Com. v. Smith

• Decision Date: 24 April 1992
• Citation: 606 A.2d 939,414 Pa.Super. 208
• Parties: COMMONWEALTH of Pennsylvania v. Sean L. SMITH, Appellant.
• Court: Pennsylvania Superior Court

Page 939

606 A.2d 939

414 Pa.Super. 208

COMMONWEALTH of Pennsylvania v. Sean L. SMITH, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 22, 1991.

Filed April 24, 1992.

Floyd P. Jones, York, for appellant.

William H. Graff, Jr., Asst. Dist. Atty., York, for Com., appellee.

Before OLSZEWSKI, BECK and TAMILIA, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposed after Sean Smith was convicted of criminal conspiracy to deliver controlled substances. The jury acquitted Smith of the charges of possession of a controlled substance with intent to deliver and delivery of controlled substances. Timely post-verdict motions were filed and denied, and Smith was sentenced to a three-to-six-year term of imprisonment. This timely appeal followed.

On appeal, Smith raises six issues for our consideration. First, Smith contends that the trial court erred in failing to suppress evidence seized at his apartment. Second, he contends that the trial court erred in denying him access to the psychiatric records of a witness who testified against him. Third, Smith alleges error for the trial court's refusal to allow defense counsel to cross-examine that witness as to his history of psychiatric treatment. Fourth and fifth, Smith presents two allegations of error as to hearsay testimony which occurred at trial: first, that a mistrial should have been granted; second, that the curative instruction highlighted the hearsay testimony. Smith's final assertion of error is the trial court's failure to grant his motion for a directed verdict on the conspiracy charge. Finding merit to none of Smith's contentions of error at his trial, we affirm the judgment of sentence.

The relevant facts of this case may be summarized as follows. A confidential police informant purchased cocaine from Michael March. Following his apprehension, March told police he had purchased the drugs from Smith at Smith's apartment using the $4,100 which March had received from the informant, who in turn had received it from the police.

Trooper Voggenreiter proceeded to Smith's apartment while Trooper Kessler obtained a search warrant for the premises. At Smith's apartment, Voggenreiter observed a marijuana pipe in plain view on a table through an open doorway to the hall. In response to Voggenreiter's knock at the doorway, Smith came through another doorway, which was covered by a blanket, and then fled back to the separate room when Voggenreiter identified himself. The police secured the premises and arrested Smith. The premises were searched when Kessler arrived with a warrant. This search produced 1.1 grams of cocaine, two drug record books, mail addressed to Smith, Smith's wallet, and $11,450 from above the ceiling tiles. Among the money was the $4,100 in marked bills used by March to purchase the cocaine earlier that evening.

As to appellant's first allegation of error, we find no basis for suppression of the evidence seized because the premises were searched only after the presentation of a search warrant. (Suppression transcript [S.T.] of May 22, 1989, at 19.) Appellant's related allegation of error therefore fails.

Appellant's second allegation of error is controlled by a recent en banc decision by this Court. Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992). Smith attacks the trial court's refusal to allow him access to the psychiatric records of March, for the purpose of impeachment, and cites Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989), in support of his argument. Appellant argues that Lloyd entitles him to examine the privileged records of the witness, March. However, March's records were not in the possession of the Commonwealth; they were held at the facility where he was treated. No error lies in denying Smith access to these records, because they are absolutely privileged and shielded from discovery, absent the consent of the patient. ¹ At the time Lloyd was decided, the statutory protection now afforded to psychotherapeutic records was not in effect. Therefore, the Lloyd Court was not required to analyze whether the defendant's right to these records was subject to any restriction. In the interim, psychotherapeutic records have been afforded a privilege; this statutory protection directs our disposition of this issue.

Accordingly, in Kennedy, we held that where psychotherapeutic records are not in the prosecution's possession, and are subject to the protection of a statutorily enacted absolute privilege, a defendant's rights of confrontation and compulsory process are not violated by a denial of access to those records. In accordance with our disposition of this issue in Kennedy, we find no basis upon which to afford appellant relief pursuant to his second allegation of error. March's psychiatric records are statutorily protected and are not subject to discovery.

Appellant's third contention of error is that it was error to prohibit him from cross-examining March about his psychiatric treatment for impeachment purposes. The Commonwealth argues that Smith conceded that March was competent to testify and, therefore, cannot use March's psychiatric treatment as a basis for impeachment. We agree, finding that Smith waived any objection he may have harbored regarding March's testimony.

At appellant's suppression hearing, the court asked defense counsel whether he was requesting a hearing to determine March's competency to testify. Defense counsel stated he was not. (See S.T. at 8-9.) Upon conclusion of the suppression hearing, the court ruled on the Commonwealth's motion in limine, which requested that cross-examination on March's psychiatric treatment be barred. ² The court granted the Commonwealth's motion, for the reason that "there has been no showing or no attempted showing that the Commonwealth witness is incompetent to testify." (S.T. at 37-38.) The court then stated that any testimony or inquiry into March's competency was irrelevant. (S.T. at 38.) No objection was raised at that time by defense counsel.

More importantly, no objection was raised at trial. March testified and was cross-examined by appellant's counsel with no reference or objection to March's competency. Appellant's arguments notwithstanding, "this Court may not raise issues sua sponte which were not properly preserved in the trial court." Commonwealth v. Willis, 380 Pa.Super. 555, 580, 552 A.2d 682, 694 (1988). To preserve an issue for review, a party must make a timely and specific objection at trial, and "Superior Court will not consider a claim on appeal which was not called to the trial court's attention at a time when any error committed could have been corrected." Noecker v. Johns-Manville Corp., 355 Pa.Super. 463, 471, 513 A.2d 1014, 1018 (1986); DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 544 A.2d 1345 (1988); 42 Pa.C.S. § 227(1)(b); see also Commonwealth v. Bullock, 359 Pa.Super. 150, 518 A.2d 824 (1986) (holding that failure to object to an offer of evidence at the time the offer is made, assigning grounds for objection, is waiver upon appeal of any ground of complaint against admission). Our Supreme Court has explicitly stated that to preserve an issue for appellate review, an appellant must make a timely objection at the appropriate stage of the proceedings before the trial court, and must specifically raise the issue in post-trial motions. ³ Reilly by Reilly v. Southeastern pennsylvania Transportation Authority, 507 Pa. 204, 214, 489 A.2d 1291, 1296 (1985). Appellant has failed to preserve his objection to March's competency. We are therefore precluded from examining the substance of this allegation of error.

Even assuming in this case that we held appellant did not waive the issue of cross-examination on competency, we would decline to reverse the trial court's finding that March was competent to testify. This Court was held that "because a trial judge has a superior opportunity to assess the competency of a witness, an appellate court should virtually never reverse a competency ruling." Commonwealth v. Anderson, 381 Pa.Super. 1, 6, 552 A.2d 1064, 1067 (1988); Commonwealth v. Davis, 394 Pa.Super. 591, 596, 576 A.2d 1005, 1008 (1990). Therefore, the determination of a witness's competency to testify will not be disturbed on appeal unless there exists a clear abuse of discretion. Id. A "trial court need not order an investigation of a witness's competency, unless he or she has some doubt of such after having observed the witness." Commonwealth v. Fulton, 318 Pa.Super. 470, 484, 465 A.2d 650, 657 (1983). The trial judge in this case observed no evidence of incompetency and ruled March fit to testify. We would not reverse this finding.

As to the fourth and fifth allegations of error, we recognize that Trooper Voggenreiter's testimony did contain hearsay statements. (Trial transcript [T.T.] of May 22, 1989, at 54.) However, the mention of appellant's name by a co-offender, as testified by Trooper Voggenreiter, was harmless. Immediately thereafter the court gave a comprehensive curative instruction. (T.T. at 55.) Defendant now alleges that the instruction highlighted the hearsay and is thus grounds for a mistrial. We disagree.

The suggestion that the jury convicted appellant based upon this passing reference is without merit. The Commonwealth presented abundant other evidence, including testimony by Michael March that he obtained drugs from appellant. We have held that error is harmless when the prejudice accruing to appellant is minimal compared to the Commonwealth's overwhelming evidence of guilt. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987). Such is the case here; no error resulted from the curative instruction and the allegation that a mistrial was warranted is without merit.

On appellant's sixth allegation of error, we find that the trial court properly denied the motion for a directed verdict on the conspiracy charge. Appellant alleges error because the jury...