Commonwealth v. G.P. , 2000 Pa. Super. 391 ( 2000 )

TODD, J.,

dissenting:

¶ 1 While the Majority acknowledges that in the present case, “the true issue is not whether appellant was a client to the psychotherapist, and is thereby entitled to the protection of that relationship.... ” (Majority Opinion, at 368), it does not set forth a clear ruling on that issue. I would hold, as did the trial court, that the statements made by Appellant to Dr. Carlson were not privileged because there never was a true psychologist-client relationship between the two. Having determined that the privilege is not applicable, I believe that the proper inquiry is whether the confession was voluntary. Accordingly, I must respectfully dissent.

¶2 On the issue of the applicability of the psychologist-client privilege, the courts of this Commonwealth repeatedly have held that the existence of a true psychologist-patient relationship is essential for the privilege to apply. See In Interest of Bender, 366 Pa.Super. 450, 531 A.2d 504, 505 (1987); In re Adoption of Embick, 351 Pa.Super. 491, 506 A.2d 455, 460 (1986). See also M. v. State Board of Medicine, 725 A.2d 1266, 1268-69 (Pa.Commw.1999) (“A court-ordered examination does not invoke the privilege because treatment is not contemplated in conducting the examination.”). Indeed, as the trial court points out, in the present case: “[G.P.] was only seen by Dr. Carlson in order to receive a court ordered evaluation. [G.P.] never received any treatment, counseling or advice of any kind from Dr. Carlson. Dr. Carlson merely evaluated [G.P.’s] mental health, he did not treat him in any way.” (Trial Court Opinion, 11/1/99, at 10.) Thus, in this case, I believe that the trial court properly determined that the privilege did not apply.

¶ 3 Our inquiry cannot end here, however, as the Majority correctly notes, because, even if not privileged, these inculpa-tory statements were obtained by Dr. Carlson when acting under court order, albeit not in a criminal proceeding. The inquiry remains, therefore, whether their admission in the later criminal proceeding against Appellant violated his Fifth Amendment right against compelled self-incrimination. U.S. Const, amd. V.¹⁰

¶4 The United States Supreme Court held in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), that: “A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id. at 468, 101 S.Ct. 1866. In Estelle, the Court noted that:

“Volunteered statements ... are not barred by the Fifth Amendment,” but under Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602 (1966)], we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent’s statements to [the psychiatrist] were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them.

Id. at 469,101 S.Ct. 1866.

¶ 5 By contrast, in the present case, the examination was not ordered as part of the criminal investigation against G.P. and he was not in custody when the statement was given. Thus, Estelle does not compel the exclusion of the confession in this case. Moreover, the Court further noted in Estelle, that its holding was to be interpreted narrowly, stating that “we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.” Id. at 469, 101 S.Ct. 1866.¹¹

¶ 6 I find the Supreme Court of Pennsylvania’s decision in Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879 (1998), to be analogous to the present case and to reflect the proper analysis once there has been a determination that the statements are not privileged. In Nester, the Court held that the trial court had erred in suppressing a confession obtained by a children and youth services caseworker who was investigating a claim that the defendant had sexually abused a child. Id.

¶ 7 Initially, the Court noted in Nester that Miranda warnings are not required when, as in the present case, the defendant was not in custody at the time that the incriminating statement was obtained.¹² Id. at 168, 709 A.2d at 882. Thus, the confession was not inadmissible merely because it had been given without the defendant having been apprised of his Miranda rights.

¶ 8 Instead, the court stated that in determining the admissibility of a confession, “the touchstone inquiry is whether the confession was voluntary.” Id. at 162-63, 709 A.2d at 882 (citations omitted). The Court explained in Nester that:

Although Nester was not in custody, a government caseworker who had a duty to report her findings to law enforcement personnel questioned him. Therefore, we must still examine the totality of the circumstances surrounding the interrogation to determine if his confession was voluntary because a noncustodial interrogation “might possibly in some situations, by virtue of some special circumstances,” result in an involuntary confession.

Id. at 163-64, 709 A.2d at 882 (citations omitted).

¶ 9 The Court, noting that “Voluntariness is determined from the totality of the circumstances surrounding the confession”, id. at 163, 709 A.2d at 882, then analyzed the following factors to determine whether the confession had been voluntary: “the duration and means of the interrogation; the physical and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; and any and all other factors that could drain a person’s ability to withstand suggestion and coercion.” Id. at 164, 709 A.2d at 882. Based on these factors, the Court concluded that Nester’s confession had been voluntary.

¶ 10 In the present case, the trial court did not analyze whether the confession was voluntary and the record contains insufficient information for tins Court to make its own analysis.¹³ Thus, I would remand to the trial court for a determination of whether G.P.’s confession was voluntary. If the confession was voluntary, G.P.’s judgment of sentence should be affirmed. On this basis, I respectfully dissent.

10 . The equivalent provision of the Pennsylvania Constitution, Article 1, Section 9, "tracks the Fifth Amendment in the context of the self-incrimination clause,” Commonwealth v. Sartin, 561 Pa. 522, 526, 751 A.2d 1140, 1142 n. 5 (2000).

11 . The Court further held in Estelle that a criminal defendant’s Sixth Amendment right to Counsel had been implicated in that case as well because the examination occurred after the defendant had been charged, at a "critical stage” of the proceedings, and after counsel had been appointed to represent him. Id. at 470, 101 S.Ct. 1866. In the present case, Appellant’s Sixth Amendment right to counsel had not been triggered by the time of the examination because he had not yet been charged.

12 . Because Appellant in the present case was not in police custody when interviewed by the psychologist, no right to counsel under the Fifth Amendment applies. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) ("The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations.”) (citations omitted).

13 . The issue of "[wjhether a confession is voluntary is a conclusion of law....” Id. at 160, 709 A.2d at 881.