J-S28033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               : IN THE SUPERIOR COURT OF
                                               : PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LOURDES M. RODRIGUEZ,                      :
                                               :
                       Appellant               :     No. 1987 MDA 2017

          Appeal from the Judgment of Sentence November 13, 2017
              in the Court of Common Pleas of Luzerne County,
            Criminal Division at No(s): CP-40-CR-0002315-2015

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 29, 2018

        Lourdes M. Rodriguez (“Rodriguez”) appeals from the judgment of

sentence entered following her conviction of aggravated assault, simple

assault, endangering the welfare of children, and recklessly endangering

another person.1 We affirm.

        On March 21, 2015, West Hazleton police officers were called to a home

located at 7 West Madison Avenue, West Hazelton Borough, Pennsylvania,

based upon a report that a one-year-old female was unresponsive and

bleeding from her mouth. The child was transported via helicopter to Lehigh

Valley Hospital, where she was found to have suffered fractures to her right

clavicle and right arm, lacerations to her liver and spleen, internal bleeding

and a possible contusion to her kidney, as well as facial, chest and abdominal

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1   18 Pa.C.S.A. §§ 2702, 2701, 4304, 2705.
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bruising. The treating physician indicated that the injuries were caused by

blunt force trauma. Rodriguez, the victim’s mother, offered differing stories

regarding the origin of the victim’s injuries.      Ultimately, police arrested

Rodriguez and charged her with the above-described crimes.

      A jury subsequently found Rodriguez guilty of the above-described

crimes. On November 13, 2017, the trial court sentenced Rodriguez to an

aggregate prison term of 10 to 20 years, followed by a five-year term of

probation. Thereafter, Rodriguez filed the instant timely appeal, followed by

a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

      Rodriguez presents the following claims for our review:

      1. Did the trial court violate [] Rodriguez’[s] rights, as guaranteed
         by the Fourteenth Amendment to the United States
         Constitution[,] by conducting an in camera review of [Luzerne
         County] Children and Youth [Services’ (“CYS”)] records and
         denying the [d]efense the ability to review these documents?

      2. In the event that this Court does not agree that the [d]efense
         had a right to review these records, then must this Court make
         an independent review of the trial court’s conclusion as to the
         value of said records in order to satisfy the protections of the
         Fourteenth Amendment to the U.S. Constitution?

Brief for Appellant at 3.

      Rodriguez first argues that the trial court violated her Fourteenth

Amendment right to due process when it conducted an in camera review of

the CYS records, and denied her the ability to review the records. Id. at 7.

Rodriguez asserts that in camera review of the records by the trial court is


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“not an appropriate pretrial method of determining whether or not records

may be useful to a [d]efense.” Id. Rodriguez contends that the trial court’s

reliance on the United States Supreme Court’s holding in Pennsylvania v.

Ritchie, 480 U.S. 39 (1987), is misplaced. Brief for Appellant at 7. According

to Rodriguez, the holding in Ritchie is not inconsistent with the United States

Supreme Court’s holding in Dennis v. United States, 384 U.S. 855 (1966),

wherein the Supreme Court held that only the defense is in the position to

make a determination as to what would be useful to the defense. Brief for

Appellant at 7.

      In Ritchie, a defendant, who had been charged with sexual offenses

involving his minor daughter, subpoenaed the records of a child protective

services agency (“the agency”), which then refused to produce the records

based upon section 2215(a) (now section 6340(a)) of the Child Protective

Services Law (“CPSL”). See 23 Pa.C.S.A. § 6340(a). Former section 2215(a)

of the CPSL authorized the disclosure of child protective services records to

specified officials, agencies and individuals, including a “court of competent

jurisdiction,” but not to a subject of a child abuse report. See 23 Pa.C.S.A.

§ 6340(a). The trial court directed the agency to produce the CPS records for

an in camera review, and, following the completion of that review, concluded

that none of the CPS materials were discoverable by the defendant. See

Commonwealth v. Ritchie, 472 A.2d 220, 224-25 (Pa. Super. 1984).




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      On appeal, the defendant in Ritchie argued that the trial court’s failure

to permit inspection of the CPS records by defense counsel violated the

Confrontation Clause of the Sixth Amendment to the United States

Constitution. The Supreme Court of Pennsylvania agreed, and held that the

defendant was entitled to access the agency’s entire file relating to his

daughter so that determinations regarding what information might be useful

to his defense could be made by his advocate, rather than the trial court.

Commonwealth v. Ritchie, 502 A.2d 148, 153-54 (Pa. 1985).

      After granting certiorari, the United States Supreme Court concluded

that the Pennsylvania Supreme Court had erred in holding that defense

counsel must be allowed to examine the CPS files. Ritchie, 480 U.S. at 59.

The Supreme Court reasoned that, “although the eye of an advocate may be

helpful to a defendant in ferreting out [exculpatory] information, … this

[C]ourt has never held—even in the absence of a statute restricting

disclosure—that a defendant alone may make the determination as to the

materiality of the information.” Id. (citation omitted).

      To allow full disclosure to defense counsel in this type of case
      would sacrifice unnecessarily the Commonwealth’s compelling
      interest in protecting its child-abuse information. If the CYS
      records were made available to defendants, even through counsel,
      it could have a seriously adverse effect on Pennsylvania’s efforts
      to uncover and treat abuse. Child abuse is one of the most difficult
      crimes to detect and prosecute, in large part because there often
      are no witnesses except the victim.         A child’s feelings of
      vulnerability and guilt and his or her unwillingness to come
      forward are particularly acute when the abuser is a parent. It
      therefore is essential that the child have a state-designated
      person to whom she may turn, and to do so with the assurance of

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        confidentiality…. The Commonwealth’s purpose would be
        frustrated if this confidential material had to be disclosed upon
        demand to a defendant charged with criminal child abuse, simply
        because a trial court may not recognize exculpatory evidence.
        Neither precedent nor common sense requires such a result.

Id. at 60-61.

        Based upon the United States Supreme Court’s holding in Ritchie, we

discern no due process violation here, where the trial court examined CYS’s

records and determined that they would provide no exculpation. See Trial

Court Opinion, 1/9/18, at 3.2 Accordingly, we cannot grant Rodriguez relief

on this claim.

        In her next claim, Rodriguez argues that this Court must undertake “an

independent review of the trial court’s conclusions as to the value of [CYS’s]

records in order to satisfy the protections of the Fourteenth Amendment[.]”

Brief for Appellant at 9. However, Rodriguez did not present this claim in her

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of

on appeal. Accordingly, it is waived. See Pa.R.A.P. 302(a) (stating that a

claim    cannot    be   raised    for   the    first   time   on   appeal);   see   also

Commonwealth v. Barnhart, 933 A.2d 1061, 1066 n.10 (Pa. Super. 2007)




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2 Cf. Commonwealth v. Bergeri, 96 A.3d 1049, 1055 (Pa. Super. 2014)
(citing, inter alia, Ritchie, and remanding for issuance of a rule to show cause
why the agency should not produce the victim’s records for in camera
inspection in order to determine if the materials were protected by privilege,
or discoverable).

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(indicating that an appellant’s failure to include an issue in a Pa.R.A.P. 1925(b)

concise statement results in the waiver of the issue).

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2018




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