In the Interest of: J.M.G., a Minor

J-A26027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.M.G. :
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: No. 476 MDA 2017
Appeal from the Order Entered March 15, 2017
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2017-3322-CV,
CP-21-JV-0000206-2014
BEFORE: BOWES, J., OLSON, J., and RANSOM*, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED MAY 18, 2018
The learned majority presents a scholarly expression of rationale. I
agree with the finding that the trial court violated Appellant’s psychiatrist-
patient privilege by failing to adequately redact the April 7, 2015 psychiatric
evaluation performed by Rocco Manfredi, M.D., before it submitted the
document to the Sex Offender Evaluation Board (“SOAB”) for its assessment
of Appellant pursuant to Act 21 of 2003 (“Act 21”).1 Accordingly, I adopt that
portion of the majority memorandum in its entirety. However, unlike my
esteemed colleagues, I do not believe that the myriad violations of the
psychiatrist-patient privilege in this case can be relegated to harmless error.
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1 Act 21, 42 Pa.C.S. § 6401, amended the Juvenile Act to include procedures
for the assessment and civil commitments of sexually violent juveniles who
have been adjudicated delinquent. In Re K.A.P., 916 A.2d 1152, 1156 n.3
(Pa.Super. 2007)
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* Retired Senior Judge assigned to the Superior Court.
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Thus, I do not join the majority’s decision to affirm the order of civil
commitment.
As codified in 42 Pa.C.S § 5944, the psychiatrist-patient privilege
provides a follows:
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 relations 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. § 5944.
The privilege is designed to protect disclosures made by patients during
the course of treatment. Commonwealth v. Carter, 821 A.2d 601
(Pa.Super. 2003). It is intended to aid in the effective treatment of a mental
health patient by encouraging the patient to disclose information fully and
freely without fear of public exposure. In re T.B., 75 A.3d 485 (Pa.Super.
2013). Stated another way, its purpose is to inspire confidence in the patient
that the information he provides will not be used against him. Gormley v.
Edgar, 995 A.2d 1197 (Pa.Super. 2010).
In In re T.B., this Court applied § 5944 within the framework of an Act
21 assessment. In invoking the statutory privilege, we recognized “that the
confidential statements the law protects ‘are the key to the deepest, most
intimate thoughts of an individual seeking solace and treatment,’ and may not
be readily disclosed.” In re T.B., supra at 496 (quoting Gormley, supra at
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1204). Thus, as we held in In re T.B., a juvenile’s statements made to a
mental health professional during treatment are privileged, and absent written
consent, the statements may not be released to the SOAB. Id. at 497.
As the majority observed, the Commonwealth’s expert, SOAB member
Robert M. Stein, Ph.D., opined from his review of the partially redacted records
provided by the trial court that Appellant met the criteria for civil commitment
under Act 21 because Appellant suffered from a mental abnormality such that
he is likely to commit violent sexual acts if released into the community. While
the majority notes that Dr. Stein’s opinion was formed, at least in part, in
reference to the April 7, 2015 psychological evaluation performed by Dr.
Manfredi, wherein Appellant admittedly made several incriminating
revelations for the purpose of his treatment, it concludes that the disclosure
was tantamount to harmless error. I disagree.
An error is harmless if “the appellate court determines that the error
could not have contributed to the verdict.” Commonwealth v. Rush, 605
A.2d 792, 794 (Pa. 1992). Rephrased for clarity, “an error cannot be harmless
if there is a reasonable possibility the error might have contributed to the
conviction.” Commonwealth v. Cooley, 118 A.3d 370, 380 (Pa. 2015). As
we recently reiterated,
Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minimis; (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
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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. Radecki, 180 A.3d 441, 461 (Pa.Super. 2018) (quoting
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002)).
The majority provides two independent bases to find harmless error: 1)
Appellant’s expert did not contest Dr. Stein’s assessment of a mental disorder
and predisposition to commit violent sexual acts; and 2) Dr. Stein’s opinion
was not influenced by the privileged communication. In my view, neither
ground permits us to ignore the blatant violations of the psychiatrist-client
privilege in this case, especially in light of the purpose of the privilege and the
public policy that it was designed to reinforce, i.e., to inspire confidence that
the information patients provide in furtherance of treatment will not be used
against them.
First, I believe application of the harmless error doctrine is inappropriate
in the present scenario. I note that this Court did not envision the application
of the harmless error analysis in In re T.B., supra. Instead, having found
that the trial court erred in forwarding unredacted treatment documents to
the SOAB for its Act 21 assessment, we simply vacated the civil commitment
order and remanded the matter for the trial court to “to determine whether
the statements, evaluations and summaries at issue were completed for
treatment purposes.” Id. at 496. Tellingly, we instructed the trial court that,
if “the statements, evaluations, and summaries were made for treatment
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purposes and the juvenile was not represented by counsel and informed of his
right against self-incrimination, the court shall vacate the determination of
the SOAB and may resubmit the matter for evaluation by the Board without
access to the records in question.” Id. at 497 (emphasis added). As it is clear
in the case at bar that Appellant’s statements and admissions were made for
treatment purposes and that he was neither represented by counsel nor
informed of his right against self-incrimination, I would vacate the civil
commitment order and direct that the SOAB perform a new assessment that
does not implicate Appellant’s privileged communications.
Second, even if a harmless error analysis is appropriate in Act 21 cases,
I do not believe it would be warranted herein, where the SOAB assessment
was obviously tainted by the consideration of Appellant’s privileged
communications. While the majority notes the SOAB’s reference to Dr.
Manfredi’s 2015 evaluation report, it neglects to acknowledge that said report
specifically referenced a prior psychiatric evaluation performed by Craig A.
Taylor, M.D. on October 11, 2013. That earlier evaluation contained additional
damning statements that Appellant made to his physicians for the purpose of
treatment.
My review of the two psychiatric evaluations exposes the following
revelations that Appellant made to mental health professionals during
treatment. In January 2013, Appellant reported “command auditory
hallucinations,” including “hallucinations of his biological mother’s voice telling
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him to hurt himself and others.” Psychiatric Evaluation, 10/11/13, at 1, 2.
Nine months later, he “admitted to having inappropriate sexual contact with
a younger adoptive sister as well as foster siblings when in the adoptive
home.” Id. at 1. During the interview phase of the 2013 evaluation, Appellant
“state[d] that he had heard voices and things over the past weekend but could
not ‘really say’ what they were and did not want to talk about it.” Id. at 4.
In addition, “[h]e denie[d] suicidal ideations, homicidal ideation or urges to
harm [him]self or others.” Id.
The subsequent evaluation by Dr. Manfredi confirmed Appellant’s earlier
reports of hallucinations. Moreover, the juvenile advised Dr. Manfredi “that
over the past few years[,] voices have told him to harm others. They also tell
him the future. He claims that it is different voices and [it] will occur
randomly.” Psychiatric Evaluation, 4/7/15, at 2. However, “[h]e denied
thought insertion, thought broadcasting, [and] thought withdrawal.” Id.
Similarly, Appellant “denied obsessions, compulsions and phobias.” Id. at 3.
Significantly, as it relates to the content of the information that was
incorporated into Dr. Stein’s SOAB assessment, Appellant previously revealed
to his mental health professionals that he abused his younger sister, reviewed
pornography “almost on a daily basis,” and “acknowledge[d] rape force
fantasies.” Id. In addition, Dr. Stein recalled, “[Appellant] has self-reported
behaviors of a paraphiliac or sexually deviant nature that has included
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exposing himself, sex with animals, peeping[-]Tom type behaviors, and
fondling of young girls.” N.T., 3/13/17, at 13.
All of the foregoing privileged information was improperly submitted to
the SOAB without adequate redaction, either directly or included within the
sources that Dr. Stein reviewed to make his determination. Furthermore, my
review of the certified record belies the majority’s contention that “Dr. Stein’s
opinions on Appellant’s mental abnormalities and his likeliness to commit
sexually violent acts if released into the community were not influenced by
the documents improperly sent the SOAB in unredacted form.” Majority
Memorandum at 12. In actuality, Dr. Stein testified that he utilized all of the
information that he was provided about Appellant, including “statements that
he made while in treatment to various mental health professionals.” N.T.,
3/13/17, at 24. Furthermore, Dr. Stein confirmed that Appellant’s statements
were made for the purposes of treatment, and he acknowledged that, to his
knowledge, the juvenile was not advised of his right against self-incrimination
and the information was released to the SOAB without the juvenile’s written
consent. Id. at 24, 25-26. Moreover, contrary to the majority’s classification
of Appellant’s revelations as inconsequential, Dr. Stein deemed the various
statements significant. Indeed, as set forth, infra, Dr. Stein expressly
characterized the information in terms ranging from “component[s] of the
analysis” to “important” to “extremely important.” Id; N.T., 12/19/16, at 28,
32. Thus, I cannot countenance the conclusion that the multiple violations of
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the psychiatrist-patient privilege, some of which I outlined supra, did not
influence Dr. Stein’s ultimate conclusion regarding Appellant’s mental
abnormalities and his likeliness to commit sexually violent acts if released into
the community.
Dr. Stein first presented the SOAB assessment report to the trial court
during the December 19, 2016 dispositional review hearing to determine
whether probable cause existed to begin the civil commitment process under
§ 6358(e). During cross-examination, Dr. Stein confirmed that the
statements Appellant made to his mental health treatment professionals,
including self-reported offenses that were never charged, were “important” to
forming the opinion presented in his SOAB assessment report. N.T.,
12/19/16, at 28. He subsequently reiterated that the disclosures and self-
reported deviant behaviors were “part of . . . the entire evaluation” and
explained that a maintenance polygraph test, which Dr. Stein characterized
as “of most concern for this type of proceeding,” was populated with questions
that were derived from Appellant’s prior statements to mental health
professionals during treatment. Id. at 29, 31. Dr. Stein stated that
Appellant’s revelations regarding prior sexual activities and ideations were
“extremely important” to his assessment. Id. at 32.
Later, during the formal Act 21 involuntary commitment hearing, Dr.
Stein again presented the SOAB assessment report, testified about its
preparation, and reiterated that he relied upon Appellant’s self-reporting as a
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component in his determination regarding Appellant’s likelihood to reoffend.
N.T., 3/13/17, at 16. In fact, Dr. Stein unabashedly identified Appellant’s self-
disclosed cognitive distortions as an example of the juvenile’s “questionable
internal motivation for change.” Id. at 16-17. Likewise, after summarizing
Appellant’s psychiatric diagnoses, Dr. Stein opined, “given this collection of
disorders all related to impulse control problems and the history of pedophiliac
behavior or sexual behavior with children, taken together there is sufficient
evidence for a mental abnormality that would predispose to sexual offending.”
Id. at 14. Hence, the certified record bears out that the SOAB considered the
privileged statements in its assessment.
Contrary to the majority, I believe that the foregoing disclosures that
Appellant provided during the course of his mental health treatment
undoubtedly formed part of Dr. Stein’s expert conclusion regarding Appellant’s
likeliness to commit sexually violent acts if released into the community. From
my perspective, the consideration of the privileged statements that Appellant
made for the purposes of treatment, including reports of auditory
hallucinations and various admissions to sexually deviant behaviors, tainted
the board’s conclusion that involuntary civil commitment was warranted
pursuant to 42 Pa.C.S. 6403(a)(3). Unlike my learned colleagues, I do not
believe that we can sidestep the stain of unauthorized disclosure by combing
the record for an independent basis to find the error harmless.
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Thus, consistent with our directive in In re T.B., supra, I would remand
the matter for a new civil commitment hearing utilizing a SOAB assessment
that was not complied by individuals whose outlook was tainted by exposure
to privileged mental communications.
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