting a bartending school.

      . The suggestion by the post-verdict court that principles of comparative negligence should have been applied was inappropriate. Where a plaintiff has justifiably relied upon a fraudulent misrepresentation, his recovery is neither barred nor can it be reduced because of his own negligence. See: Restatement (Second) of Torts § 545A.

      . Even if we were to determine that rescission was inappropriate in this case, the proper measure of damages would not be merely the difference between the value of the rear portion of the premises as zoned and the value that it would have had if it had been zoned as represented. Rather, damages at law would be measured by the difference between the value of the entire parcel as zoned and the value that the entire parcel would have had if the rear portion thereof had been zoned as represented. Any other measure of damages would fail to reflect the nature of the transaction between the parties.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    533 A.2d 116
    COMMONWEALTH of Pennsylvania, Appellee, v. Victor M. RAMIREZ, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. lose VALENTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1987.
    Filed Sept. 29, 1987.
    Reargument Denied Nov. 23, 1987.

      John R. Gailey, Jr., York, for appellants.
    Mark Bellavia, Assistant District Attorney, York, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

This is a consolidated appeal from the judgments of sentence entered after appellant-Valentin pleaded guilty to delivery of a controlled substance (No. 669 Harrisburg 1985) and after appellant-Ramirez pleaded guilty to delivery of a controlled substance and possession of a controlled substance (No. 670 Harrisburg 1985). In this appeal, we must decide whether the sentences imposed by the trial court were barred either by Section 111 of the Crimes Code or on the constitutional ground of double jeopardy. For the reasons stated below, we affirm the judgments of sentence.

Appellants were charged in February of 1985, in York County, with several drug-related offenses. In May of 1985, appellants were indicted by a federal grand jury on drug-related offenses arising out of the same occurrence of events. On June 13, 1985, appellants pleaded guilty to most of the Commonwealth charges. Appellant-Valentin pleaded guilty to delivery of a controlled substance, and appellant-Ramirez pleaded guilty to delivery of a controlled substance and possession of a controlled substance. Subsequently, on August 6, 1985, appellants appeared before the United States District Court for the Middle District of Pennsylvania. Appellant-Valentin entered a plea of guilty to conspiracy and received a sentence of eight years’ imprisonment. Appellant-Ramirez entered a plea of guilty to possession with intent to distribute and was sentenced to five years’ imprisonment. On August 23, 1985, appellants appeared before the Court of Common Pleas of York County and were sentenced. Appellant-Valentin was sentenced to four to eight years’ imprisonment, and appellant-Ramirez was sentenced to five to ten years’ imprisonment on the charge of delivery of a controlled substance and was sentenced to twelve months’ probation on the charge of possession of a controlled substance.

Timely motions to modify sentence and to withdraw guilty plea were filed and denied by the trial court. Appellants thereafter filed notices of appeal to this Court.

Appellants contend that the sentences imposed by the trial court were barred either by Section 111 of the Crimes Code (18 Pa.C.S.A. § 111) or on the constitutional ground of double jeopardy. Specifically, appellants argue that the trial court was barred from imposing their sentences since appellants had been convicted and sentenced previously in federal court for offenses based upon the same conduct. In this appeal, appellants request that we vacate their sentences and discharge them from imprisonment. We refuse to do so.

Our analysis of this appeal must begin with a determination of whether Section 111 is applicable since we need only consider the double jeopardy argument if it is determined that Section 111 does not allow the requested relief. See Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983). Section 111 provides as follows:

§ 111. When prosecution barred by former prosecution in another jurisdiction
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless:
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.

18 Pa.C.S.A. § 111 (emphasis added). We, however, find that Section 111 is not applicable to the instant case.

Section 111 only applies to a “subsequent prosecution in this Commonwealth.” A “prosecution” has been defined as “a proceeding instituted ... for the purpose of determining the guilt or innocence of a person charged with crime.” Black’s Law Dictionary at 1099 (5th ed. 1981). While the terms “former prosecution” and “subsequent prosecution” have not been interpreted under Section 111, these terms have been interpreted in the context of 18 Pa.C.S.A. § 110. Sections 109-112 of the Crimes Code, 18 Pa.C.S.A. §§ 109-112, bar prosecutions in various circumstances. In the context of Section 110, our Supreme Court stated in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983) that the terms “former prosecution” and “subsequent prosecution” did not depend on the time the particular offenses were filed. Rather, the Court declared that the terms were “intended to refer to the completed prosecution and the pending prosecution ...” Id., 500 Pa. at 289, 455 A.2d at 1197 (emphasis in original). In light of the Statutory Construction Act’s mandate to interpret legislative enactments to acknowledge the clear and obvious meaning of the language, we conclude that the Supreme Court’s interpretation of the terms “former prosecution” and “subsequent prosecution” in Beatty should apply also to Section 111. In both Section 110 and Section 111, our legislature explicitly stated that a former prosecution bars a subsequent prosecution when: “the former [first] prosecution resulted in an acquittal or in a conviction ...” 18 Pa.C.S.A. §§ 110(1), 111(1). A prosecution against a defendant, consequently, is not completed, and therefore cannot be a “former prosecution,” until a defendant is acquitted or convicted.

In the instant case, the Commonwealth’s prosecution of appellants was completed on June 13,1985 when the trial court accepted appellants’ pleas of guilty. See 18 Pa.C.S.A. § 109(3) (plea of guilty accepted by the court constitutes a conviction); Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984) (because appellants entered pleas of guilty, a subsequent “pending prosecution” would be barred under § 110). On the date that the Commonwealth’s prosecution was completed, the federal prosecution was merely “pending” since the federal prosecution was commenced in May of 1985, but not completed until August 6, 1985 when appellants pleaded guilty. Accordingly, the subsequent prosecution occurred not in state court, but rather, in federal court. Since Section 111 only applies to a “subsequent prosecution in this Commonwealth,” we find that Section 111 is inapplicable in the instant case.

Appellants next argue that their sentences in state court were barred under the principle of double jeopardy since they were previously sentenced in federal court for the same crime. In Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), our Supreme Court enunciated the judicial consideration involved in making the federal-state “dual sovereignty” doctrine compatible with the “double jeopardy” clause. The Court stated:

When one examines the “dual sovereignty” doctrine as it applies to the double jeopardy clause, we are really involved in a balancing process, whereby we place the interests of the two sovereigns on one side of the judicial scale, and on the other side we place the interest of the individual to be free from twice being prosecuted and punished for the same offense.

Id., 447 Pa. at 169, 286 A.2d at 640-641 (emphasis added). The Court further ruled in Mills that:

... henceforth in Pennsylvania, a second prosecution and imposition of punishment for the same offense will not be permitted unless it appears from the record that the interests of the Commonwealth of Pennsylvania and the jurisdiction which initially prosecuted and imposed punishment are substantially different. In other words, if it appears that the interests of this Commonwealth were not sufficiently protected in the initial prosecution, then a second prosecution and imposition of additional punishment in Pennsylvania will be allowed.

Id., 447 Pa. at 171, 286 A.2d at 642 (emphasis added).

This Court acknowledges that it was the federal court which first imposed sentence on appellants. Our Supreme Court in Mills barred a “second prosecution and imposition of sentence.” 447 Pa. at 171, 286 A.2d at 642 (emphasis added). The instant case is distinguishable from Mills, however, since the Commonwealth’s proceedings against appellants were not the “second prosecution.” See our discussion supra.

Moreover, it is well-established that a defendant has a right to be free from twice being put in jeopardy for the “same offense.” Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978). In the present case, appellants pleaded guilty to, and subsequently were sentenced for, different offenses in state and federal court. In state court, appellant-Valentin was sentenced for delivery of a controlled substance (35 Pa.S.A. § 780-113(a)(l)) whereas the federal court sentenced appellant-Valentin for conspiracy involving drug-related activities (21 U.S.C.A. § 846). Appellant-Ramirez was sentenced in state court for delivery of a controlled substance (35 Pa.S.A. § 780-113(a)(l)), and for possession of a controlled substance in federal court (21 U.S. C.A. § 841(a)(1)). The offenses appellants were sentenced for in federal court were separate and distinct from the offenses appellants subsequently were sentenced for in state court. We, consequently, find that appellants’ sentences in state court were not barred under the double jeopardy clause since appellants were not sentenced twice for the “same offense.”

Judgments of sentence affirmed.

      . In addition, appellants argue that the trial court erred by imposing sentences outside of the sentencing guidelines. We do not reach the merits of this contention since appellants are challenging a discretionary aspect of their sentences.
      Appellants pleaded guilty before the court of common pleas. A plea of guilty constitutes a waiver of all defects and defenses except those concerning the jurisdiction of the court, legality of the sentence, and validity of the plea. Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982).

      . Appellants’ contention that their sentences were barred either by Section 111 of the Crimes Code or on the constitutional ground of double jeopardy, is a challenge to the legality of the sentences. Accordingly, this issue is properly before us for review.

      . In Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), our Supreme Court explained:
      Section 109 addresses prosecutions barred by a former prosecution for the same offense; Section 110 sets forth conditions when a prosecution is barred by a former prosecution for a different offense; Section 111 describes the situation when a prosecution would be barred by a former prosecution in a foreign jurisdiction; and Section 112 provides qualifications on Sections 109-111 where the former prosecution was before a court lacking personal or subject matter jurisdiction, was procured fraudulently by the defendant, or where the proceeding which produced the conviction was ultimately held invalid.

        Id., 506 Pa. at 506 n. 6, 486 A.2d at 366 n. 6.

      . In state court, appellant-Ramirez also pleaded guilty to, and subsequently was sentenced for, possession of a controlled substance. Appellant’s notice of appeal and other relevant documents before this Court, however, fail to indicate that appellant appealed from the term of probation which was imposed upon him by the trial court for possession of a controlled substance (trial court docket No. 501 CA 1985). The only trial court docket number which appears on the relevant documents before this Court is No. 183 CA 1985 (delivery of a controlled substance).


text:
    533 A.2d 120
    COMMONWEALTH of Pennsylvania, Appellee, v. Edward S. KYLE, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1987.
    Filed Oct. 20, 1987.
    Petition for Allowance of Appeal Denied April 5,1988.

      William J. Miele, Assistant Public Defender, Williams-port, for appellant.
    Kenneth Osokow, Assistant District Attorney, Williams-port, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

This is a direct appeal from a judgment of sentence imposed following appellant’s conviction by a jury. The trial and conviction stemmed from an attack on the female proprietor of a sewing goods store. As the victim was working alone in the shop, an assailant entered the store and, forcing her at knife point to enter the storeroom, he bound her with rope. The victim was then physically and sexually assaulted. Appellant was subsequently arrested and charged with numerous offenses arising from the attack. After a three-day trial, he was found guilty of rape, robbery, indecent assault, involuntary deviate sexual intercourse, and other related offenses. Post-verdict motions were filed and denied, and sentence imposed. Appellant now raises five claims of trial error for our review. Finding no merit to any of these claims, we affirm the judgment of sentence.

I.

At trial, appellant testified on his own behalf, presenting an alibi defense. Following his testimony, the Commonwealth read into evidence a stipulation as to his prior convictions for robbery, burglary, and theft. By introducing such evidence, the Commonwealth intended to cast doubt on appellant’s credibility. Appellant first contends the court erred in permitting the Commonwealth to use his prior convictions for impeachment purposes.

In determining the admissibility of prior convictions, our courts have relied upon the rules of Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). Our Supreme Court has, however, recently modified the rules of Bighum and Roots. In Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), the Court noted that those cases have proven to be less than effective in guiding the courts and the litigants as to the admissibility of prior conviction evidence. Consequently, the Supreme Court determined that the relevant Federal Rule of Evidence, Fed.R. Evid. 609(a)(1), (2), offered more concrete guidelines for the admission of prior convictions. Borrowing from the language of the federal rule, the Court held:

[Wjhile we do not adopt the federal rule per se we do modify our current rule to the following extent: evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Randall, 515 Pa. at 415, 528 A.2d at 1328-1329.

Under the rule announced in Randall, appellant’s prior convictions were admissible as impeachment evidence. Each of the convictions in question—robbery, burglary, and theft—reflect on appellant’s veracity. See Randall, 515 Pa. 410, 528 A.2d 1326 (burglary); Commonwealth v. Henderson, 497 Pa. 23, 35, 438 A.2d 951, 957 (1981) (theft and robbery). None of the prior convictions occurred more than ten years before appellant’s trial date (March 12, 1986) since appellant was convicted of theft and burglary in 1977 and of robbery in 1985. Consequently, the court properly permitted the Commonwealth to introduce the prior convictions into evidence.

II.

Appellant’s second claim of error raises a difficult question regarding privileged communications between psychologist and client. Subsequent to the attack, the victim received counseling from Dr. John Kelsey, a licensed clinical psychologist. In an effort to determine the substance of any statements made by the victim and to prepare a defense strategy, defense counsel made pre-trial requests to inspect Dr. Kelsey’s file or, in the alternative, to permit an in-camera review of the file. The trial court determined that Dr. Kelsey’s records were privileged communications pursuant to 42 Pa.C.S.A. § 5944 and, consequently, denied the defense requests. Appellant maintains that the failure to disclose the contents of the file denied him the rights guaranteed by the Confrontation Clause of the Sixth Amendment of the United States Constitution.

A.

The confrontation clause guarantees an accused the right “to be confronted with the witness against him; [and] to have compulsory process for obtaining witnesses in his favor.” U.S. Const. Amend. VI. In essence, that clause protects two rights: the right to confront one’s accusers and the right to cross-examine witnesses. Delaware v. Fensterer, 474 U.S. 15, 18, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (per curiam). Nothing in the record indicates that appellant was denied the right to physically confront his accusers; appellant was neither excluded from the trial nor deprived of the right to confront the declarant of a hearsay statement. See Id. See also Pennsylvania v. Ritchie, — U.S. —, —, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987) (defining scope of the right). Rather, appellant’s claim that he was denied access to arguably useful information raises a question regarding appellant’s sixth amendment right to the cross-examination of the witness. See Ritchie, — U.S. at —, 107 S.Ct. at 998.

The Supreme Court of the United States has only recently examined the applicability of the sixth amendment to a situation where access to information is precluded pursuant to a statutory privilege. In Pennsylvania v. Ritchie, supra, the defendant was charged with various sex offenses arising out of an assault on his minor daughter. Following the assault, the matter was referred to the Children and Youth Services (CYS), a protective service agency which investigates such cases. Ritchie sought pre-trial access to the CYS file in order to develop a defense strategy. CYS refused to comply with Ritchie’s request, claiming the records were confidential communications pursuant to the statutory privilege provided by 11 Pa.S.A. § 2215. The trial judge refused to order disclosure. On appeal, the Superior Court and the Supreme Court disagreed, finding that the trial court’s order denying access pursuant to Section. 2214 violated the accused’s rights guaranteed by the confrontation clause. Ritchie, — U.S. at —, 107 S.Ct. at 995-996.

The United States Supreme Court disagreed with our appellate courts. Speaking for a plurality of the Court, Justice Powell made clear that the confrontation clause of the sixth amendment was a trial right, not a “constitutionally compelled rule of pretrial discovery.” Ritchie, — U.S. at —, 107 S.Ct. at 999. “In short, the Confrontation Clause only guarantees 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Ritchie, — U.S. at —, 107 S.Ct. at 999 (emphasis in original), quoting, Delaware v. Fensterer, 474 U.S. at 19, 106 S.Ct. at 295. Given that defense counsel was able to fully cross-examine the victim, withholding the CYS file did not deny Ritchie his right to cross-examination. Ritchie, — U.S. at —, 107 S.Ct. at 1000.

We recognize that the confrontation clause analysis in Ritchie commanded only a plurality of the Court. Though, regrettably, the Court could not issue a majority opinion for our guidance on this important issue, we consider the analysis of the plurality principled and persuasive. It is this Court’s opinion, then, that the right to cross-examine witnesses is a trial right which, consequently, does not require the pre-trial disclosure of any information which may be useful in preparing for trial or in attacking trial testimony.

Applying this rule to the case at hand, appellant’s right of cross-examination was not violated by the denial of access to the psychologist’s file. The principal witness for the Commonwealth was the eyewitness to the assault, the victim. As in Ritchie, appellant’s trial counsel was not prevented from conducting cross-examination of that, or of any other, trial witness. Indeed, a review of the transcript reveals that during the cross-examination of the victim, defense counsel was able to call into question the witness’s memory and perception of the assault. Given that defense counsel employed the opportunity to fully cross-examine the trial testimony, particularly that of the victim, appellant was not denied his right to cross-examination as guaranteed by the sixth amendment.

B.

1.

This is not to say, however, that a preclusion of a defendant’s access to pre-trial information is immune from constitutional review. A majority of the Supreme Court in Ritchie made clear that where an accused raises a claim based upon the inability to obtain pre-trial information, the Due Process Clause of the Fourteenth Amendment provides the proper framework for analysis. Ritchie, — U.S. at —, 107 S.Ct. at 1001. Specifically, the Court referred to the due process protection afforded an accused to obtain “material” evidence in the possession of the Commonwealth. Id., citing, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). In Ritchie, however, the Supreme Court was unable to determine the materiality of the CYS file because it had not been reviewed by the defendant, the Commonwealth, or the trial court. Ritchie, — U.S. at —, 107 S.Ct. at 1002. More importantly for our purposes, the Supreme Court reasoned that the qualified statutory privilege of § 2215 did not prevent the trial court from determining whether the information in the file was material evidence under Brady. Id.

Although our disposition of this matter would be controlled by the due process analysis referred by the majority in Ritchie, it is at this point that we diverge from that case. Unlike the statutory conditional privilege at issue in Ritchie, the Pennsylvania law in this case grants an absolute privilege for communications between a licensed psychologist and a client. We are, therefore, presented with a situation where the interests of the accused in learning of favorable witnesses as well as obtaining arguably useful information directly conflicts with society’s interest in maintaining confidentiality between a psychologist and a client. Although we are without clear guidelines as to the means of accommodating these interests, the Ritchie decision teaches that the rights of an accused are not without limitations. In Ritchie, the Court noted that the public interest in protecting the CYS file was “strong.” Because the statutory conditional privilege did not preclude all use of such information, however, the Court concluded that any material information in the file could be disclosed. Ritchie, — U.S. at —, 107 S.Ct. at 1002. Based upon this reasoning, we conclude that a compelling public interest would justify the total non-disclosure of information. We must, therefore, determine whether a compelling public interest supports the psychologist-client privilege provided in Section 5944.

2.

In enacting Section 5944, the legislature made no exceptions for disclosure. Indeed, the legislative intent as stated in Section 5944 could not be clearer: the privilege established is the embodiment of a strong public policy favoring an absolute privilege from disclosure. That such a result was intended is supported by the language of Section 5944 which expressly provides that the psychologist-client privilege is modeled after the attorney-client privilege, an absolute privilege which has been repeatedly sustained under constitutional attack. See Commonwealth v. Sims, 513 Pa. 366, 373, 521 A.2d 391, 395 (1987) (sixth amendment right of confrontation did not abrogate attorney-client privilege); citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983) (same). See also In re Search Warrant B-21778, 513 Pa. 429, 521 A.2d 422, 428 (1987) (noting the “time honored” attorney-client privilege). Like the attorney-client privilege, the psychologist-client privilege protects an interest extrinsic from the truth-finding process. The rationale for the psychologist-client privilege was cogently stated in an Advisory Committee Note to Proposed Federal Rule of Evidence 504:

Among physicians, the psychiatrist has a special need to maintain confidentiality. His capacity to help his patients is completely dependent upon their willingness and ability to talk freely. This makes it difficult if not impossible for him to function without being able to assure his patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ..., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. The relationship may well be likened to that of the priest-penitent or the lawyer-client. Psychiatrists not only explore the very depths of their patients’ conscious, but their unconscious feelings and attitudes as well. Therapeutic effectiveness necessitates going beyond a patient’s awareness and, in order to do this, it must be possible to communicate freely. A threat to secrecy blocks successful treatment.

Report No. 45, Group for the Advancement of Psychiatry 92 (1960), quoted in Advisory Committee’s Notes to Proposed Rules, 56 F.R.D. at 242. Similarly, the District of Columbia Circuit Court explained in an oft-quoted statement:

The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. * * * It would be too much to expect them to do so if they knew that all they say—and all that the psychiatrist learns from what they say—may be revealed to the whole world from a witness stand.

Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955), quoting, Guttmacher and Weihofen, Psychiatry and the Law 272 (1952). See Commonwealth ex rel. Platt v. Platt, 266 Pa.Super. 276, 304, 404 A.2d 410, 425 (1979) (Spaeth, J., concurring and dissenting) (“General agreement exists in the legal and medical worlds that confidentiality of communications between patients and therapists is the sine qua non of successful psychiatric treatment.”).

As these comments indicate, patient confidence is essential for effective treatment. Because the information revealed by the patient is extremely personal, the threat of disclosure to outsiders may cause the patient to hesitate or even refrain from seeking treatment. The privilege thus serves the public interest in promoting a society in which the general well-being of the citizenry is protected. We find that this public interest is especially compelling where, as here, the victim of a crime has sought post-assault treatment knowing that her testimony would be a necessary part of the prosecution’s case. Indeed, the fact that the legislature determined confidential information was inadmissible as evidence under the statutory privilege demonstrates a recognition of this public policy consideration. See 81 Am.Jr.2d Witness § 281 (1976). See generally An-not. 44 A.L.R.3d 24 Privilege in Judicial and Quasi-Judicial Proceedings Arising from Relationships Between Psychiatrist or Psychologist and Patient (1972). In doing so, the Commonwealth—like virtually every other state—effectuated a means whereby the goal of effective treatment would not be impaired.

The statutory privilege for psychologists and clients also serves to protect another interest as well: the privacy interest of the client. Given the extremely personal nature of the information passed and the confidential relationship in which the information was shared, compelled disclosure in court would make public the client’s innermost thoughts. This privacy interest is not without significance. Indeed, it has been suggested that the privacy interest of the client may have constitutional underpinnings. In In re B., 482 Pa. 471, 394 A.2d 419 (1978), a plurality of the Pennsylvania Supreme Court concluded that a client’s interest in keeping confidential psycotherapeutic communications was a constitutionally protected interest. In re B., 482 Pa. at 484, 394 A.2d at 425. See Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 513, 444 A.2d 1299, 1301 (1982) (in accord with In re B., access to records of patient’s psychiatric history was an impermissible invasion of privacy). Cf Fischer v. Commonwealth Department of Public Welfare, 85 Pa.Commw. 240, 260-262, 482 A.2d 1148, 1159-1160 (1984) (declaring that the provisions of the Public Welfare Code requiring a victim of a sexual offense report the crime within a specified time period were violative of the victim’s right to privacy as guaranteed by the Pennsylvania Constitution). More recently, several members of our Supreme Court have acknowledged that the statutory physician-patient privilege has a constitutional basis. Writing for three members of the Court in In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980), Chief Justice Eagen stated:

Based on Mr. Justice Manderino’s opinion in In re B., supra, [appellant] asserts the physician-patient privilege is broader than the statutory provision, being rooted in the right to privacy guaranteed by both the United States Constitution and the Pennsylvania Constitution. While its sources and limits may be disputed, there can be no doubt that the United States Constitution guarantees a right to privacy. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Cases concerned with the constitutional protection of privacy “have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1976) (footnotes omitted).

Clearly, the privacy interest of the patients which is implicated under the instant set of facts is the interest in avoiding disclosure of personal matters. This privacy interest finds explicit protection in the Pennsylvania Constitution., Art. 1, § 1, which provides, in pertinent part: “All men ... have certain inherent and indefeasible rights, among which are those ... of acquiring, possessing, and protecting property and reputation____” Disclosure of confidences made by a patient to a physician, or even of medical data concerning the individual patient could, under certain circumstances, pose such a serious threat to a patient’s right not to have personal matters revealed that it would be impermissible under either the United States Constitution or the Pennsylvania Constitution.

Id., 490 Pa. at 149-151, 415 A.2d at 77-78 (Eagen, C.J., joined by O’Brien and Kauffman, JJ.) (footnotes omitted). Nonetheless, under the facts of that case, the members of the Court found no constitutional violation. Id. 490 Pa. at 151, 415 A.2d at 78. Both dissenters, Justice Larsen and Justice Flaherty agreed, however, that the privacy interest at issue was constitutionally protected. Id., 490 Pa. at 153-155, 415 A.2d at 79-80 (Larsen, J., and Flaherty, J., dissenting). See In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981) (three members of the Court—Chief Justice O’Brien, Justice Flaherty, and Justice Larsen—would find that a constitutionally protected right to privacy forms the basis of a counselor-patient privilege).

We have no doubt that the public interest in protecting a client’s privacy interest under such circumstances is particularly important. Whether or not that privacy interest is constitutionally protected, it is still desirable as a matter of social policy to recognize and protect this interest as it is reflected in the statutory psychologist-client privilege.

It is, thus, beyond question that the public interest is served by encouraging clients to seek treatment. The privilege afforded by § 5944 was intended to inspire confidence in the client and to encourage full disclosure to the psychologist. By preventing the latter from making public any information which would result in humiliation, embarrassment or disgrace to the client, the privilege is designed to promote effective treatment and to insulate the client’s private thoughts from public disclosure.

The issue to be decided, however, is whether the public interests supporting the psychologist-client privilege outweigh an accused’s interest in reviewing arguably useful information protected by the privilege. Our research reveals few cases in which this issue was addressed. In People v. District Court of Denver, 719 P.2d 722 (Colo. 1986), the statutory privilege was, as here, designed to protect confidential communications between a psychologist and a patient. Acting upon an objection to the production of the victim’s treatment records, the trial court found the privilege applicable but held that the accused’s constitutional right to confrontation outweighed the statutory privilege. Id. at 724. The trial court then ordered an in camera review of the records to determine what relevant information could be released. On appeal to the Supreme Court of Colorado, that Court reviewed the relevant case law, noting that the defendant’s constitutional rights to confront and cross-examine adverse witnesses was not absolute. Id. at 726. In reversing the order of the trial court, the Court stated:

There is a strong public policy interest in encouraging victims of sexual assaults to obtain meaningful psychotherapy. The defendant’s constitutional right to confrontation is not so pervasive as to to [sic] place sexual assault victims in the untenable position of requiring them to choose whether to testify against an assailant or retain the statutory right of confidentiality in post-assault psychotherapy records. Accordingly, we conclude that where, as here, the victim has not waived the privilege afforded her ..., the defendant is not entitled to examine the victim’s post-assault psychotherapy records or to have the trial court review such records in camera on the basis that the records might possibly reveal statements of fact that differ from the anticipated testimony of the victim at trial.

Id. at 727. The reasoning used by the Supreme Court of Colorado in District Court has been adopted by an appellate court of Illinois. See People v. Foggy, 149 Ill.App.3d 599, 102 Ill.Dec. 925, 500 N.E.2d 1026 (1986) (defendant’s constitutional right of confrontation must yield to absolute privilege between rape counselor-victim).

Other courts have held that the statutory privilege must yield under such circumstances. The decision by the Supreme Court of Connecticut in State v. Whitaker, 202 Conn. 259, 520 A.2d 1018 (1987), illustrates this approach:

The crux of the defendant’s argument on appeal is that his right to search for truth in defending himself should supersede the interest of the rape crisis service and the victim in maintaining confidentiality. We addressed this very issue in In re Robert H., 199 Conn. 693, 509 A.2d 475 (1986), which was published subsequent to the trial court’s ruling on the present motion to quash. In that case, we particularized a procedure, developed in our prior decisions; see State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985); State v. Esposito, supra [192 Conn. 166, 471 A.2d 949 (1984) ]; which protects a victim’s statutory right to confidentiality while simultaneously safeguarding a defendant’s constitutional right effectively to cross-examine the victim. In re Robert H., supra, 199 Conn, at 708-709, 509 A.2d 475. Under that procedure, a claim of privilege may be countered by a showing that “ ‘there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken.’ ” Id., at 708, 509 A.2d 475. If such a showing is made and the consent of the witness is secured, the court may conduct an in camera inspection of the information.
This inspection, in the context of the sexual assault counselor privilege, is not limited to merely “relevant material.” The court may also look for “any inconsistent and relevant statements of the victim in the records when compared with the victim’s direct examination.” Id. at 709, 509 A.2d 475. In the event the inspection does not reveal such material, the record shall be sealed and made available for appellate review. If the court finds relevant material, however, the witness must choose between consenting to the release of the material or having her testimony stricken. See Id. at 708-10, 509 A.2d 475; State v. Bruno, supra, 197 Conn. at 329, 497 A.2d 758; State v. Esposito, supra, 192 Conn. at 179-80, 471 A.2d 949.

State v. Whitaker, 202 Conn, at 271-272, 520 A.2d at 1025. See Bobo v. State, 256 Ga. 357, 349 S.E.2d 690 (1986) (upon a showing of necessity, the accused may gain access to privileged information); State v. McBride, 213 N.J.Super. 255, 270, 517 A.2d 152, 159 (1986) (although psychologist-patient privilege was co-extensive with attorney-client privilege, it may be defeated in the interest of fairness); State v. Farrow, 116 N.H. 731, 366 A.2d 1177 (1976) (defendant’s right to confrontation required limited use of information protected by doctor/psychologist-patient privilege).

Having reviewed the language of the statutory privilege enacted by our legislature and having given consideration to the public policies underlying the absolute privilege as well as the relevant cases in this and other jurisdictions, we find that the interests protected by the privilege are substantial. We are, of course, cognizant of the heavy weight afforded to appellant’s interest in disclosure of the victim’s file. Nonetheless, in weighing the public interests protected by shielding the file with those advanced by disclosure, we conclude that the balance tips in favor of non-disclosure. Nor do we believe that our decision today will unduly infringe on the rights of the accused. First, we note that as a matter of constitutional law, our courts have upheld testimonial privileges which bar a criminal defendant from obtaining or using confidential communications. See Washington v. Texas, 388 U.S. 14, 23 n. 21, 87 S.Ct. 1920, 1925 n. 21, 18 L.Ed.2d 1019 (1967); Commonwealth v. Sims, 513 Pa. 366, 521 A.2d 391, 395 (1987). Here, the privilege only limits access to statements made during the course of treatment by the psychologist. It does not foreclose all lines of defense questioning. Likewise, the privilege does not unfairly place the defense in a disadvantageous position; like the defense, the prosecution does not have access to the confidential file and, thus, cannot use the information to make its case.

Appellant argues, however, that precluding defense access to the victim’s files would conflict with the decisions of our appellate courts in In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981) (PAAR), and Adoption of Embrick, 351 Pa.Super. 491, 506 A.2d 455 (1986), app. denied, 513 Pa. 634, 520 A.2d 1385 (1987). We find that those cases are not inapposite.

In PAAR the Pennsylvania Supreme Court declined to expand a common law privilege to include communications between a rape crisis counselor and a victim. The PAAR Court was unpersuaded by the argument that no functional distinction existed between a psychotherapist and client relationship (which was legally protected), and the relationship involving PAAR personnel and the rape victim. PAAR, 494 Pa. at 24 n. 2, 428 A.2d at 130 n. 2. Consequently, the Court determined that the absolute privilege for psychotherapist-patient communications did not apply. Id. In the present case, the confidential relationship between Dr. Kelsey and the victim is, beyond question, within the scope of protection afforded to psychologist and patient.

Appellant’s reliance on Embrick is also misplaced. In that case, a psychologist was permitted to testify at a parental termination hearing even though she had examined the child and both parents. On appeal, the minor’s parents claimed the testimony was admitted in violation of the psychologist-client privilege established by 42 Pa.C.S.A. § 5944. For several reasons, this Court refused to recognize the privilege. First, since the parents were examined by the psychologist at the request of the Children and Youth Agency and not because they sought counseling or treatment, they were not “clients” within the scope of the privilege. Second, the parents knew that the psychologist would make a report to the Agency or to the court, and thus, could have had no expectations that the communications were confidential. Third, the nature of a parental termination hearing required that the court conduct a full and comprehensive hearing and render a decision after having taken into consideration all evidentiary resources. Fourth, even if a psychologist-client relationship existed, the public interest in reaching a correct decision regarding termination of parental rights outweighed the injury to the confidential relationship. Embrick, 351 Pa.Super. at 499-501, 506 A.2d at 460-461. Consequently, this Court upheld the decision to permit the psychologist to testify. Embrick, 351 Pa.Super. at 503, 506 A.2d at 462.

The rationale of the Embrick Court renders that case easily distinguishable from the one at hand. Here, because the victim sought psychological counseling treatment subsequent to the assault and solely for the purpose of treatment, she was a “client” within the meaning of the statutory privilege. In addition, the relationship between the psychologist and the victim was initiated and continued in an aura of confidentiality. Further, the victim’s mental condition was not at issue in the case and was irrelevant to the determination. Finally, unlike Embrick where the public interests weighed against the invocation of the privilege, public policy considerations favor nondisclosure in this case.

Finally, appellant argues that without even an in camera inspection of the file by the court, it cannot be determined whether any statements made by the victim would be helpful to the defense. We decline to compromise what we have determined is an absolute privilege from disclosure. As we noted above, the purpose of the psychologist-client privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure. We deem this purpose and the underlying considerations to be of paramount concern. Subjecting the confidential file to in camera review by the trial court (as well as the appellate courts and staff members) would jeopardize the treatment process and undermine the public interests supporting the privilege. Simply stated, an absolute privilege of this type and in these circumstances requires absolute confidentiality.

We conclude, therefore, that under these circumstances, the trial court acted properly in refusing the defense access to the arguably useful information in the psychologist’s file.

III.

Appellant contends the lower court improperly refused to suppress the victim’s identification testimony. Specifically, he argues that the two photographic arrays and the pre-trial lineup were unduly suggestive.

Upon review of a challenge to pre-trial identification procedures, we must determine whether those procedures were so suggestive and thus, unreliable, that a mistaken identification was the necessary result. Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987). In determining the reliability of the identification, the following factors are considered:

... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), quoted in, Commonwealth v. Sample, 321 Pa.Super. 457, 461, 468 A.2d 799, 801 (1983). In applying the test “we are to consider only the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Cavalieri, 336 Pa.Super. 252, 254-255, 485 A.2d 790, 791 (1984).

In the opinion denying the motion to suppress the photo array identifications, the suppression court reviewed the facts supporting a finding of reliability. The victim had viewed her assailant for about fifteen minutes in fairly well-lit rooms. Given the nature of the sexual attack, the victim had an opportunity to view the attacker at close range. In fact, the victim stated that she looked into her assailant’s face during the attack and concentrated on his characteristics because “I wanted to always remember exactly what he looked like so that I could recognize him anywhere at anytime.” (Notes of suppression hearing 1/23/86 at 13). Two months after the assault, the victim identified appellant as her assailant by selecting his photograph from an array of 21 photographs. All of the photos were of male Caucasians and half of the subjects wore glasses. We agree with the suppression court that nothing in this first photo array could have suggested that appellant was the assailant.

Nonetheless, appellant maintains that the first photo array should have been suppressed because his photo did not match the victim’s initial description of the assailant given to the police. In our view, appellant confuses the question of credibility with a claim of undue suggestiveness. It was the duty of the suppression court to assess the alleged contradiction between the victim’s identifications. “The scope of our review is limited to determining whether the factual findings of the court in the suppression hearing are supported by the record, and whether the conclusions of law drawn therefrom are correct.” Commonwealth v. Scaine, 337 Pa.Super. 72, 76, 486 A.2d 486, 488 (1984).

Appellant also claims the second photo array was unduly suggestive. That photo array, which contained all of the photographs from the first array except for appellant’s photo, was shown to the victim nine months after the initial identification. The victim did not identify any of the individuals in the second array. In our judgment, the second photo array could not have denied appellant his due process rights since the victim did not even make an identification at that time.

Appellant’s final claim is a similar challenge to the third identification. On August 22, 1985, eleven months after the initial identification, the victim identified appellant at a police lineup. Appellant asserts that the identification should have been suppressed because none of the participants in the lineup except for appellant matched the victim’s description of the assailant. We agree with the suppression court that nothing about the lineup was unduly suggestive.

Having determined that there was no error in the pre-trial identification procedures, it follows that we must also reject appellant’s claim that the victim’s in-court identification was tainted by the pre-trial identifications. See Commonwealth v. Thomas, 363 Pa.Super. at 352-353, 526 A.2d at 381, 382.

IV.

In appellant’s next challenge, he asserts that he was prejudiced by misconduct on the part of the prosecution. During the investigation of the assault, the police interviewed a witness, Ms. Janet Jones. According to defense counsel, the witness had seen the assailant at the scene of the crime and had given the police a physical description. Appellant now claims that the Commonwealth failed to disclose Ms. Jones’s alleged statement to the police, thus causing irreparable prejudice.

Assuming without deciding that the Commonwealth was obliged to make the information available to the defense, for two reasons, we cannot agree with appellant’s contention. First, it is undisputed that the witness was listed in the police report which was made available to defense counsel during discovery. It appears, however, that her name was inadvertently given in the report as both “Janet Jones” and “Janet Nelson”. Such an oversight is not tantamount to prosecutorial misconduct in appellant’s case. Although appellant may have had difficulty in locating the witness, we note that the Commonwealth was also unable to find the witness until shortly before trial. (N.T. 3/13/86 at 6, 3/14/86 at 142-143). Upon locating the witness, defense counsel admits that he was notified by the Commonwealth of her whereabouts and had an opportunity to interview her. Id.

Second, and more significantly, appellant could not have been prejudiced by the Commonwealth’s alleged failure to disclose the information. Not only did appellant contact Ms. Jones prior to trial, but the witness was also called to testify for the defense. Further, the witness’s testimony was virtually identical to that which defense counsel claims was withheld prior to trial. Contrary to appellant’s claim that the witness suffered a memory lapse during her testimony, she was responsive to all questions posed by defense counsel. (N.T. 3/13/86 at 139-144). For these reasons, we reject appellant’s claim of prosecutorial misconduct and prejudice.

Y.

Appellant’s final issue challenges the trial court’s denial of a requested jury instruction. The basis of this claim is the inconsistency between the victim’s description of the assailant to the police and her subsequent trial testimony. Because the initial description did not match appellant’s physical features, defense counsel requested the following instruction:

A victim or other witness can sometimes made [sic] mistakes when trying to identify the criminal. If certain factors are present, the accuracy of identification testimony is so doubtful that a jury must receive it with caution if the witness’ positive testimony as to identity is weakened by inconsistencies in the rest of his testimony. Second Alternative (When there is jury issue as to whether caution is required)—If you believe that this factor is present, then you must consider with caution the testimony of [the victim] identifying the defendant as the person who committed the crime. If, however, you do not believe that this factor is present, then you need not receive the testimony with caution; you may treat it like ordinary testimony, as a statement of fact.

Brief for appellant at 30 (emphasis added).

A trial court is not required to accept the jury instruction submitted by counsel. See Commonwealth v. Smith, 511 Pa. 343, 354, 513 A.2d 1371, 1377 (1986), cert. denied, — U.S. —, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). So long as the court’s charge fully and adequately explained the relevant legal principles which apply to the evidence presented at trial, the charge is correct. See Commonwealth v. Coleman, 344 Pa.Super. 481, 484, 496 A.2d 1207, 1209 (1985).

We agree with the trial court that the proffered instruction was inapplicable and improper. As the underscored language of the proposed charge indicates, that instruction requires inconsistencies within the witness’s own testimony. Here, the victim’s testimony was not inconsistent; the inconsistency existed between the victim’s prior non-testimonial statement to the police and her trial testimony. The court, therefore, was correct in rejecting the proposed instruction.

Moreover, the court did not ignore the identification issue but, instead, charged the jury as follows:

The Defendant also challenges the identification of the himself as the assailant in this case. In her testimony, [the victim] has identified the Defendant as the person who committed the crime. The accuracy of her identification of the Defendant is disputed. You should consider all of the evidence relevant to the question of who committed the crime including the testimony of the witnesses and particularly [the victim] and Mrs. Jones, and any evidence of facts or circumstances from which identity or non-identity of the criminal may be inferred. You cannot find the Defendant guilty unless your are satisfied beyond a reasonable doubt by all the evidence, direct and circumstantial, not only that the crime was committed but that it was the Defendant who committed it.

(N.T. 3/14/86 at 210-211).

We are satisfied that this charge adequately addressed the disputed identification issue.

VI.

Having found no basis for appellant’s claims of error, we affirm the judgment of sentence.

      . Section 5944 provides:
      § 5944. Confidential communications to licensed psychologists
      No person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.
      163 P.S. § 1201 et seq.
      42 Pa.C.S.A. § 5944 (Purdon 1982) (footnote in original).

      . The Confrontation Clause is made applicable to the states by the Fourteenth Amendment of the United States Constitution. Pointer v. Texas, 380 U.S. 400, 403-406, 85 S.Ct. 1065, 1067-1069, 13 L.Ed.2d 923 (1965).

      . The relevant portion of Section 2215 provides:
      (a) Except as provided in section 14 [11 Pa.C.S.A. § 2214 (Purdon Supp.1987) ], 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 of competent jurisdiction pursuant to a court order.
      11 Pa.S.A. § 2215(a)(5) (Purdon Supp.1987).

      . Under circumstances similar to those in Ritchie, this Court has concluded that the plurality decision in Ritchie is controlling. See Commonwealth v. Lloyd, 367 Pa.Super. 139, 146, 532 A.2d 828, 831-832 (1987).

      . There is no question here that Dr. Kelsey is a licensed psychologist and that the information in his file was obtained through counseling and treatment of victim.

      . The need for such a privilege is widely recognized, see e.g., Ex Parte Rudder, 507 So.2d 411, 413 (Ala.1987); Bond v. District Court of the County of Denver, 682 P.2d 33, 38 (Colo.1984); State v. Miller, 300 Or. 203, 709 P.2d 225, 232 (1985); State ex rel. Juvenile Dept. of Clatsop County v. Martin, 271 Or. 603, 606 nn. 2, 3, 533 P.2d 780, 781 nn. 2, 3 (1975). See abo Knapp, VandeCreek and Zirkel, Privileged Communications for Psychotherapists in Pennsylvania: A Time for Statutory Reform, 60 Temp.L.Q. 267, 268-274 (1987); Developments in the Law—Privileged Communications, 98 Harv.L.Rev. 1450, 1512-1548 (1985); Slovenko, Psychiatry and a Second look at the Medical Privilege, 6 Wayne L.Rev. 175 (1960).

      . Proposed Fed.R.Evid. 504 would have established a psychologist-patient privilege. Although approved by the Supreme Court, Congress instead adopted a more broadly worded version, e.g., Fed.R.Evid. 501. The failure of Congress to accept proposed Rule 504 does not detract from the value or importance of the privilege. To the contrary, it was determined that the courts were best able to develop rules regarding privileges. See Trammel v. United States, 445 U.S. 40, 48, 100 S.Ct. 906, 911, 63 L.Ed.2d 186 (1980).

      . It has been suggested that the inability of a state’s citizens to obtain treatment of this type may preclude or impair them from exercising their fundamental freedoms. In re: Zuniga, 714 F.2d 632, 639 (6th Cir.1983), cert. denied, 464 U.S. 983, 104 S.Ct. 426, 78 L.Ed.2d 361 (1983).

      . Statutory protection for psychotherapist-patient communications exists in 49 states. See also Knapp, VandeCreek and Zirkel, Privileged Communications for Psychotherapists in Pennsylvania: A Time for Statutory Reform, 60 Temp.L.Q. 267, 275 (1987).

      . Other courts and commentators have recognized that the privacy interest of a patient seeking treatment is of constitutional dimension. See e.g., Caesar v. Mountanos, 542 F.2d 1064, 1064, 1067-1068 (9th Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 804 (1977); Hawaii Psychiatric Soc. District Branch of American Psychiatric

        Assoc. v. Ariyoshi, 481 F.Supp. 1028, 1045 (D.Hawaii 1979); Robinson v. Magovern, 83 F.R.D. 79, 90 n. 2, 91 (W.D.Pa.1979); Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955); In re Lifschutz, 2 Cal.3d 415, 431-432, 467 P.2d 557, 567, 85 Cal.Rptr. 829, 839 (1970). But see State ex rel. Pflaum v. State of Wisconsin Psychology Examining Bd., 111 Wis.2d 643, 331 N.W.2d 614, 616 (1983) (right to privacy limited to fundamental rights).

      . The decision of the Commonwealth Court was affirmed. Fischer v. Commonwealth Department of Public Welfare, 85 Pa.Commw. 240, 482 A.2d 1148 (1984), aff'd, 509 Pa. 293, 502 A.2d 114 (1985). The Commonwealth did not, however, appeal the issue regarding the reporting requirement.

      . Justice Roberts and present Chief Justice Nix concurred in the disposition of the case.

      . In response to the decision in PAAR, the Pennsylvania legislature enacted a statute providing for an absolute privilege for communications made to a rape crisis counselor, i.e., 42 Pa.C.S.A. § 5945.1. See Commonwealth v. Samuels 354 Pa.Super. 128, 139, 511 A.2d 221, 227 (1986).

      . For similar reasons, this Court has recently held that the statutory privilege of 42 Pa.C.S.A. § 5944 did not bar the admission of a parent’s psychological evaluation in a dependency proceeding. In re Bender, 366 Pa.Super. 450, 531 A.2d 504 (1987).

      . We note parenthetically that permitting an in camera review of information protected by the absolute privilege between psychologist and client could possibly render other absolute privileges subject to the same limitation.

      . Ms. Jones testified that the man she saw leaving the storeroom was between 40 and 50 years of age, unkempt, with lines in his face, had dark hair with some graying, and wore a cap.