# Commonwealth v. Kennedy

> Superior Court of Pennsylvania · March 23, 1992 · 413 Pa. Super. 95

URL: https://www.frixlaw.com/law-library/cases/9637816

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Michael KENNEDY, Philadelphia Department of Human Services, Children and Youth Division, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** March 23, 1992
- **Citations:** 413 Pa. Super. 95; 604 A.2d 1036
- **Precedential status:** Published
- **Opinion:** Concurring in part by Johnson
- **Judges:** Cirillo, Cavanaugh, Wieand, Olszewski, Sole, Popovich, Johnson, Hudock, Elliott
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9637816

## How later opinions describe it (automated extraction)

- holding that the trial court's in camera review of these records constituted error
- noting Pennsylvania’s long standing practice of avoiding constitutional issues when alternative bases exist

## Opinion text

JOHNSON, Judge,
concurring and dissenting.
.1 join all of Part II of the Opinion of my distinguished colleague, the Honorable Kate Ford Elliott, which finds no constitutional deprivation to a criminal defendant who is denied access to psychotherapeutic files not in the possession of the prosecution. I am unable to join Part I of that Opinion because I am not satisfied that Michael Kennedy is a “subject of the report” as that term is intended to be understood in the Child Protective Services Law, now 23 Pa.C.S. § 6301 et seq.
I agree with the majority that constitutional issues are to be avoided whenever possible; nevertheless, because I am unable to find the language of the Child Protective Services Law dispositive as to the first issue on this appeal, I would reach the constitutional question upon which the first issue is based.
In the case before us, the child victim is under the legal custody of her grandmother, by order of court. Kennedy is the child’s stepfather. I do not understand how the defendant, Kennedy, can qualify as a “subject of the report” since he is neither a parent, guardian or “other responsible person.” His status as stepfather does not bring him within the intended statutory meaning of a “responsible person.” My understanding of the statute in question does not entitle Kennedy to obtain a copy of the victim’s file in the possession of the Department of Human Services (DHS). Therefore, I am unable to join the majority’s decision to grant to Kennedy a new trial.
The majority states that Section 15(b) of the original Child Protective Services Law (CPSL), “allows almost complete *121 access to file information to any person included within that circle of privacy.” As originally enacted, that section provided:
Section 15. Confidentiality of Records.—
(b) At any time, a subject of a report may receive, upon written request, a copy of all information except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed pursuant to section 6.
Act of November 26, 1975, P.L. 438, No. 124, §§ 1 to 24,11 P.S. §§ 2201 to 2224, repealed by Act of December 19,1990, P.L. 1240, No. 206, § 6, now recodified as 23 Pa.C.S. §§ 6301 et seq.
The present CPSL has carried this subsection forward in the following form:
§ 6340. Release of information in confidential reports
(a) General rule. — ____
(b) Release of information to subject child. — At any time and upon written request, a subject of a report may receive a copy of all information, except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed pursuant to section 6313 (relating to reporting procedure).
Act of December 19, 1990, P.L. 1240, No. 206, § 2, 23 Pa.C.S. § 6340(b). The title to subsection (b), “Release of information to subject child,” shall not be considered to control but may be used to aid in the construction thereof. 1 Pa.C.S. § 1924. The legislature, in recodifying the CPSL, has clearly indicated that the release of information pursuant to Section 15(b) of the original act is to be limited to the abused child, or those persons responsible for the child’s care.
This does not constitute any change in legislative intent or purpose. The majority fastens on Section 14(h) of the Act, 11 P.S. § 2214(h), now 23 Pa.C.S. § 6338(a) and (b) as “additional support” for the proposition that the person *122 responsible for causing the abuse is a “subject of the report.” I cannot agree. The notice provision contained in that section would be equally applicable to a parent, guardian or other responsible person. I find it unpersuasive to suggest that the Legislature attempted, through the “notice” amendment, to enlarge the statutory definition of the term “subject of the report” as found within the definitional section or within section 15(b).
The confusion, if any, arises from the use of the word “responsible” in two different ways within the Act. For example, in Section 6, subsection (c), the word is first used to describe the person who is “responsible for [the abused child’s] care.” Later in the same subsection, the word is used to describe the person “responsible for causing the suspected abuse.” This may, on occasion, be one and the same person, where the parent or guardian to whom the child’s care is entrusted violates his responsibility and abuses the child.
That the Legislature knowingly employed the term “responsible” in different contexts within the Act is evident. As re-enacted through Act 206 of 1990, the reporting procedure has now been more clearly outlined, with different pieces of information for inclusion in the report assigned different numbered subparagraphs. Thus, Section 6313(c), which replaces 11 P.S. § 2206(c) and the original Section 6 of the Act, now provides as follows:
§ 6313. Reporting procedure
(c) Written reports. — Written reports from persons required to report under section 6311 shall be made to the appropriate child protective service in a manner and on forms the department prescribes by regulation. The written reports shall include the following information if available:
(1) The names and addresses of the child and the parents or other person responsible for the care of the child if known.
*123 (5) The name of the person or persons responsible for causing the suspected abuse, if known (emphasis added).
Under the present statute, there can be no doubt that “the person responsible for the care of the child,” as referred to in § 6818(e)(1), is intended by our legislature to be understood separate and apart from “the person.... responsible for causing the suspected abuse,” referred to in § 6818(e)(5).
Pursuant to § 15(b) of the original Act, the information within the file is available to the subject of the report. It is because the term “subject of the report” is defined to include the “person responsible,” that it is necessary to determine the scope of the term “person responsible” within the definitional scheme. The majority concludes that the abuser, through his or her “status” as the abuser, is the “subject of the report” and thus is entitled to receive a copy of the information contained within the report. It is my disagreement with that conclusion that moves me to dissent.
As originally enacted, Section 3 defined the term “subject of the report,” and in my opinion, this definition limited the scope of the term to two people: the abused child and a person legally responsible for the care of that child, if named in the report. I find the legislature’s selection of syntax significant; the “subject of the report” includes the child and a “parent, guardian or other responsible person.” The latter three persons are identified disjunctively. To infer that the term “responsible person” refers to the abuser would mean that the second element of the definition is either the parent, the guardian, or the abuser. This illogical result is necessary to the result reached by the majority. Rather, I conclude instead that the legislature intended to make an exhaustive reference to the person(s) who could be responsible for the care of the child. Accordingly, the abuser is not included within the term “subject of the report” merely by virtue of his or her status as the abuser.
*124 If one accepts this interpretation of § 3, it seems certain that, in making the information within the file available to the “subject of the report,” 23 Pa.C.S. § 15(b) was not intended to make the same available to abusers merely by virtue of their status.
Subsequent amendments to the Act, in my judgment, have fortified this conclusion. For example, in 1982, the legislature removed the word “legally” from between the words “person” and “responsible” in defining “subject of the report” in former 11 P.S. § 2203. Thus, the provision was amended to read:
“Subject of the report” means any child reported to the central register of child abuse and a parent, guardian or other person responsible also named in the report.
Act of June 10, 1982, P.L. 460, No. 136, § 3. The Legislature might have amended the statute so as to eliminate the possible suggestion that the term “legally responsible” was intended to mean “responsible for the abuse.”
In its most recent codification, the definition of “subject of the report” appears as follows:
“Subject of the Report.” Any child reported to the central register of child abuse and a parent, guardian or other responsible person also named in the report.
23 Pa.C.S. § 6303 (formerly 11 P.S. § 2203, Section 3 of the Act). The term “person responsible” has been replaced by “responsible person.” Thus, I find, the statutory definition continues to vary further from the interpretation adopted by the majority.
Kennedy does not make an independent analysis as to the meaning to be given to the term “subject of the report”. This is understandable; the issue for which en banc review was granted was the constitutional question involved. Thus, the entire focus of his argument is on constitutional deprivation.
In summary, I am unable to subscribe to the majority’s interpretation of the CPSL and I cannot conclude, on the basis offered by the majority, that the trial court erred by *125 denying the defendant and his counsel access to the DHS files. Nor is my conclusion altered by the parties’ willingness to concede what I believe to be an erroneous interpretation of the statute. Because my understanding of the CPSL does not dispose of the issue presented, I would reach that issue on its merits.
Kennedy argues that his counsel must be allowed the opportunity to personally review the DHS records. In Commonwealth v. Ritchie, 509 Pa. 357 , 502 A.2d 148 (1984) aff'd in part, reversed in part, sub nom. Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), the respondent, charged with various sexual offenses against his daughter, sought CYS files which he alleged contained exculpatory evidence. The trial judge refused to order CYS to disclose the files. This court held that, under the Sixth Amendment, the defendant was entitled to any verbatim statements made by the victim regarding abuse. We remanded the case for a determination of whether such statements existed within the file and, if so, whether denying them to defense counsel had constituted harmless error. Our Supreme Court also remanded, but with instructions that the Sixth Amendment entitled defense counsel to review the entire file. The United States Supreme Court granted certiorari.
On review, the Court affirmed our Supreme Court’s decision to remand for further proceedings. The Court held, however, that the defendant’s rights under the U.S. Constitution were sufficiently protected by an in camera review of the files sought. The Court stated:
Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the conviction.
*126 Ritchie, 480 U.S. at 58 , 107 S.Ct. at 1002 , 94 L.Ed.2d at 58 (footnote omitted.)
Guided by Ritchie, our Court has approved the procedure employed by the trial court in this case. In Commonwealth v. Higby, 384 Pa.Super. 619 , 559 A.2d 939 (1989) alloc, den. 525 Pa. 578 , 575 A.2d 109 (1990), this Court stated:
Initially, Appellant asserts that the trial court erred in refusing his pre-trial request for discovery. Appellant filed motions for inspection of both Children’s Services Records and Rape Crises Records. Following the dictates of the United States Supreme Court’s pronouncement in Commonwealth v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), the trial court conducted an in camera inspection of the Children’s Services Records. The trial court refused to grant Appellant access to these records based upon its finding that the records contained “no material evidence of an exculpatory nature which would be subject to disclosure.” Trial Court Opinion at 3. Since the Supreme Court required “divulgence when a court of competent jurisdiction determines that the material for which production is sought is essential to the accused’s defense,” Commonwealth v. Carillion, [ 380 Pa.Super. 458 ] 552 A.2d 279 (1988), we conclude the trial court complied with the law with respect to the Children’s Services Records.
Higby, 384 Pa.Super. at 621 , 559 A.2d at 939-40 .
In Commonwealth v. Dunkle, 385 Pa.Super. 317 , 561 A.2d 5 (1989), rev’d on other grounds, 529 Pa. 168 , 602 A.2d 830 (1992) our court found no violation of the Sixth Amendment under circumstances similar to those presented here. We determined that Ritchie had been followed where the trial court ordered the Commonwealth, in possession of CYS files, to produce those records for an in camera review for any material that was properly discoverable. After reviewing the files, the trial court provided Dunkle with various statements made by the victim. The court also instructed Dunkle that more information could be released *127 if Dunkle presented a colorable argument that such information existed, was discoverable, and was contained within the records.
In the instant case, Kennedy recognizes that the procedure employed by the trial court complies with the requirements of the federal constitution, but he bases his argument on the conclusion that Article I, § 9 of the Pennsylvania Constitution provides a defendant with greater rights, including the right to review the files which are the subject of a statute requiring confidentiality. In support, Kennedy directs this court to Commonwealth v. Lloyd, 523 Pa. 427 , 567 A.2d 1357 (1989). There, our supreme court held that an in camera inspection of psychiatric records by the trial court was insufficient to satisfy a defendant’s rights under the confrontation and compulsory process clauses of the Pennsylvania Constitution. The Lloyd court noted, however, that the issue before it did “not involve a request to discover statutorily protected state maintained records----” 523 Pa. at 431 , 567 A.2d at 1359 . Cf. Commonwealth v. Wilson, 529 Pa. 268, 281-282 , 602 A.2d 1290, 1297-98 (1992). As the majority observes in Part II of its analysis, no statutory privilege then existed for communications between a psychiatrist and patient. Therefore, Lloyd does not control where, as here, a defendant seeks production of records which are the subject of a statutory grant of confidentiality.
Kennedy cites to no other authority for the proposition that defense counsel is entitled to review files which are the subject of a statutory protection against disclosure, nor has my research revealed any. Guided by Ritchie, and our decisions in Dunkle and Higby, I determine that both Judge Murphy, as the pre-trial motions judge, and Judge Temin, presiding at trial, properly conducted an in camera review of the DHS file. Upon the trial judges determining that the file contained “no information relevant to the defense,” I conclude that court acted properly in denying Kennedy access to the contents of these files.
*128 Provisions of the Pennsylvania Constitution have often been read to provide greater protection of an accused’s rights than the analogous provisions of the federal constitution. Nonetheless, until our Supreme Court addresses the issue of whether a defendant is guaranteed greater access to statutorily protected records under the confrontation clause and compulsory process clause of the Pennsylvania Constitution than under the Federal Constitution, I decline to extend the Pennsylvania Constitution in the fashion Kennedy seeks here.
For these reasons, I conclude that Kennedy’s rights under the confrontation and compulsory process clauses of the Pennsylvania Constitution have been adequately protected, and I find no error on this issue. Also, I have reviewed Kennedy’s remaining allegations of error and I conclude that they too are without merit. Accordingly, I would affirm judgment of sentence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637816. Public record. Not legal advice.