Com. v. Alston

• Decision Date: 13 December 2004
• Citation: 864 A.2d 539
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Kevin ALSTON, Appellee.
• Court: Pennsylvania Superior Court

864 A.2d 539

COMMONWEALTH of Pennsylvania, Appellant v. Kevin ALSTON, Appellee.

Superior Court of Pennsylvania.

Submitted May 25, 2004.

Filed December 13, 2004.

Catherine L. Marshall, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Larry Feinstein, Philadelphia, for appellee.

Samuel H. Israel, Philadelphia, Amicus Curiae, for L.B.

Before: HUDOCK, JOYCE, MUSMANNO, KLEIN, BENDER, BOWES, GANTMAN, MCCAFFERY, and PANELLA, JJ.

OPINION BY BOWES, J:

¶ 1 The Commonwealth filed this appeal from a pretrial order containing three adverse rulings, and it challenges two of those rulings. Specifically, the Commonwealth questions the propriety of the trial court's conclusions that the Commonwealth must allow the defense access to notes taken during an interview with the victim and that the victim in this sexual assault case must undergo a psychiatric examination to assist in assessing her competency. Before addressing the merits of these two contentions, we must decide whether the Commonwealth has preserved the issues for appellate review and whether the appeal is properly before us. Upon review, we conclude that the Commonwealth has avoided waiver and this Court has jurisdiction over these issues. We reverse both rulings and remand for further proceedings.

¶ 2 On August 11, 2000, Appellee, Kevin Alston, was charged with rape, incest, involuntary deviate sexual intercourse, indecent exposure, sexual assault, indecent assault, statutory sexual assault, simple assault, recklessly endangering another person, endangering the welfare of children, and corrupting the morals of a minor. Appellee was accused of sexually abusing his biological daughter, L.B., between July 24 and 29, 2000. L.B., who was ten years old at the time, reported the molestation after her mother, A.B., picked up L.B. from Appellee's residence on July 30, 2000.

¶ 3 Prior to trial, both Appellee and the Commonwealth filed several motions in limine. On January 12, 2001, the trial court held a hearing and on April 16, 2001, entered a single order disposing of those motions. The trial court granted Appellee's motions to compel the Commonwealth to provide defense counsel with a copy of the notes of an interview of the victim conducted by the assistant district attorney, to have the victim undergo a psychiatric examination to be used in evaluating her competency, and to permit the defense to cross-examine the victim about her prior sexual assault accusations against two different individuals.

¶ 4 The trial court's ruling on the latter two matters was informed by the following facts:

Department of Human Services (DHS) records for [L.B.] show that she made prior accusations of sexual abuse against persons other than the Defendant. At age three (3), [L.B.] accused a school bus driver of touching her vagina. At age eight (8), she accused her maternal aunt's paramour of sexually molesting her. In regard to the latter alleged incident, a DHS child protective services worker noted in her report that the "child is not credible because she changed her story several times about how it happened." The same DHS worker further noted that all the cultures and exams in relation to this alleged incident were normal. Additionally, [L.B.'s mother] told a social worker that she believed her daughter was lying about the aunt's boyfriend.

Trial Court Opinion, 10/15/01, at 2-3.

¶ 5 The trial court concluded that the prior and potentially false allegations of sexual abuse warranted a searching inquiry into the victim's competency, including a psychiatric evaluation. The court did not interview the victim or make a competency determination but ordered a psychiatric evaluation to aid it in determining that issue. The court noted that it was unable to conclude that the past accusations were founded but "if they are a product of fabrication and fantasy, serious questions arise concerning her consciousness of the duty to speak the truth." Id. The court also ruled that Appellee would be permitted to cross-examine the victim about these past accusations and rejected the Commonwealth's position that the Rape Shield Law prohibited such cross-examination. This ruling is not at issue in this appeal. The Commonwealth thereafter filed this appeal.

¶ 6 On appeal, we consider: 1) whether the Commonwealth has avoided a finding of waiver of all issues on appeal by obtaining the inclusion of its Pa.R.A.P.1925(b) statement into the certified appellate record; 2) whether the rulings at issue can be appealed pursuant to the collateral order exception contained in Pa.R.A.P. 313; 3) whether the Commonwealth should have been ordered to reveal the notes of its interview with the victim; and 4) whether the victim was properly ordered to undergo a psychiatric examination.

I. Pa.R.A.P.1925(b) Statement

¶ 7 The facts concerning the Pa.R.A.P.1925(b) statement are rather convoluted. On September 6, 2001, the trial court issued an order requesting a Pa.R.A.P.1925(b) statement. The trial court apparently received the Commonwealth's statement the following day because the trial court indicates in its opinion, "A Statement of Matters Complained of on Appeal was filed on September 7, 2001." Trial Court Opinion, 10/15/01, at 2. However, the 1925(b) statement was not initially included in the certified record on appeal.

¶ 8 The Commonwealth filed its appeal on May 16, 2001. When the Commonwealth reviewed the docket entries, those entries did not reflect either the September 6, 2001 order to file a Pa.R.A.P.1925(b) statement or the Commonwealth's Statement of Matters Complained of on Appeal. Since the court order requiring the aforementioned statement was not reflected on the docket, the Commonwealth did not view as significant that its September 7, 2001 statement was likewise not included in the record. Those entries subsequently were updated by the court to reflect the filing of the September 6, 2001 order directing the Commonwealth to file a Pa.R.A.P.1925(b) statement. However, the Commonwealth was not aware of the change in the docket, and consequently took no steps to ensure that the record contained its September 7, 2001 Pa.R.A.P.1925(b) statement.

¶ 9 On February 19, 2003, a panel of this Court ruled that the Commonwealth had waived the issues on appeal because the record did not contain a Pa.R.A.P.1925(b) statement. See Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631 (2002) (Pa.R.A.P.1925 is to be strictly construed and Pa.R.A.P.1925(b) statement must be included in the certified record and a copy sent to the trial court in order for issues to be preserved on appeal).

¶ 10 The Commonwealth then filed a petition for reconsideration to the panel, explaining the Commonwealth's failure to include the statement in the record as detailed above. While requesting reconsideration, the Commonwealth simultaneously moved for correction of the record. Specifically, it obtained an order from the trial court dated March 4, 2003, and that order was transmitted to this Court as a supplemental record. The order states:

AND NOW, this 4th day of March, 2003, the omission from the record of the Commonwealth's Statement of Matters Complained of on Appeal is hereby corrected pursuant to Pa.R.A.P.1926; the Commonwealth's Statement of Matters Complained of on Appeal, which was filed on September 7, 2001, is hereby made a part of the certified Quarter Sessions File.

Order of Court, 3/4/03, at 1.

¶ 11 Based on these representations, panel reconsideration was granted, at which point the Pa.R.A.P.1925(b) statement was included in the record.¹ Thus, the certified record now contains the Pa.R.A.P.1925(b), and since the trial court had received a copy of that statement and issued an opinion addressing the issues contained therein, Butler no longer is implicated. Hence, we next consider the question of appealability.

II. Appealability of Rulings

¶ 12 We now address whether the Commonwealth can appeal the two pretrial rulings at issue as of right.² The Commonwealth invokes our jurisdiction pursuant to Pa.R.A.P. 313. The collateral order doctrine, now embodied in Pa.R.A.P. 313, has three elements and permits an appeal as of right from an interlocutory order 1) if the order is separable from and collateral to the underlying action; 2) if the question on appeal involves a right too important to be denied review; and 3) if review were to be postponed until after a final order was entered, the right would be irreparably lost. Gocial v. Independence Blue Cross, 827 A.2d 1216, 1220 (Pa.Super.2003); Pa.R.A.P. 313.

A. Notes of Interview

¶ 13 The Commonwealth argues that the trial court improperly rejected its assertion of the work-product doctrine when it issued its discovery order allowing the defense to review its notes of the prosecutor's interview with L.B. Our examination of the pertinent case law reveals that the collateral order exception uniformly has been applied when the appellant has asserted the existence of a privilege. Indeed, our Supreme Court's recent pronouncement in Commonwealth v. Dennis, ___ Pa. ___, 859 A.2d 1270 (2004), is controlling. At issue therein was whether a discovery order compelling the Commonwealth to produce to the defense notes taken during the jury selection process was appealable under Pa.R.A.P. 313. The defendant therein was asserting that the prosecutor exercised peremptory challenges to potential jurors in a racially-motivated manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Commonwealth argued that the notes were protected by the work-privilege doctrine and that the discovery order was a collateral order, thereby triggering jurisdiction of our appellate courts. Our Supreme Court accepted jurisdiction over the order based upon the Commonwealth's invocation of the collateral order doctrine.

¶ 14 Concluding that its prior decision in Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999), was analogous, the Supreme Court...