Opinion
No. 1961 EDA 2001.
Filed: November 24, 2003. Petition for Reargument Filed:: December 5, 2003.
Appeal from the Order Entered April 16, 2001, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 0008-0910.
BEFORE: JOYCE, ORIE MELVIN AND BOWES, JJ.
¶ 1 The Commonwealth has filed this appeal from a pretrial order containing three adverse rulings. The trial court ruled that the victim's prior allegations of sexual abuse against other persons could be used to impeach her, that the victim must undergo a psychiatric examination to assist the trial court in assessing her competency, and that the Commonwealth must grant the defense access to notes taken during an interview with the victim.
¶ 2 On appeal, we consider a number of issues: 1) whether the Commonwealth has cured waiver by obtaining the inclusion of its Pa.R.A.P. 1925(b) statement into the certified appellate record; 2) whether the rulings at issue are appealable as of right by the Commonwealth pursuant to Pa.R.A.P. 311(d); 3) if not, whether the rulings can be appealed pursuant to the collateral order exception contained in Pa.R.A.P. 313; 4) whether the victim properly was ordered to undergo a psychiatric examination; 5) whether evidence of the victim's prior allegations of sexual abuse against two other adult males can be used for impeachment purposes under the Rape Shield Law; and 6) whether the Commonwealth properly was ordered to reveal the notes of its interview with the victim. We affirm in part and reverse in part.
¶ 3 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. The Commonwealth accused Appellee of sexually abusing his biological daughter, L.B., numerous times 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. L.B. told police that Appellee had been molesting her for three years.
¶ 4 Prior to trial, both Appellee and the Commonwealth filed several motions in limine. The trial court held a hearing on the motions on January 12, 2001. On April 16, 2001, the trial court entered a single order disposing of those motions. It granted the Commonwealth's motion to admit Appellee's prior bad acts in relation to his daughter. In addition, the trial court granted Appellee's motions to have the victim undergo a psychiatric examination to be used in evaluating her competency, to compel the Commonwealth to provide defense counsel with a copy of the notes of an interview with the victim, and to permit the defense to cross-examine the victim about her prior sexual assault accusations.
¶ 5 The trial court's final ruling 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.
¶ 6 The trial court concluded that the prior and potentially false allegations of sexual abuse warranted a searching inquiry as to competency, including a psychiatric evaluation. The court did not make a competency determination of the victim at that time but merely ordered an evaluation "to aid the court in determining her competency to testify." Id. at 4. The court noted that it was unable to determine if 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, rejecting the Commonwealth's position that the Rape Shield Law prohibited such cross-examination. Finally, the court ordered the prosecution to produce notes taken by the assistant district attorney during an interview with L.B. The trial court concluded that defense counsel should be permitted to review the notes pursuant to this Court's decision in Commonwealth v. Billig, 399 A.2d 735, 738 n. 4 (Pa.Super. 1979).
¶ 7 The Commonwealth filed this appeal, certifying that the order substantially handicaps its prosecution of this matter.
I. Pa.R.A.P. 1925(b) Statement
¶ 8 The facts concerning the Pa.R.A.P. 1925(b) statement are rather complex. The trial court issued an order requesting a Pa.R.A.P. 1925(b) statement on September 6, 2001. The trial court apparently received the 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, that statement initially was not included in the record certified to us on appeal.
¶ 9 On February 19, 2003, this panel ruled that the Commonwealth had waived the issues on appeal because the record did not include the Commonwealth's 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 record and a copy sent to the trial court in order for issues to be preserved on appeal).
At the time of this initial disposition, the panel consisted of Judges Joyce, Bowes, and Brosky. Judge Orie Melvin has since replaced Judge Brosky on the panel.
¶ 10 The Commonwealth then filed a petition for reconsideration, explaining its failure to include the statement in the record as follows. The Commonwealth filed its appeal on May 16, 2001. When the Commonwealth reviewed the docket entries, those entries did not reflect the September 6, 2001 order to file a Pa.R.A.P. 1925(b) statement. Thus, it did not view as significant the fact that its September 7, 2001 statement was not included in the record. After the Commonwealth obtained its copy of the docket entries, the docket entries were altered to reflect the September 6, 2001 order to file a Pa.R.A.P. 1925(b) statement. However, since the Commonwealth was not aware of the change in the docket, it did not ensure that the record contained its September 7, 2001 Pa.R.A.P. 1925(b) statement.
¶ 11 While requesting reconsideration, the Commonwealth corrected the record. Specifically, the Commonwealth 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.
¶ 12 While the panel denied reconsideration, the en banc Court granted the Commonwealth's request for panel reconsideration. By the time the matter was reassigned to the panel, the Pa.R.A.P. 1925(b) statement was included in the record. Further, as noted, the statement was served on the trial court in a timely matter.
¶ 13 While the better practice would have been for the Commonwealth to review the certified record immediately before it was transmitted to this Court rather than supplementing the record after the case was submitted to a panel, the fact remains that the statement currently is part of the certified record and the trial court had the benefit of the statement when it prepared its opinion. Thus, Butler is not longer implicated, and a finding of waiver can no longer be sustained.
II. Appealability of Rulings of Trial Court
¶ 14 We now address whether the Commonwealth can appeal the three pretrial rulings at issue as of right. Although neither Appellee nor Appellant has suggested that there exists any doubt as to the appealability of the rulings, the question of whether the Commonwealth may appeal as of right under Pa.R.A.P. 311(d) relates to our jurisdiction, and we may raise it sua sponte. Commonwealth v. Allburn, 721 A.2d 363 (Pa.Super. 1998).
Under Commonwealth v. White, 818 A.2d 555 (Pa.Super. 2003), each ruling of the trial court must be analyzed separately as to the Commonwealth's right to appeal even though the rulings are contained in a single order.
a) Pa.R.A.P. 311(d)
¶ 15 The Commonwealth initially invoked our jurisdiction solely pursuant to Pa.R.A.P. 311(d). Commonwealth brief at 1. Pa.R.A.P. 311 outlines when interlocutory orders are appealable as of right and provides in relevant part:
The child victim has filed a brief as amicus curiae. She relies upon the Commonwealth's statement of jurisdiction.
(d) Commonwealth Appeals in Criminal Cases.
In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.
¶ 16 In two recent en banc opinions, this Court addressed the Commonwealth's right to appeal adverse pretrial rulings under Pa.R.A.P. 311(d): Commonwealth v. Jones, 826 A.2d 900 (Pa.Super. 2003), and Commonwealth v. Shearer, 828 A.2d 383 (Pa.Super. 2003). In Jones, supra, this Court held that the Commonwealth can appeal as of right from a pretrial order allowing the defendant to introduce evidence that the Commonwealth contends should not be admissible based on the Rape Shield Law. Hence, we accept jurisdiction pursuant to Pa.R.A.P. 311(d) regarding the Commonwealth's contention that in contravention of the dictates of the Rape Shield Law, the trial court erred when it ruled that Appellee may introduce evidence at trial that the child previously made accusations of sexual abuse against two other men.
¶ 17 Shearer directly controls our ability to review the pretrial ruling regarding the psychiatric examination pursuant to Pa.R.A.P. 311(d). In Shearer, seven judges of this Court held that where the trial court orders a Commonwealth witness to undergo an examination by an expert witness for the purpose of aiding the court in determining whether the witness is competent to testify, such an order is not appealable as of right under Pa.R.A.P. 311(d). We noted that no evidentiary decision had been rendered, and the ruling merely provided for a psychiatric examination for the trial court's assistance. In addition, the ruling did not permit the defense to utilize the results of the examination in any manner nor did the ruling make any determination regarding the competency of the victim. The order at issue in Shearer is identical to one rendered by the trial court in this case. We therefore conclude that the appeal from the ruling ordering the psychiatric examination cannot be sustained under Pa.R.A.P. 311(d).
Four judges disagreed with certain language contained in the majority writing. However, all seven judges agreed that the pretrial order at issue could not be appealed by the Commonwealth under Pa.R.A.P. 311(d).
¶ 18 Furthermore, the reasoning of Shearer applies to the pretrial ruling wherein the trial court in this action ordered the Commonwealth to reveal the notes of its interview with the victim. That ruling merely allows defense counsel to review the notes. It does not permit the defense to utilize the notes in any manner at trial. As the ruling has absolutely no impact on the prosecution of this matter, the Commonwealth's appeal from that ruling cannot be sustained under Pa.R.A.P. 311(d). In Commonwealth v. White, 818 A.2d 555 (Pa.Super. 2003), we held that the Commonwealth could not appeal as of right under Pa.R.A.P. 311(d) from a ruling denying its request that the trial court recuse itself. We reasoned that the recusal order had no evidentiary impact, and there was no indication that it would hamper the Commonwealth's ability to prosecute the case. b) Pa.R.A.P. 313
¶ 19 Although jurisdiction over the pretrial rulings ordering an examination and revelation of the interview notes are not appealable under Pa.R.A.P. 311(d), the Commonwealth filed a post-submission communication invoking our jurisdiction over those rulings pursuant to Pa.R.A.P. 313. The collateral order doctrine, now embodied in Pa.R.A.P. 313, "permits an appeal as of right from a non-final order if it is separable from and collateral to the main action, involves a right too important to be denied review and, if review is postponed, the right will be irreparably lost." Gocial v. Independence Blue Cross, 827 A.2d 1216 (Pa.Super. 2003); Pa.R.A.P. 313.
The state of the law at the time of the appeal was that the Commonwealth's certification under Pa.R.A.P. 311(d) was absolute and could not be examined by this Court. Once the Shearer decision was rendered, this law was altered. Under the circumstances, we conclude that the Commonwealth properly filed a request for post-submission communication to invoke our jurisdiction in a different manner. Thus, the Commonwealth's petition is hereby granted.
¶ 20 In Gocial, we held that Pa.R.A.P. 313 applied when the issue on appeal was whether the trial court improperly rejected the appellants' invocation of the work-product and attorney-client privileges pertaining to documents sought by the opposing party. Hence, the ruling at issue herein regarding the notes of the interview is subject to immediate appeal under Gocial because the Commonwealth asserts that the notes were work product, and therefore not subject to discovery.
¶ 21 We reach a similar conclusion regarding the pretrial ruling requiring a psychiatric examination. This ruling clearly is separable from the main cause of action because the propriety of the order may be addressed without analysis either of the merits of the underlying criminal action or the victim's credibility and competency. See American Independent Insurance Co. v. E.S., 809 A.2d 388 (Pa.Super. 2002) (discussing when a ruling is separate from the main cause of action). Second, important constitutional privacy rights of the child are involved, and such rights are too important to be denied review. Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999) (where order required revelation of documents that purportedly involved privacy rights, it could be appealed under Pa.R.A.P. 313); In the Matter of K.D., 744 A.2d 760 (Pa.Super. 1999) (reviewing propriety of order compelling parent to undergo psychiatric evaluation in proceedings under the Juvenile Act, 42 Pa.C.S.A. § 6301, and concluding order violated parent's constitutional privacy rights); see also In the Matter of T.R., 557 Pa. 99, 731 A.2d 1276 (1999) (discussing constitutional right to privacy in context of court order compelling a psychological examination) (per three justices with one justice concurring in the result); In re "B", 482 Pa. 471, 394 A.2d 419 (1978) (discussing right to prevent psychiatric records from being revealed during litigation under constitutional provisions) (plurality decision). Lastly, if the court's order cannot be reviewed before the examination is conducted, the claim will be lost forever. Thus, the ruling requiring the child to undergo a psychiatric examination is properly subject to review under the collateral order exception.
We observe that the en banc court in Shearer did not examine the applicability of Pa.R.A.P. 313 in its decision at all. Hence, that case is not controlling on this question. See Commonwealth v. Stevenson, 2003 PA Super 267 (analyzing whether Commonwealth could appeal trial court's refusal to recuse itself under Pa.R.A.P. 313 and distinguishing case that analyzed whether Commonwealth could appeal adverse recusal order under Pa.R.A.P. 311(d)).
III. Psychiatric Examination of Minor Victim
¶ 22 The propriety of the order compelling the child to undergo a psychiatric examination will now be addressed. After careful review, we conclude that based on the present state of the record, the need for a psychological examination has not been demonstrated. The record indicates:
The Court: I'll tell you what I believe the issue is. The [issue] is whether or not this child can distinguish between right, wrong and fantasy based upon her past history. So that is the scope of the psychiatric exam, and it's warranted in that regard. A child's credibility is always an issue. In a matter like this credibility is always an issue, even with a child witness.
[Assistant District Attorney]: Your Honor does not want to voir dire her or —
The Court: No, that's not going to prove anything, not a thing. That may be necessary later, but I want some basic advice from a qualified person. . . . .
[Defense Counsel]: I join the district attorney in asking the court to do a preliminary voir dire of the victim. The Court: Not now. Not at this juncture it will not be done.
[Defense Counsel]: — because I think that the case law probably says we have to do that to warrant the court ordering a psychiatric exam if you have a foundation. The Court: I don't think so.
[Defense Counsel]: All right.
The Court: It's warranted based on all the information I have before me with respect to this child's past history. There's no question about it. What more am I going to learn from her? Nothing more. We need a qualified expert to make that determination.
N.T., 4/16/01, at 7-9 (emphasis added).
¶ 23 Two relevant facts are established by this excerpt. First, the trial court was concerned with the ability of the victim to distinguish between fantasy and reality, which is a competency determination. Second, the psychiatric examination was ordered solely because the victim made two prior abuse allegations.
The trial court is slightly inconsistent. It states that the question involves the child's "credibility" on two occasions. However, it is clear that the court's true concern was over the child's ability to distinguish between reality and fantasy, which is a competency determination. The trial court's opinion clarifies that the psychiatric examination was ordered to explore competency rather than credibility. Trial Court Opinion, 10/15/01, at 4.
¶ 24 Initially, we observe that the question of a person's competency to be a witness is vested within the sound discretion of the trial court. Commonwealth v. D.J.A., 800 A.2d 965 (Pa.Super. 2002) (en banc). When the court addresses the competency of a young child, the trial court must determine if the child has (1) the capacity to communicate, which includes both the ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about, and (3) a consciousness of the duty to speak the truth. Id. In rendering a decision about competency, a court may rely on expert testimony. Id.; Commonwealth v. R.P.S., 737 A.2d 747 (Pa.Super. 1999) (trial court is permitted to consider psychiatric testimony on the issue of a witness's competency).
¶ 25 While the court may consider such testimony, the question of whether the court may order a psychiatric examination against a person's wishes is an entirely distinct inquiry. The privacy implications of a compelled psychiatric examination are significant. Indeed, where the record fails to establish that there is some question as to the victim's competency, we refuse to sanction any intrusion into the victim's existing psychological records or any cross-examination as to psychiatric treatment. See Commonwealth v. Smith, 606 A.2d 939 (Pa.Super. 1992). The order in question is much more intrusive.
¶ 26 Addressing the precise issue at hand, a plurality of our Supreme Court has concluded that a psychiatric examination of a Commonwealth witness regarding competency may be ordered if a need for the examination is demonstrated. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978). Here, however, the trial court ordered a psychological examination of the child without ever interviewing the child and based solely on the DHS records regarding the prior allegations of abuse. The record does not demonstrate need.
¶ 27 There can be no doubt that a compelled psychiatric examination would allow intrusion into the most important aspect of human privacy concerns and should not be ordered absent compelling circumstances. In re T.R., supra (per three justices with one justice concurring in the result) (a mother's state constitutional right to privacy precluded the trial court from compelling her to participate in a psychological evaluation for purposes of proceedings under Juvenile Act); see also In the Matter of K.D., 744 A.2d 760 (Pa.Super. 1999) (trial court erred in ordering parent to undergo a psychiatric examination in violation of parent's constitutional privacy rights in a proceeding under the Juvenile Act).
¶ 28 While trial courts regularly make competency determinations, a court-ordered psychological examination should never be the starting point for such a determination. The trial court did not observe the witness. There is no evidence in the record indicating that the child had a problem distinguishing between reality and fantasy. Therefore, the order directing the involuntary examination cannot be sustained. See Commonwealth v. Dolhancryk, 417 A.2d 246 (Pa.Super. 1979) (absent evidence that witness suffered a mental defect rendering him incapable of testifying truthfully, no psychiatric examination was warranted where allegations of incompetency related to credibility, not to ability to tell the truth). The fact that the witness in the instant case is an alleged child victim of sexual abuse does not obviate the requirement that necessity be shown. See, e.g., Government of the Virgin Islands v. Leonard A., 922 F.2d 1141 (3rd Cir. 1991) (substantial need for psychiatric testing of child sex victim is necessary); State v. Redd, 642 A.2d 829 (Del. 1993) (compelling reason required for psychiatric examination of alleged victim of sex crime); State v. R.W., 514 A.2d 1287 (N.J. 1986) (substantial showing of need and justification required before ordering psychiatric examination of a witness).
Our Supreme Court recently indicated its approval of the efficacy of conducting a pre-trial hearing to determine the competency of a child witness in an appropriate case. Commonwealth v. Delbridge, Pa., A.2d (No. 150 MAP 2001, filed September 25, 2003). The trial court herein may find guidance in that decision.
IV. Rape Shield Ruling
¶ 29 We now address the merits of the trial court's Rape Shield Law ruling. Herein, DHS records establish that when she was as young as three years old, the victim accused a bus driver of touching her. Four years later, she accused her aunt's husband of molesting her. A Department of Human Services investigator determined that this latter accusation was false based on inconsistencies in L.B.' statements and the results of cultures. The trial court ruled that evidence of these prior allegations were not inadmissible under the Rape Shield Law.
¶ 30 Initially, we note that the admissibility of evidence is committed to the trial court's sound discretion. Jones, supra. The Rape Shield Law, 18 Pa.C.S.A. § 3104(a), prohibits evidence of any kind regarding the victim's "past sexual conduct." The Rape Shield Law is designed to prevent a sexual assault trial from degenerating into an attack upon the victim's chastity. Commonwealth v. Johnson, 536 Pa. 153, 638 A.2d 940 (1994) (per three Justices with one Justice concurring); Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983).
Section 3104 of title 18, evidence of victim's sexual conduct, provides:
(a) General Rule. — Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
¶ 31 In Johnson, supra, three justices of our Supreme Court, with one Justice concurring, rejected a contention that evidence indicating that the victim in a sexual assault case had been sexually assaulted on a prior occasion was prohibited under the Rape Shield Law. The Court stated, "Evidence that [the victim] had been subject to a previous sexual assault would not reflect upon [the victim's] reputation for chastity. To be a victim is not `conduct' of the person victimized. It would be illogical to conclude that the Rape Shield Law intended to prohibit this type of testimony." Johnson, supra at 158, 638 A.2d at 942. The Johnson Court also observed, however, that such evidence nonetheless remains subject to traditional evidentiary standards regarding the admission of evidence.
¶ 32 Johnson was applied by this Court in Commonwealth v. Holder, 815 A.2d 1115 (Pa.Super. 2003), where we held specifically that evidence that the victim also had been the victim of a prior sexual assault was not subject to the Rape Shield Law. We noted the fact that the victim was assaulted on a prior occasion did not impugn her chastity nor did the evidence involve sexual conduct by the victim. We held that the Rape Shield Law therefore was inapplicable to a prior sexual assault. We observed, as had the Court in Johnson, that such evidence nonetheless must be relevant.
¶ 33 In the present case, the proposed evidence will not be introduced to show either that the victim engaged in past sexual conduct or that the prior sexual abuse actually occurred. Rather, it will be introduced to demonstrate that the victim had a history of fabricating such charges, that she was not sexually abused on those prior occasions, and to challenge her credibility that she was sexually abused on this occasion. Thus, we agree with the trial court that the evidence was relevant to her credibility.
Since these facts regarding the prior incidents are based on DHS records and involve a finding of lack of credibility by at least one person in the agency, we cannot agree with the Commonwealth's position that Appellee did not show that the accusations could be false. See Commonwealth's brief at 22-23.
¶ 34 It is important to remember that even when conduct of the victim cannot be introduced under the Rape Shield Law, a defendant cannot be precluded from offering evidence that is highly probative of a witness's credibility. Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992). Certain constitutional considerations underlie the analysis. "An accused has a fundamental right to present evidence so long as the evidence is relevant and not excluded by an established evidentiary rule." Commonwealth v. Ward, 529 Pa. 506, 509, 605 A.2d 796, 797 (1992) (citing Chambers v. Mississippi, 410 U.S. 284 (1973)).
¶ 35 For example in Commonwealth v. Black, 487 A.2d 396 (Pa.Super. 1985), the defendant sought to introduce evidence that the victim, who was the defendant's daughter, was having a sexual relationship with her brother, whom the defendant had ejected from the house. The defendant argued that this prior instance of sexual conduct was relevant to his defense that the victim had fabricated her allegation of abuse against him so that he would have to leave the house and her brother could return. We held that in light of a defendant's constitutional right to confront adverse witnesses, the Rape Shield Law cannot be used to exclude relevant evidence that shows bias or attacks the credibility of a witness. See also Spiewak, supra; Commonwealth v. Fernsler, 715 A.2d 435 (Pa.Super. 1998).
¶ 36 We are aware of Commonwealth v. Gaddis, 639 A.2d 462 (Pa.Super. 1994), where we upheld the trial court's decision to exclude from evidence what the defendant claimed were the victim's prior false allegations of sexual abuse by other males. However, in Gaddis, we relied upon the Superior Court decision in Commonwealth v. Johnson, 566 A.2d 1197 (Pa.Super. 1989). The aspect of the Johnson decision that we relied upon in Gaddis was overruled in Commonwealth v. Johnson, supra.
¶ 37 Thus, under the facts of this case and in light of the pertinent law, we cannot conclude that the trial court abused its discretion in ruling that the proposed evidence was not subject to exclusion under the Rape Shield Law.
IV. Disclosure of Interview Notes to Defense
¶ 38 Next, the Commonwealth challenges the trial court's order that the Commonwealth disclose certain notes that were handwritten by the assistant district attorney during an interview with the child victim. The Commonwealth asserts those notes were work product and therefore not subject to discovery by the defense. Appellee sought the records because there is a possibility that the victim's statements to the prosecutor were inconsistent to other statements she had made, and thus constitute exculpatory material under Brady v. Maryland, 474 U.S. 83 (1963). Appellate courts generally review the grant or denial of discovery requests for an abuse of discretion. Commonwealth v. Williams, 557 Pa. 207, 222 n. 5, 732 A.2d 1167, 1175 n. 5 (1999). "An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will." Commonwealth v. Hess, 745 A.2d 29, 31 (Pa.Super. 2000). Commonwealth v. Jackson, 785 A.2d 117 (Pa.Super. 2001). The rules of criminal procedure provide for disclosure by the Commonwealth, at the request of the defense and in the discretion of the trial court, all written statements and "substantially verbatim oral statements" of eyewitnesses the Commonwealth intends to call at trial. Pa.R.Crim.P. 573. This Court has interpreted this requirement to mean that the prosecution must allow the defense to examine reports or notes regarding statements of prosecution witnesses who testify, subject to applicable safeguards. Commonwealth v. Billig, 399 A.2d 735, 738-39 n. 4 (Pa.Super. 1979).
¶ 39 We are not persuaded by the Commonwealth's argument that its characterization of the notes as "work product" renders the trial court's ruling an abuse of discretion. Although the Commonwealth is not required to produce work product in discovery, the Rule describes that term as "legal research or . . . records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the attorney[.]" Pa.R.Crim.P. 573(G). The assistant district attorney's "shorthand notes" were made during a conversation with the victim about "what happened." N.T., 1/12/01, at 6. They cannot be characterized as work product.
¶ 40 "It is well established that where the Commonwealth has in its possession pretrial statements of its witnesses which have been reduced to writing and relate to the witness's testimony at trial, it must, if requested, furnish copies of these statements." Commonwealth v. Brinkley, 505 Pa. 442, 449, 480 A.2d 980, 984 (1984). The work product privilege is a qualified one which does not remove such statements from discovery. Id. In Billing, supra we held specifically that scribbled notes of an interview were not work product and were discoverable by the defense. See also Commonwealth Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). We cannot conclude that the judgment exercised by the trial court in determining that the notes were subject to disclosure was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. As such, no abuse of discretion has been established, and this claim must fail.
¶ 41 We also find the Commonwealth's reliance on Commonwealth v. Woods, 710 A.2d 626 (Pa.Super. 1998), to be misplaced. There, we addressed the issue of the propriety of the use of a summary of a witness's statement for impeachment purposes at trial, not whether such a statement is subject to disclosure. The trial court herein did not make a determination that the statements made during the interview could be used for impeachment.
VI. Conclusion
¶ 42 We conclude that the Commonwealth has overcome the doctrine of waiver by including in the record its previously transmitted Pa.R.A.P. 1925(b) statement. We also find that the only pretrial ruling that can be appealed as of right under Pa.R.A.P. 311(d) is the Rape Shield Law issue, and that the other two pretrial rulings are appealable as collateral orders. We hold that the trial court's application of the Rape Shield Law was correct, but that the trial court improperly ordered the victim to undergo a psychiatric examination. Finally, we uphold the trial court's order to grant the defense access to the notes of the Commonwealth's interview with the victim.
¶ 43 The Commonwealth's petition to file a post-submission communication is granted. Order affirmed in part and reversed in part. Case remanded. Jurisdiction relinquished.