Com. v. Thomas, O., III ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
OTIS ADAM THOMAS III
Appellant No. 1092 MDA 2017
Appeal from the Judgment of Sentence imposed May 17, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0005913-2015
BEFORE: STABILE, J., MCLAUGHLIN, J. and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 06, 2021
Appellant, Otis Adam Thomas III, appeals from his judgment of
sentence of 48-96 months’ imprisonment for unlawful contact with a minor,
indecent assault of a child, and corruption of minors.1 The record indicates
that the minor complainant, K.E., reported Appellant’s acts to a therapist at
Cornerstone Counseling, PC (“Cornerstone”) in Harrisburg. The record further
suggests, however, that K.E.’s grandmother had communications with
Cornerstone as well. The trial court denied Appellant’s request for all
Cornerstone records, including communications with K.E.’s grandmother and
all records relating to K.E.’s diagnoses, observations and treatment plans. In
this appeal, Appellant argues that the trial court erred by denying his request
for records that fell outside the scope of Pennsylvania’s psychiatrist-patient
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1 18 Pa.C.S.A. §§ 6318, 3126, and 6301, respectively.
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privilege, 42 Pa.C.S.A. § 5944, and the sexual assault counselor privilege, 42
Pa.C.S.A. § 5945.1. We retain jurisdiction and remand for further
proceedings, including in camera review of Cornerstone’s records relating to
K.E.’s grandmother’s communications and to K.E.’s diagnoses, opinions,
evaluations, observations, and treatment plans.
On November 22, 2015, Appellant was charged with committing sexual
offenses against K.E. Prior to trial, Appellant filed a petition seeking
Cornerstone’s records relating to K.E.’s grandmother’s communications with
Cornerstone and all diagnoses, opinions, evaluations, observations, and
treatment plans relating to K.E. In response, the Commonwealth asserted
that Cornerstone’s records were privileged under the psychiatrist-patient
privilege under Section 5944 and the sexual assault counselor privilege under
Section 5945.1. In an order dated September 29, 2016, the trial court denied
Appellant’s petition.
On February 13, 2017, following a three-day trial, the jury found
Appellant guilty of the above-mentioned offenses and not guilty of indecent
exposure, attempted rape, involuntary deviate sexual intercourse, and
aggravated indecent assault. The trial court subsequently imposed sentence,
and Appellant filed timely post-sentence motions, which the court denied in
an order docketed on June 7, 2017.
Appellant filed a timely notice of appeal. On July 14, 2017, the trial
court ordered Appellant to file a Pa.R.A.P. 1925 statement within 21 days, but
Appellant did not file a Rule 1925 statement until October 11, 2017. On
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October 16, 2017, Appellant’s attorney filed a petition for leave to submit a
Rule 1925 statement nunc pro tunc. Counsel stated that he had drafted a
Rule 1925 statement but admitted that his staff failed to file it. On October
17, 2017, without ruling on Appellant’s petition, the trial court issued a Rule
1925(a) opinion recommending dismissal of Appellant’s appeal for lack of a
timely Rule 1925(b) statement. The trial court did not address the merits of
any issue in Appellant’s Rule 1925(b) statement.
By memorandum of September 18, 2018, we remanded with
instructions for the trial court to accept Appellant’s Rule 1925(b) statement
nunc pro tunc and to file a Rule 1925(a) opinion addressing the issues in
Appellant’s statement. On December 19, 2018, the trial court filed its opinion.
The trial court summarized the evidence as follows:
At the time of trial, K.E.[] was 14 years old and lived with her
grandparents. Before moving to her grandparent[s’] home, K.E.
lived with her mother, [Appellant] and her younger brother. K.E.
testified that she spent most of her time in her bedroom to avoid
her mother and [Appellant], her stepfather, yelling at her. She
testified that family members in the household rarely spoke to
each other.
K.E. recalled that the sexual contact by [Appellant] began when
she was ten years old. She recalled being perplexed upon
awakening one morning to find that all of her clothes had been
removed. Following that incident, [Appellant] began grabbing or
smacking her behind or touching her breast on top of her clothes
when she passed him in the hallway of the home. [Appellant]’s
sexual contact with K.E. would occur in the family room, where he
would summon her by text and tell her to sit on his lap.
[Appellant] removed K.E.’s clothes, touched her breasts and
buttocks, and digitally penetrated her vagina. K.E. testified that
[Appellant] touched her breast and vagina with his mouth. K.E.
testified that [Appellant] touched her vagina with his mouth on
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more than one occasion, sometimes in her bedroom and
sometimes in her parents’ bedroom. The contact occurred daily
or every other day, typically when her mother was either sleeping,
in the shower or outside the home. K.E. recalled an incident which
occurred while her mother was in the shower when [Appellant]
had K.E. sit on his lap on her bunkbed, with his boxer shorts pulled
down. K.E. lifted herself up, by hanging onto the wood rail of the
bed, to attempt to avoid contact with [Appellant]’s penis.
[Appellant] left the room when K.E.’s mother got out of the
shower.
K.E. testified that she did not tell anyone of the abuse because
she did not think anyone would believe her and because she
viewed [Appellant] as a father figure from whom she wanted love.
Although [Appellant] required K.E. to stay in her room most of the
time, he increasingly allowed her out of her room to take her
shopping, out to eat or on his boat. [Appellant] occasionally told
K.E. that he loved her.
K.E.’s mother, Laura Thomas[,] testified that in 2009, following
the birth of K.E.’s brother, problems arose in the marriage. Ms.
Thomas testified that she suffered postpartum depression and had
difficulty caring for the children. Ms. Thomas testified that
[Appellant] was rarely home to help. In 2014, Ms. Thomas
learned that [Appellant] was having an affair.
In late September 2015, K.E. disclosed the abuse to a staff
member at her school. Ms. Thomas received contact by either the
police or Children and Youth Services. On September 29, 2015,
the Lower Paxton Township Police Department received a report
of child abuse and sexual assault of a victim, K.E. Police obtained
authorization to conduct a one-party consent electronic intercept.
With the consent of her grandmother, with whom she was living,
K.E. agreed to participate. In a series of text messages, K.E.
texted [Appellant] at the direction of detectives. K.E. asked
[Appellant] to explain why he [had] touched her that way, to
which [Appellant] responded, “I should not have done anything
that made you uncomfortable. There’s no explanation for it. I
understand that it is hard to ask feeling this way (sic). I should
not have done anything to make this happen. You did nothing
wrong!” In another message, [Appellant] stated, “I am sorry that
this happened. Cannot express that enough.” [Appellant] also
stated, “You’re fine. Nothing will happen again. You have my
word” and “I do love you and want to make this better for you.
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There is no explanation I can give, so I need to know how to make
this better for you.” The intercept concluded at 11:30 p.m. on
September 30, 2015. Police arrested [Appellant] the following
evening.
When questioned by police, although [Appellant] initially
expressed shock at the allegations, he proceeded to make
admissions. [Appellant] admitted that he touched K.E.’s breasts
and buttocks on top of her clothing and that when he walked into
K.E.’s room and saw her in her underwear, “it made his mind
wander.” [Appellant] admitted that while Ms. Thomas was in the
shower, he touched K.E.’s bare breasts and vagina. He admitted
to putting his mouth on K.E.’s breast and vagina and having her
sit on his lap. [Appellant] told police that the touching occurred
in K.E.’s bedroom or the living room while Ms. Thomas was in the
shower. [Appellant] stated that K.E. was 11 years old at the time.
At one point during the interview, [Appellant] told police that he
felt like he was going to be sick, that he was sorry for what he had
done, and thought many times about “putting a gun in [his]
mouth.”
Following his arrest, [Appellant] texted Ms. Thomas to ask her to
post bail for him and if they could reconcile. In those text
messages, [Appellant] did not state that the abuse of which he
was accused did not occur. In one text to Ms. Thomas, [Appellant]
stated, referring to K.E., “she doesn’t want to hurt a fly, but she
wanted to get this off her shoulders.”
[Appellant] testified that the admissions made to police were
taken out of context and that he made them because he feared
ramifications if he did not agree with them.
Trial Court Opinion, 12/19/18, at 3-6.
Appellant raises the following issues on appeal:
A. Did the trial court err by denying the defense request for an in
camera review and the disclosure of relevant diagnoses, opinions,
evaluations, observations, and treatment plans that were not
confidential communications protected from disclosure by 42
Pa.C.S.A. § 5944[?]
B. Did the trial court err in denying [A]ppellant’s motion for a new
trial when the jury’s verdict was against the weight of the evidence
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because the Commonwealth failed to meet its burden to sustain
the alleged charges?
C. Did the trial court abuse its discretion when it imposed
consecutive sentences where [A]ppellant’s conduct was limited to
a single incident and not so egregious as to warrant a four to eight
(4-8) year sentence?
D. Did the trial court err in denying [A]ppellant’s request to submit
a concise statement of matters nunc pro tunc?
Appellant’s Brief at 9.
In his first argument, Appellant contends that the trial court erred by
denying his request for disclosure of records held by Cornerstone Counseling
concerning Cornerstone’s communications with K.E.’s grandmother and its
diagnoses, opinions, evaluations, observations, and treatment plans relating
to K.E. The Commonwealth counters that Cornerstone’s records are privileged
under the psychiatrist-patient privilege in Section 5944 and the privilege
governing communications with sexual assault counselors in Section 5945.1.
Prior to trial, counsel for Appellant filed a petition seeking disclosure of
therapy and counseling records. Counsel asserted:
It has been brought to [Appellant’s] attention that the initial
disclosure of the alleged acts was made to a counselor during a
therapy session on September 28, 2015 at Cornerstone
Counseling, PC, 6011 Jonestown Road, Harrisburg, PA 17112
[Cornerstone]. The defense has a good faith basis to believe that
statements made to the therapist in that session and the records
contain prior statements of the complaining witness regarding the
alleged act. These statements are believed by the defense to
contain information related to the complaining witness[’s] motive
[to] fabricate the allegations and evidence of coaching by her
mother and grandmother. Further, the defense has recently
learned that the grandmother spent 4-5 hours with the counselor
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prior to the session on 28 September when the accusation was
made.
Petition, ¶ 3. Appellant requested that the trial court review all information in
Cornerstone’s records in camera and disclose all non-privileged information.
Subsequently, Appellant filed a supporting memorandum of law in which he
requested records of K.E.’s grandmother’s meeting with the counselor and
records containing diagnoses, opinions, evaluations, observations, and
treatment plans.
In response, the Commonwealth filed a memorandum alleging the
following:
On September 29, 2015, Lower Paxton Police received a referral
from Dauphin County Children and Youth regarding an abuse
allegation made by a victim K.E., thirteen years of age. The
following day, both the CYS caseworker and Detective Autumn
Lupey met with the subject child and her grandmother. Her
grandmother, Roberta Ebersole, indicated that when the child was
at a counseling session on September 28, 2015, she disclosed to
her therapist that she was being molested by her stepfather,
[Appellant]. The therapist indicated that she would be notifying
Children and Youth Services. In the meantime, pending the
investigation, the counselor advised that the child should not have
contact with the alleged perpetrator.
The child was interviewed by Det[ective] Lupey on September 30,
2015. At that time, she described various incidents of sexual
abuse by [Appellant]. As a result of those disclosures, the police
discussed the prospect of doing a recorded intercept with the
child. She agreed and consent was also given by her
grandmother. During the intercepted text messages with
[Appellant], he made admissions concerning the abuse. Police
then interviewed [Appellant] and he gave a confession to touching
the child on her breasts and vagina (with his mouth) when she
was eleven years old. After being interviewed and admitting to
the conduct, [Appellant] was arrested for Rape of a Child and
related offenses.
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Commonwealth’s Memorandum Of Law To Prevent Release of Cornerstone
Counseling Records, at 1-2. Based on these allegations, the Commonwealth
contended that all information was privileged under Sections 5944 and
5945.1.
The trial court concluded that Appellant had no right to any documents
or in camera review. The court stated:
Because the absolute privilege against disclosure applies to the
records of statements of K.E. during counseling, we properly
denied in camera review by the [c]ourt or counsel. Even an in
camera review of the records of a child sexual abuse victim’s
treatment with a licensed psychotherapist would violate the
absolute privilege against disclosure . . .
We denied [Appellant’s] Petition based upon the request
articulated therein, records of statements made by the victim to
the therapist. [Appellant]’s unsupported averment that the
defense learned of K.E.’s grandmother[’s] communication with the
counselor in advance of K.E.’s treatment session fails to state a
basis upon which we may subject K.E.’s statements to disclosure.
The bald allegation, lacking in supporting facts, failed to warrant
an evidentiary hearing. Rather, it placed the [c]ourt in the
position of having to decipher on what basis an exception to the
privilege might exist. We properly declined to do so.
[Appellant] sought to further expand the records request in his
Memorandum in Support of [his Petition] with legal discussion
related to the discoverability of the diagnoses, opinions,
evaluations and treatment plans of the therapist. [Appellant]’s
Memorandum failed to properly place such request before the
[c]ourt by way of petition and proffer of evidence. We therefore
limited our review to the request as presented by [the] Petition
and declined to expose privileged records to perusal based upon
argument in a memorandum.
Trial Court Opinion, 12/19/18, at 11-12 (emphasis in original).
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“Pennsylvania law does not favor evidentiary privileges.” In re
Subpoena No. 22, 709 A.2d 385, 388 (Pa. Super. 1998). “Thus, courts
should accept testimonial privileges only to the very limited extent that
permitting a refusal to testify or excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing all rational means
for ascertaining the truth.” Commonwealth v. Stewart, 690 A.2d 195, 197
(Pa. 1997).
A sexual offense defendant’s entitlement to an alleged victim’s records
held by an agency, hospital, rape crisis center or other third party depends
upon the scope of any privilege that may protect the confidentiality of the
victim’s records. Commonwealth v. Eck, 605 A.2d 1248, 1251 (Pa. Super.
1992). In the case of statutory privileges such as Sections 5944 and 5945.1,
the scope of the privilege rests upon the language of the statute. Id. at 1252.
“Generally, in reviewing the propriety of a discovery order, our standard of
review is whether the trial court committed an abuse of discretion. However,
to the extent that appellate courts are faced with questions of law, [our] scope
of review is plenary.” Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super.
2010).
The party asserting privilege against discovery of requested materials
bears the burden of proof of demonstrating that the materials are protected
from disclosure. Fisher v. Erie Insurance Exchange, —A.3d—, 2021 WL
2622486, *6 (Pa. Super., Jun. 25, 2021) (en banc). The party invoking a
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privilege must initially set forth facts showing that the privilege has been
properly invoked. Id. Once the invoking party has made the appropriate
proffer, the burden shifts to the party seeking disclosure to set forth facts
showing that disclosure should be compelled either because the privilege has
been waived or because an exception to the privilege applies. Id. If the party
asserting the privilege does not produce sufficient facts to show that the
privilege was properly invoked, the burden never shifts to the other party, and
the material is not privileged. Id.In Fisher, following detailed review of applicable precedents, this Court
defined the circumstances in which the court should review alleged privileged
materials in camera. Fisher held that
when a request has been made that on its face seeks protected
materials, and the responding party clearly sets forth facts that
leave no doubt as to the applicability of any privilege, in camera
review is not permitted and doing so would violate privilege.
Farrell [v. Regola, 150 A.3d 87 (Pa. Super. 2016)]. Where,
however, the request made and the assertion of privilege by the
responding party and/or the proofs offered by the requesting
party render a court unable to determine an issue of privilege, an
in camera examination is appropriate and fully supported by our
case law. Gocial [v. Independence Blue Cross, 827 A.2d 1216(Pa. Super. 2003)]; Ignelzi [v. Ogg, Cordes, Murphy and
Ignelzi, LLP, 160 A.3d 805 (Pa. Super. 2017)]; T.M. [v. Elwyn,
950 A.2d 1050 (Pa. Super. 2008)]. This approach strikes an
appropriate balance between preserving privilege and protecting
a party's right to discoverable material.
Id. at *10. We also stated:
Where a record is clear that privilege properly has been invoked
and any evidence of a requesting party has not refuted this
showing, in camera review, which would invade privilege, is
inappropriate . . . Where, however, privilege has been asserted
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but facts have been presented that an exception to privilege may
apply, a court in its discretion may order in camera review of the
disputed materials.
Id. at *11.
With this procedural framework in place, we examine whether K.E.’s
grandmother’s communications with Cornerstone are privileged under
Sections 5944 and 5945.1. Section 5944 provides:
No psychiatrist or person who has been licensed under the Act of
March 23, 1972 (P.L. 136, No. 52) to practice psychology shall be,
without the written consent of his client, examined in any civil or
criminal matter as to any information acquired in the course of his
professional services on behalf of such client. The confidential
relationship and communications between a psychologist or
psychiatrist and his client shall be on the same basis as those
provided or prescribed by law between an attorney and client.
42 Pa.C.S.A. § 5944. The purpose of this privilege is to “protect confidential
communications made and information given by the client to the
psychotherapist in the course of treatment.” Farrell, 150 A.3d at 97-98; see
also Gormley, 995 A.2d at 1204 (privilege “aid[s] in the effective treatment
of the client by encouraging the patient to disclose information fully and freely
without fear of public disclosure”).
The psychotherapist-patient privilege applies only to “information
acquired in the course of [the psychiatrist’s or psychologist’s] professional
services on behalf of [the] client.” 42 Pa.C.S.A. § 5944; see also T.J.W.,
114 A.3d at 1105. The privilege applies not only to communications with the
therapist but also to communications with other individuals on the patient’s
treatment team who are not themselves psychotherapists. Commonwealth
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v. Cook, 231 A.3d 913, 922 (Pa. Super. 2020). Furthermore, under Section
5944’s second sentence, any exceptions that apply to the attorney-client
privilege also apply to the psychiatrist/psychologist-patient privilege. For
example, any communications between the patient and the therapist are not
privileged if they are made in the presence of third persons who are not part
of the patient’s treatment team. Cf. Commonwealth v. Mrozek, 657 A.2d
997, 998 (Pa. Super. 1995) (for attorney-client privilege to apply,
communication must relate to facts of which attorney was informed by his
client, without presence of strangers, for purpose of securing either an opinion
of law, legal services, or assistance in a legal matter).
Applying Fisher’s framework, id., 2021 WL at 2622486, *10-11, we
conclude that in camera review of Cornerstone’s records is necessary to
determine whether Section 5944 applies to K.E.’s grandmother’s
communications. Counsel alleged that K.E.’s grandmother met with a
Cornerstone representative at a specific time (in advance of K.E.’s September
28, 2015 session) and for a specific length of time (four to five hours).
Counsel made this allegation in “good faith.” Petition, ¶ 3. Counsel’s
allegations raise two questions under Section 5944: (1) whether
communications to Cornerstone from non-patients such as K.E.’s grandmother
constitute “information” acquired “in the course of” Cornerstone’s
“professional relationship on behalf of” K.E, and (2) whether Cornerstone’s
“professional relationship” began “on behalf of” K.E. when Cornerstone
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conferred with a non-patient, K.E.’s grandmother, or when Cornerstone
subsequently conferred with K.E. herself. Id. To resolve these questions, the
trial court on remand should (1) examine Cornerstone’s records of K.E.’s
grandmother’s communications in camera to learn what, if anything, K.E.’s
grandmother said and (2) determine whether these communications fall within
the boundaries of Section 5944. In addition, the court may, in its discretion,
hold an evidentiary hearing to receive non-privileged evidence on any element
within Section 5944 (for example, whether the Cornerstone employee who
met with K.E.’s grandmother was a psychiatrist, licensed psychologist or was
on K.E.’s treatment team).
Although the trial court characterized counsel’s request as a “bald
allegation, lacking in supporting facts,” Trial Ct. Op. at 12, we think counsel’s
good faith assertion that K.E.’s grandmother met with Cornerstone for four to
five hours in advance of K.E.’s meeting is sufficiently detailed to warrant in
camera review of Cornerstone’s documentation of this event.
We also observe that the present case is distinguishable from Farrell,
in which this Court held, inter alia, that mental health treatment records of
one of the defendants were not subject to in camera review. In Farrell, a
wrongful death and survival action, the plaintiff sought documents authored
by a licensed psychologist and a licensed clinical social worker during
treatment sessions with one of the defendants. The defendant produced
privilege logs setting forth the dates and nature of these documents. The trial
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court held that it intended to disseminate any communication by the
defendant concerning the events surrounding the plaintiff’s decedent’s death.
This Court accepted the case for collateral review and reversed, reasoning that
the treatment records not only were privileged under Section 5944 but also
were not subject to in camera review. Id. at 95 (“[i]f materials are privileged,
no one, not even a trial judge, may have access to them”).
In Fisher, we explained Farrell’s decision to preclude in camera review
as follows:
The fact that the requests made and the privilege logs produced
in Farrell so clearly invoked privilege, places in context this
Court's statement that if materials are privileged, no one, not even
a judge, may have access to them. The requests on their face
clearly asked for privileged documents. Counsel’s response and
privilege logs were precise enough to leave no question as to the
applicability of privilege. The respective burdens of proof were
satisfied to make any in camera review unnecessary. In fact, it
would have been error for the trial court to conduct an in camera
review, as there was no need to review documents, and therefore
invade privilege, to determine if documents were privileged, given
the requests and responses thereto. Discovery requests were
made and privilege objections were asserted. Defense counsel
met the burden of proof of establishing the privileged nature of
the requested documents through the precise detail on the
privilege logs. The burden then shifted to requesting counsel to
come forth with reasons why privilege should not apply. He did
not do so, thus leaving the question of privilege to be determined
as a matter of law by the trial court.
Id., 2021 WL 2622486, at *9.
The present case differs from Farrell because Appellant did not ask for
documents that were privileged on their face (for example, K.E.’s own
communications with a Cornerstone therapist). Instead, the documents that
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Appellant requested may or may not fall within the privilege, and in camera
review is the only way to resolve this issue. In addition, unlike in Farrell, the
Commonwealth did not produce privilege logs that “were precise enough to
leave no question as to the applicability of privilege.” Fisher, 2021 WL
2622486, at *9 (discussing Farrell). The Commonwealth merely made a
blanket assertion of privilege which did nothing to resolve the privilege issue.
Once again, in camera review is the only mechanism available to resolve the
issue.
Next, we address whether K.E.’s grandmother’s communications are
privileged under Section 5945.1, the sexual assault counselor privilege, which
provides in relevant part:
(a) Definitions.- As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
“Confidential communication.” All information, oral or written,
transmitted between a victim of sexual assault and a sexual
assault counselor in the course of their relationship, including, but
not limited to, any advice, reports, statistical data, memoranda,
working papers, records or the like, given or made during that
relationship, including matters transmitted between the victim
through the use of an interpreter.
“Rape crisis center.” Any office, institution or center offering
assistance to victims of sexual assault and their families through
crisis intervention, medical and legal accompaniment and follow-
up counseling.
“Sexual assault counselor.” A person who is engaged in any office,
institution or center defined as a rape crisis center under this
section, who has undergone 40 hours of sexual assault training
and is under the control of a direct services supervisor of a rape
crisis center, whose primary purpose is the rendering of advice,
counseling or assistance to victims of sexual assault.
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“Victim.” A person who consults a sexual assault counselor for the
purpose of securing advice, counseling or assistance concerning a
mental, physical or emotional condition caused or reasonably
believed to be caused by a sexual assault. The term shall also
include those persons who have a significant relationship with a
victim of sexual assault and who seek advice, counseling or
assistance from a sexual assault counselor concerning a mental,
physical or emotional condition caused or reasonably believed to
be caused by a sexual assault of a victim.
(b) Privilege.-
(1) No sexual assault counselor may, without consent of the
victim, disclose the victim’s confidential oral or written
communications to the counselor nor consent to be examined in
any court or criminal proceeding.
(2) No co-participant who is present during the counseling may
disclose a victim’s confidential communication made during the
counseling session nor consent to be examined in any civil or
criminal proceeding without the written consent of the victim.
42 Pa.C.S.A. § 5945.1.
Section 5945.1 prohibits disclosure of any “confidential oral or written
communication” transmitted between the “victim of sexual assault” and a
“sexual assault counselor” in the course of their relationship, absent the
victim’s consent. It is an absolute privilege that is not overcome even by the
constitutional rights of a criminal defendant. V.B.T. v. Family Services of
Western Pennsylvania, 705 A.2d 1325, 1329 (Pa. Super. 1998).
A “victim” is the person seeking consultation for a condition caused by,
or reasonably caused by, a sexual assault. 42 Pa.C.S.A. § 5945.1(a). Notably,
a “victim” also includes “those persons who have a significant relationship with
a victim of sexual assault” concerning a condition caused or reasonably
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believed to be caused by a sexual assault of a victim. A “sexual assault
counselor” is an individual who has undergone the training required under the
statute and who is under the control of a direct services supervisor of a rape
crisis center. Id. A “rape crisis center” is “any office, institution or center
offering assistance to victims of sexual assault and their families through crisis
intervention, medical and legal accompaniment and follow-up counseling.”
Id.
The trial court denied Appellant’s petition for disclosure without
conducting in camera review of Cornerstone’s records. Applying Fisher, we
conclude, based on the allegation in Appellant’s petition of K.E.’s
grandmother’s four-to-five hour meeting with a Cornerstone counselor, that
the trial court should (1) review Cornerstone’s records of this meeting in
camera to determine what, if anything, Grandmother said, and (2) determine
whether Grandmother’s statements fit within the boundaries of Section
5945.1. In addition, the court may, in its discretion, hold an evidentiary
hearing during which the parties may present non-privileged evidence as to
any element within Section 5945.1 (for example, whether K.E.’s grandmother
has a “significant relationship” with K.E. or whether the person with whom
K.E.’s grandmother met at Cornerstone was a “sexual assault counselor”).
Following in camera review and any other proceedings, the trial court
shall enter written findings of fact and conclusions of law concerning whether
Appellant is entitled to relief as a result of the pretrial order denying access to
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Cornerstone’s records relating to K.E.’s grandmother’s communications. Two
conditions must be satisfied in order for Appellant to obtain relief. First, the
records must fall outside both privileges, that is, both Sections 5944 and
5945.1. If the records fall outside both privileges, the court must examine
whether denial of access to these records prejudiced Appellant by applying
the harmless error standards articulated in Commonwealth v. Story, 383
A.2d 155 (Pa. 1978), and its progeny.2
Next, we address Appellant’s argument that the court erred by denying
his request for Cornerstone’s records of diagnoses, opinions, evaluations and
treatment plans pertaining to K.E. The psychotherapist-patient privilege in
Section 5944 does not apply to opinions, observations, diagnosis, and
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2 Under Story, an error is prejudicial “only if the appellate court is convinced
beyond a reasonable doubt that the error is harmless.” Id. at 162. Error is
harmless only where:
(1) the error did not prejudice the defendant or the prejudice was
de minimis; or (2) the erroneously admitted evidence was merely
cumulative of other, untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Taylor, 209 A.3d 444, 450 (Pa. Super. 2019). Taylor
adds that “harmless error exists where the appellate court is convinced beyond
a reasonable doubt that the erroneously admitted evidence could not have
contributed to the verdict. If there is a reasonable probability that an error
may have contributed to the verdict, the error is not harmless.” Id.- 18 -
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treatment alternatives outlined by the professionals who interview the patient.
Farrell, 150 A.3d at 98. Nor does the sexual assault counselor privilege in
Section 5945.1 apply to these records, since Section 5945.1 is limited to
confidential communications from a victim to a sexual assault counselor.
Accordingly, we order a similar remedy with regard to these records as we did
above with regard to records of K.E.’s grandmother’s communications. We
remand to the trial court for in camera review of Cornerstone’s records to
identify any diagnoses, opinions, evaluations and treatment plans pertaining
to K.E. Following in camera review, the court should enter written findings of
fact and conclusions of law as to whether any such records exist and whether
denial of access to these records prejudiced Appellant by once again applying
the harmless error standards articulated in Story.
Given our decision to remand on the subjects of privilege, we find it
premature at this time to address the other issues raised in this appeal.
Instead, we retain jurisdiction, and pursuant to this Court’s authority under
Pa.R.A.P. 1701(b)(5), we direct the trial court to complete the proceedings
outlined above, including the entry of all written findings of fact and
conclusions of law, as expeditiously as possible. Upon the entry of the trial
court’s decision, either party to this appeal may file a supplemental or first-
time 1925(b) statement within 21 days of the entry of the trial court’s decision
and in the manner provided under Pa.R.A.P. 1925(b)(1). The trial court should
then proceed expeditiously to address the issues raised in those statements,
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issue a supplemental Rule 1925(a) opinion, certify a supplemental record, and
return the original and supplemental records to this Court. Upon receipt of
the trial court’s submissions, we will proceed further to consider this appeal
and, if necessary, direct the filing of supplemental briefs by the parties. To
assist the trial court on remand, we direct the Clerk of this Court to transmit
the original and supplemental certified records to the trial court.
Case remanded for further proceedings in accordance with this
memorandum. Jurisdiction retained. Appellant’s application for relief in the
form of a praecipe for final decision on appeal denied as moot. Appellant’s
motion to seal brief and reproduced record denied.
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