J

- A27035

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2020 PA Super 31

* Reti red Senior Judge assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA

v.

BRANDON A. SEGARRA

APPEAL OF: COMPLAINANT WITNESS, D.G., A MINOR : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 3097 E DA 2018 Appeal from the Order Entered September 20 , 2018 in the Court of Common P leas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0010618

- 2017
BEFORE: BOWES , J., SHOGAN , J. and STRASSBURGER , J.*

OPINION BY STRASSBURGER, J.: FILED FEBRUARY 10, 2020
D.G., a minor, appeals from a September 20, 2018 discovery order , where the trial court ora lly ordered D.G.’s legal counsel and guardian ad

litem (Child Advocate) to review D.G.’s mental health records and report her
findings to the trial court

. 1 We reverse.
We glean the following relevant factual and procedural history from

the record. In De cember 2017 , Brandon A. Segarra was charged with raping
D.G., and related crimes . The rape is alleged to have occurred in 2015 when
D.G. was 15 years old . In preparation for Segarra’s trial, t he
Commonwealth subpoenaed D.G.’s non - privileged medical recor ds from the

_________________ __________ ______ ____ _______ 1 We address the issue of appealability infra

.J

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Horsham Clinic, 2 where D.G. received mental health treatment. According to
the Commonwealth, t he subpoena specifically stated that the request

excluded mental health records. 3 Nonetheless, without notifying D.G. or
obtaining her consent, the Horsham Clinic disclosed D.G.’s mental health

records to the Commonwealth. The Commonwealth did not review the

records. 4 N.T., 9/20/2018, at 3 , 11.
On September 14, 2018, Segarra filed a motion to compel discovery of

D.G.’s mental health records. 5 The trial court held a hearing on the m otion
on September 20, 2018. Child Advocate appeared at the hearing, 6 along
with counsel for the Commonwealth and Segarra. D.G. and the
Commonwealth opposed the motion to compel based on the privileged

_________________ __________ ______ ____ _______ 2 The Horsham Clinic is a mental health treatment facility , which has inpatient and partial hospitalization programs for children and adolescents. See N.T., 9/20/2018, at 3

- 4.

3 See N.T., 9/2 0/2018, at 10. The subpoena does not appear in the certified record.

4 According to the Commonwealth, it turned the records over to Child Advocate, and they are no longer in the Commonwealth’s possession. Commonwealth’s Brief at 2, citing N.T., 9/20/201 8, at 11

- 12, 42.

5 See Certified Docket Entries, 9/14/2018. The motion to compel does not appear in the certified record. The certified docket also indicates the Commonwealth filed a motion in limine that same date, but similarly, it is not contained in the certified record before us.

6 Yu

- Qing (Jane) Kim, Esquire ap peared at the September 20, 2018 hearing. On August 1, 2019, Attorney Kim withdrew her appearance in this Court, and Barry Kassel, Esquire, entered his appearance as counsel and guardian ad litem for D.G.J

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status of D.G.’s mental health records. Segarra argued that based on his

constitutional right to confrontation, he was entitled to know what D.G.
disclosed during the course of her treatment at the Horsham Clinic to
determine whether it was consistent with other discovery in the case. T he
trial court agreed that D.G.’s mental health records are privileged under the

Mental Health and Procedures Act (MHPA) , 50 P.S. §§ 7101

- 7116, and
expressed concern that Segarra was on a “fishing expedition to find

inconsistent statements

. ” N.T., 9/20/2018, at 25, 39

- 41. However, the trial

court concluded that because the Horsham Clinic had already disclosed the
records, they were no longer subject to the same level of protection

. Id. at
40. The trial court orally ordered Child Advocate to review D.G.’s mental
health records for impeachment evidence and to report her findings to the

trial court. Id. at 39

- 41

. Further, the trial court left the door open to a
possible in camera review by the trial judge, who stated the following: “I

may do an in camera review myself and see whether or not I agree [with
Child Advocate] .” Id. at 44; see also id. at 41. Child Advocate stated her
opposition to the trial court’s order, and on October 18, 2018, she filed the
instant appeal on behalf of D.G.
The trial court held a status hearing on November 2, 2018, at which

Child Advocate and counsel for the parties appeared. Child Advocate
explained she filed the instant appeal on behalf of D.G. because, inter alia , it
required her to violate her ethical d uty to represent the interests of herJ

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clien t, D.G. N.T., 11/2/2018, at 6

. The trial court conceded it had erred

when it ordered Child Advocate to review D.G.’s mental health records for
impeachment evidence and to report her findings to the trial court. Id. at 6

-
7 , 13, 16

- 18 ; see also id. 23 (“Just so we’re perfectly clear as to [Child
Advocate’s] ethical issue, I’m not going to argue with you on that. ... That
was my mistake. I’ll be man enough to say, I made a mistake.”).

Nevertheless , the trial court d id not withdraw its September 20, 2018 order.
Instead, the trial court indicated it would “wait to see what [the Superior
Court] say[s].” Id. at 18; see also id. at 23 (“We’ll just wait until we get a
response [from the Superior Court].”).

The trial cour t did not order D.G. to file a statement pursuant to
Pa.R.A.P. 1925(b), but it did issue an opinion pursuant to Rule 1925(a) on January 25, 2019

. In its opinion, the trial court set forth relevant statutory
and case law, but in analyzing the merits of D.G .’s issues, d id not make any
determinations; rather, it asked this Court for guidance. See Trial Court
Opinion, 1/25/2019, at 11.
On appeal, D.G. claims her mental health records from the Horsham

Clinic are absolutely privileged and not subject to in cam era review. 7
Specifically, D.G. raises four issues for our review.

_________________ __________ ______ ____ _______ 7 The Commonwealth filed a brief in this appeal, arguing this Court should reverse the trial court’s September 20, 2018 order because D.G.’s mental health records are privileged and not subject to disclosure or in camera (Footnote Continued Next Page)J

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1. Did the trial cour t err when it ordered [] Child A dvocate to review [D.G.’s] privileged and confidential mental health records for inconsistent statements and report her findings to the tr ial court with the intention to possibly turn the statements [over] to [Segarra] as impeachment evidence against [D.G.]?

2. Were [D.G.’s] psychiatric records from her inpatient stay at the Horsham Clinic protected under 42 Pa.C.S.[] § 5944 and the Mental Hea lth Procedures [ sic ] Act under 50 P.S. § 7111 [,] thereby precluding the trial court and any other party from reviewing [D.G.’s] privileged and confidential mental health records?

3. Did Horsham Clinic’s error in sending [D.G.’s] mental health records to the Commonwealth without [D.G.’s] consent and knowledge waive [D.G.’s] privilege?

4. Would [Segarra’s] rights of confrontation and due process be violated if [] Child A dvocate, in possession of privileged and confidential mental health records that are statutori ly protected from disclosure, did not provide these records to the trial court for review?

D.G.’s Brief at 4

- 5.

APPEALABILITY
Preliminarily, we must determine whether the order from which D.G.
appeals is appealable, because appealability implicates our j urisdiction. In

the Interest of J.M. , 219 A.3d 645, 650 (Pa. Super. 2019). “Jurisdiction is
purely a question of law; the appellate standard of review is de novo and the
scope of review plenary.” Id. (citation and internal quotation marks

omitted ). In order to be appealable, the order must be: (1) a final order,

(Footnote Continued)

_____________ __ ________ review. Segarra al so filed a brief in this Court, arguing that the records at issue are subject to in camera review by the trial court.J

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Pa.R.A.P. 341

- 42 ; (2) an interlocutory order appealable by right or
permission, 42 Pa.C.S. § 702(a)

- (b) ; Pa.R.A.P. 311

- 12 ; or (3) a collateral
order, Pa.R.A.P. 313

. 8
“The courts of Pennsylvania have uniformly held that, if an appellant
asserts that the trial court has ordered him [or her] to produce materials
that are p rivileged, then Rule 313 applies .” Farrell v. Regola , 15 0 A.3d 87,
95 (Pa. Super. 2016), citing Yocabet v. UPMC Presbyterian , 1 19 A.3d
1012, 1016 n.1 (Pa. Super. 2015) (“When a party is ordered to produce
materials purportedly subject to a privilege, we have jurisdiction under

Pa.R.A.P. 313.... ” ), Ben v. Schwartz , 729 A.2d 547, 549 (Pa. 1999)
(holding that when a trial court refuses to apply a claimed privilege, the
decision is appealable as a collateral order), and Commonwealth v. Harris , 32 A.3d 243, 248 (Pa. 2011) (distinguishing federal law and reaffirming
Pennsylvania law that “orders overruling claims of privilege and requiring

_________________ __________ ______ ____ _______ 8 Pa.R.A.P. 313 provides as follows.
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative ag ency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed unti l final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.J

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disclosure are immediately appealable under Pa.R.A.P. 313”). Based on the
foregoing, it is clear that this order is appealable as a collateral order.
We next address the appealability of the trial court’s oral order issued
at the September 20, 2018 heari ng. No written order memorializing the oral
order appears in the certified record, but the certified docket contains the
following entry on September 20, 2018: “Order Granting Motion in Limine [.]
Motion to have Child Advocate review the victims [ sic ] Med ical Records is
granted.” Docket Entry, 9/20/2018; see Pa.R.A.P. 301(a)(1) (requiring
order of court be entered upon docket in lower court in order to be
appealable); Pa.R.Crim.P. 113(C)(4) (requiring docket entries to include
“notations concerning motion s ma d e orally or orders issued orally in the
courtroom when directed by the court”).
Neither Segarra nor the Commonwealth has challenged the lack of a
written order. Although there is no explanation as to why the trial court did
not file a written order, the trial court clearly ordered Child Advocate to
review D.G.’s mental health records and entered it on the docket. N.T.,
9/20/2018, at 40; Docket Entry, 9/20/2018.
“In some instances, oral orders, made on the record, need not be filed

or entered on the docket in order to be valid.” Jackson v. Hendrick , 746

A.2d 574, 576 ( Pa. 2000) (plurality) (citations omitted). In Jackson , our Supreme Court c onsidered the propriety of a trial court’s unequivocal, on

the

- record, oral vacatur while it took a motion fo r reconsideration underJ

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advisement. Ultimately, the Court concluded that the oral order had legal

effect. Id. at 577. A plurality of our Supreme Court recognized that
litigants must be able to rely on representations made by the court, and it would be inequitable and detrimental to the functioning of the judicial system if such on

- the

- record representations could not be trusted. The efficient resolution of disputes requires that litigants be able to rely on oral representations and orders of court, rat her than be forced to treat such matters as merely tentative and unreliable while awaiting the filing of written orders.

Id.

We conclude that the case here is one of those instances where the
trial court’s oral order is valid despite the lack of a filed written order. The
trial court’s oral order at the September 20, 2018 hearing was unequivocal
and on the record, it appears on the docket, an d none of the parties
challenge s the lack of a written order. Child Advocate acted in good faith

reliance on the trial court’s oral representation that the trial court was
ordering her to review D.G.’s medical records and report to the trial court
any impeachment evidence. Not permitting D.G. to appeal collaterally her
claim of privilege now and requiring her to wa it until the trial court files a
written order following remand would cause needless delay and disrupt the
efficient resolution of Segarra’s criminal proceedings and the issue of
privilege of D.G.’s mental health records. See id. (“[E]quity enjoys

flexibi lity to correct court errors that would produce unfair results.”); see also Pittsburgh Action Against Rape v. Dep’t of Public Welfare , 120
A.3d 1078, 1080 (Pa. Cmwlth. 2015) (concluding administrative law judge’sJ

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oral ruling, which denied sexual assault co unselor’s motion to quash
subpoena on ground it sought disclosure of privileged communications with
victim, was an appealable collateral order); Commonwealth v. Hunt , 220
A.3d 582, 590 n .6 (Pa. Super. 2019) ( “ This Court is not bound by the

decisions of the Commonwealth Court . However, such decisions provide
persuasive authority , and we may turn to our colleagues on the

Commonwealth Court for guidance when appropriate. ”) (quoting Petow v.

Warehime , 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010)).

STATUTORY PRIVIL EGE
Having determined that we have jurisdiction over this appeal, we now
turn to D.G.’s issues, beginning with statutory privilege. D.G. contends that
disclosure of her mental health records is barred by section 7111 of the
MHPA, 50 P.S. § 7111, and sect ion 5944 of the Judicial Code, 42 Pa.C.S.
§ 5944. The privilege asserted is codified, and thus, “the interpretation of a

statute is a question of law, resulting in a standard of review that is de novo and a scope of review that is plenary.” Farrell , 150 A.3d at 96 (citation
omitted).
Even though Pennsylvania courts disfavor privileges since they obstruct the ability to ascertain the truth, we will faithfully adhere to constitutional, statut ory, or common law privileges. If the legislature has considered the interests at stake and has granted protection to certain relationships or categories of information, the courts may not abrogate that protection on the basis of their own perception of public policy unless a clear basis for doing so exists in a statute , the common law, or constitutional principles. This co urt does not have the power toJ

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order disclosure of materials that the legislature has explicitly directed be kept confidential.

Id. at 97 (citations and quotation marks omitted).

We first examine wh ether D.G.’s mental health records are protected
by the MHPA , keeping in mind that t he MHPA is to be strictly construed.
Commonwealth v. Moyer , 595 A.2 d 1177, 1179 (Pa. Super. 1991).
Section 7103 of the MHPA specifies that “[t]his act establishes rights and
procedures for all involuntary treatment of mentally ill persons, whether
inpatient or outpatient, and for all voluntary inpatient treatment of mentally
ill persons.” 50 P.S. § 7103. Section 7103 .1 defines “inpatient treatment”
as “[a]ll treatment th at requires full or part

- time residence in a facility. ”

Id. § 7103.1 “Facility” is defined as “[a] mental health establishment,
hospital, clinic, institution, center, day care center, base service unit,
community mental health center, or part thereof, th at provides for the
diagnosis, treatment, care or rehabilitation of mentally ill persons, whether
as outpatients or inpatients. ” Id.

Section 7111 of the MHPA “ mandates that all documentation
concerning persons in treatment be kept confidential, in the abs ence of
patient consent, except in four limited circumstances. ” Zane v. Friends
Hosp. , 836 A.2d 25, 31 ( Pa. 2003) ; see also In re Fortieth Statewide
Investigating Grand Jury , 220 A.3d 558, 566

- 67 ( Pa. 2019)

. Section

7111 provides as follows.J

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(a) All docu ments concerning persons in treatment shall be kept confi dential and, without the person’ s written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county adminis t rator, pursuant to [50 P.S. § 7110];
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency. In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent. This shall not restrict the collection and analysis of clinical or statistical data by the department, the county administrator or the facility so long as the use and dissemination of such data does not identify individual patients. Nothing herein shall be construed to conflict with section 8 of the act of April 14, 1972 (P.L. 221, No. 63), known as the “Pennsylvania Drug and Alcohol Abuse Control Act.”
50 P.S. § 7111 (a) (footnotes omitted).
Instantly, there is no dispute that the Horsham Clinic is a “facility”
within the meaning of the MHPA. Next, Child Advocate stated at the
September 20, 2018 hearing that D.G. received inpatient treatment at the

Horsham Clinic

. Trial Court Opinion, 1/25/2019, at 10, citing N.T.,
9/20/2018, at 8. Thus, the MHPA applies. 9

_________________ __________ ______ ____ _______ 9 Segarra contends in his brief that the MHPA is inapplicable to the Horsham Clinic because it is a “partial hospitalization program.” Segarra’s Brief at 11 n.4. He argues that because “patients are able to return home after (Footnote Continued Next Page)J

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Having determined that the MHPA applies, we must examine whether
any of the exceptions enumerated in sub se ction 7111(a) applies.
In construing [s] ection 7111, our [Supreme] Court determined that, by its clear and unambiguous terms, disclosure was allowed only in certain limited enumerated instances, and only to par ties designated by the statute

. ... Apart from these express exceptions, our Court held that disclosur e is permitted to third parties only where the patient has given his or her written consent:
The unambiguous terms contained in the provision regarding the confidentiality of medical records leaves l ittle room for doubt as to the intent of the Legi slature regarding this section. ...“[A ]ll documents concerning persons in treatment shall be kept confi dential and, without the person’ s written consent, may not be released or their contents disclosed to anyo ne.” 50 P.S. § 71 11(a). The
(Footnote Continued)

_____________ __ ________ treatment” in a partial hospitalization program, it is akin to a voluntary outpatient program and thus, the MHPA does not apply. Id. However, as noted supra , the MHPA defines “inpatient treatment” as “ [a] ll treatment that requires full or part - time residence in a facility. ” 50 P.S. § 7103.1 (emphasis added).
The Commonwealth states in its brief that the trial court did not make any finding of fact about the nature of D.G.’ s treatment, but “ to the ext ent D.G. received inpatient or involuntary treatment at Horsham [Clinic],” it agrees D.G.’s records are protected by the MHPA. Commonwealth’s Brief at 8 n.2. As noted, Child Advocate indicated at the September 20, 2018 hearing that D.G. received inpatien t treatment at the Horsham Clinic. N.T., 9/20/2018, at 8. The trial court adopted this fact in its opinion when it noted that D.G. “was an inpatient at Horsham.” Trial Court Opinion, 1/25/2019, at 10. Further, D.G. repeatedly refers to her inpatient tr eatment at the Horsham Clinic throughout her brief. D.G.’s Brief at ii, 4

- 5, 17, 22, 25, 27, 29, 32. There is nothing in the record to indicate D.G.’s treatment was anything other than inpatient . Regardless, as discussed infra , all confidential communic ations made and information given by D.G. to her entire mental health treatme nt team at the Horsham Clinic are absolutely privileged under section 5944 of the Judicial Code, 42 Pa.C.S. § 5944.J

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- provision applies to all documents regarding one’ s treatment, not just medical records. Furthermore, the ve rbiage that the documents “ shall be kept confidential” is plainly not discretionary but mandatory in this context

— it i s a requirement. The release of the document s is contingent upon the person’ s written consent and the documents may not be released “ to anyone ” without such consent. The terms of the provision are eminently clear and unmistakable and the core meaning of this confidentiality section of the [MHPA] is without doubt

— there shall be no disclosure of the treatment documents to anyone.

Zane [, 836 A.2d at 3 1

- 32 ] (emphasis original). Consequently, our [Supreme] Court ruled that, because the disclosure of mental h ealth treatment records for purposes of a civil proceeding was not one of the permis sible disclosures set forth in [s] ection 7111, and because the patient had not given written consent for th eir disclosure, the trial court’ s order compelling their disclosu re was legally erroneous and could not be enforced.

In re Fortieth Statewide Investigating Grand Jury , 220 A.3d at 566

- 67
(emphasis in original)

. Similarly here , none of the enumerated exceptions se t forth in

sub section 7111(a) applies , and there is no question that D.G. did not give

written consent for the disclos ure of her mental health records

. 10 T he
documents are not sought by one treating the person or by a county
administrator, nor is there any suggestion that any treatment was

undertaken in a fede ral agency. See 50 P.S. § 7111(a)(1), (2), (4).

_________________ __________ ______ ____ _______ 10 Subject to exceptions not relevant here, a minor age 14 or older controls the release of the minor’s mental health treatment records and information. See 35 P.S. § 10101.2(d); see also 35 P.S. § 10101.1 (minors’ cons ent to mental health treatment).J

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Further, disclosure to a court is not permitted in criminal proceedings under
the MHPA; rather, it is only permitted where the legal proceedings are
authorized by the MHPA. 50 P.S. § 7111(a)(3)

. I n Moyer , this Court
interpreted subsection 7111(3) and explained as follows

. A strict construction of Section 7111 reveals that all documents concerning persons in treatment are to be kept confidential and may not be released or disclosed to anyone, absent the p atient ’ s written consent, with certain exceptions. [...] The third exception to the privilege of confidentiality conferred by the MHPA on a patient ’ s records allows a court to review the records in the course of legal proceedings authorized by the MHPA

. 50 P.S. § 7111(3).

The unambiguous language of section 7111(3) leads us to conclude that a patient ’ s inpatient mental health treatment records may be used by a court only when the legal proceedings being conducted are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings. See 50 P.S. § 7103 (MHPA establishes the rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient trea tment of mentally ill persons). We can find no language within the act itself which includes criminal proceedings within the framework of the act, nor can we find any caselaw in the Commonwealth which supports such a proposition.

***
[A]bsent any author ity to the contrary, we conclude that [a] criminal prosecution [] is not a legal proceeding authorized by the act.
Moyer , 595 A.2d at 1179 (some citations omitted; emphasis in original);

see also Zane , 836 A.2d at 32

- 33 ( “[B]y the clear terms of the statu te,
disclosure to a court is not permitted in any legal proceedings, but only in
those legal proceedings authorized by the [MHPA]

. Our review of theJ

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[MHPA] reveals certain legal proceedings that are authorized by the statute,
that is, proceedings falling within the confines of the act. These include

i nvoluntary emergency treatment, 50 P.S. § 7303; court

- ordered involuntary
treatment, 50 P.S. § 7304 and § 7305; tra nsfer of persons in involuntary
treatment, 50 P.S. § 7306; and voluntary mental health commi t ment
determinations, 50 P.S. § 7204 and § 7206.”).
Similarly here, because “ this exception to the otherwise broad
protection of confidentiality of documents only encompasses legal
proceedings authorized by the [MHPA]” and not criminal proceedings , this

exc eption does not serve as a basis to pe rmit the disclosure of D.G.’s mental
health records to the court in the criminal proceeding against Segarra.
Moyer , supra ; Zane , supra

. Thus, in this case, b y the plain language of the MHPA, all documents
relating to D.G.’s mental health treatment at the Horsham Clinic shall be
kept confidential and cannot be released to anyone absent D.G.’s written

consent. Accordingly, t he trial court’s order requiring Child Advocate to

review D.G.’s mental health records and disclo se any impeachment evidence
to the trial court, and possibly to Segarra and the Commonwealth, was

erroneous. Likewise, it was error for the trial court to leave the door open to
a possible in camera review by the trial judge , as the MHPA prohibits the

rel ease of D.G.’s mental health records to anyone without her written

consent. See Zane , 836 A.2d at 33 (holding trial court’s order compellingJ

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hospital to produce , for in camera inspection , mental health records of

defendant in negligence action was clearly erroneous under MHPA).
Because the MHPA protects all documents from disclosure, a detailed

discussion of whether the psychiatrist/psychologist

- patient privilege , codified

in section 5944 of the Judicial Code, 42 Pa.C.S. § 5944, applies to D.G.’s

treatment at the Horsham Clinic is not necessary

. See Moyer , 595 A.2d at
1180 (concluding, after finding defendant’s records privileged under the
MHPA, it was unnecessary to discuss whether records were also privileged
under section 5944); Gates v. Gates , 967 A.2d 1024, 1029 (Pa. Super.
2009) (“[W]e observe that 50 P.S. § 7111(a) is a broad provision that
applies to all of the records concerning [an individual’s] mental health
treatment.”) (citation and footnote omitted).

We point out , however, that t he psychiatr ist/psychologist

- patient
privilege is absolute and the statute contains no exceptions for disclosure.

Commonwealth v. Kyle , 533 A.2d 120, 125 (Pa. Super. 1987); 42 Pa.C.S.
§ 5944. The privilege “is designed to protect confidential communications

made and information given by the client to the psychotherapist in the
course of treatment, but does not protect the psychotherapist’s own opinion,
observations, diagnosis, or treatment alternatives.” Farrell , 150 A.3d at

97

- 98 (citation and internal quotation ma rks omitted). Segarra is
attempting to uncover statements D.G. made during the course of herJ

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mental health treatment at the Horsham Clinic, “which falls squarely within
the parameters of the privilege.” Id. at 98.
The privilege applies not only to psyc hiatrists and psychologists, but to
any member of a patient’s treatment team. Id. at 100, quoting

Commonwealth v. Simmons , 719 A.2d 336, 343 (Pa. Super. 1998)
(“[A]ny oral communication by [patient] in private to any member of the

treatment team and used by the team for the purpose of psychotherapeutic
evaluation is privileged. Additionally, any reference to such a
communication in [the facility’s] files is privileged as well.”) (emphasis in
original).
Moreover, “[i]n cases where the [section] 5944 privil ege has been
found to apply, case law has precluded material from being subjected to

even in camera review by the trial courts[.]” Simmons , 719 A.2d at 341;
see also Kyle , 533 A.2d at 131 (“ Subjecting the confidential file to in

camera review by the trial court (as well as the appellate courts and staff
members) would jeopardize the treatment process and undermine the public
interests supporting the privilege. Simply stated, an absolute privilege of this
type and in these circumstances requires absolute co nfidentiality.”)

.
A ccordingly, any oral communication by D.G. in private to any member of her treatment team at the Horsham Clinic and used by the team
for the purpose of psychotherapeutic evaluation is privileged, as well as anyJ

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reference to such a commun ication in Horsham Clinic’s files. 11 Farrell ,
supra ; Simmons , supra . Thus, the trial court erred in ordering Child
Advocate to review D.G.’s mental health records and disclose any
impeachment evidence to the trial court and possibly to Segarra and the

Com monwealth. Equally, the trial court erred when it left the door open to a
possible in camera review by the trial judge, as the section 5944 privilege is
absolute and contains no exceptions for disclosure. Farrell , 150 A.3d at 101
(reversing order requiri ng psychological treatment records be turned over to

trial court for in camera review); Simmons , 719 A.2d at 341, 344 (holding
section 5944 is an absolute privilege from disclosure, including in camera
review); Kyle , 533 A.2d at 123

- 25 ( same).

WAIVER

Havin g concluded that D.G.’s mental health records are protected by

the MHPA and not subject to disclosure under any of the enumerated
exceptions in sub section 7111(a) , we examine whether D.G. waived her
privilege. As noted supra , at the September 20, 2018 hea ring, the trial

cou rt concluded that because the Horsham Clinic had already disclosed the
records to the Commonwealth, albeit in error, the records were no longer
subject to the same level of protection. N.T., 9/20/2018 , at 40 ; see also

_________________ __________ ______ ____ _______ 11 To the extent the trial court determined that section 5944 only protects communications made to a licensed psychiatrist or psychologist, this was
error. See Trial Court Opinion, 1/25/2019, at 9.J

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N.T., 11/2/2018, a t 14 ; Trial Court Opinion, 1/25/2019, at 7

- 8

. Neither the
Commonwealth nor Segarra dispute s that the Horsham Clinic disclosed

D.G.’s mental health records without her consent , or that the
Commonwealth is no longer in possession of the records.
“As a gener al matter, once it is established that records are privileged
from disclosure to third parties, the burden shifts to the party seeking
disclosure to establish that an exception to the privilege exists which would

allow the disclosure. ” In re Fortieth Stat ewide Investigating Grand
Jury , 220 A.3d at 568 (citation omitted). Thus, the burden rests with
Segarra to demonstrate that D.G. waived the privilege conferred by statute.

As our Supreme Court recognized in Zane , [t] he importance of confidentiality cannot be overemphasized. To require the [h] ospital to disclose mental health records during discovery woul d not only violate [the patient’ s] statutory guarantee of confidentiality, but would have a chilling effect on mental health treatment in general. The purp ose of the [MHPA] of seeking ‘to assure the availability of adequate treatment to persons who are mentally ill,’ 50 P.S. § 7102 , would be severely crippled if a patient’ s records could be the subject of discovery in a panoply of possible legal proceedings. Moreover, to release such documents for review during discovery, only to have an appellate court reverse such decision on appeal, would result in the confidential nature of the records being forever lost.

Zane , 836 A.2d at 34 (emphasis added) ; Kyle , 533 A.2d at 126 (“Because

the informa tion revealed by the patient [during mental health treatment] is
extremely person al , the threat of disclosure to outsiders may cause the
patient to hesitate or even refrain from seeking treatment.”).J

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Our Supreme Court addre ssed the issue of waiver of privileged mental

health records under section 7111 in In re Fortieth Statewide
Investigating Grand Jury , supra

. There, our Supreme Court observed

that
given the strong legislative policy reflected in [s]ection 7111 [of the MH PA] to keep mental health treatment records confidential, implicit waiver of this privilege is strongly disfavored and has been recognized by our Court in only one circumstance

– where
a plaintiff initiated a civil action and sought to use [s]ection 7111 t o shield disclosure of mental health treatment records, which he could reasonably have foreseen would be relevant given that his mental health was directly implicated by his cause of action. Octave [ ex rel. Octave v. Walker , 103 A.3d 1255 (Pa. 2014)]. Wh at was critical t o our disposition in that case, however, was the fact that the individual asserting the privilege had placed his mental health at issue by initiating the case, and, thus, considerations of fundamental fairness were implicated, given that o ur Court did not want to countenance using this privilege
as an “offensive” shield for a party to gain a tactical advantage in civil litigation. Octave , 103 A.3d at 1263.

Id. at 56 8 (emphasis omitted)

.
T hese considerations are not present here , as thi s matter is not a civil

case, D.G. did not initiate the criminal case against Segarra, and when D.G.
sought mental health treatment as a sexual assault complainant , she could

not have reasonably foreseen that the records of that treatment would be

made ava ilable to her alleged perpetrator. See i d

. 12 As our Supreme Court

_________________ __________ ______ ____ _______ 12 We further note that under the statutory sexual assault counselor privilege, a sexual assault counselor is prohibited fro m disclosing a sexual assault victim’s confidential communications to the counselor without the victim’s written consent, and is prohibited from consenting to be examined (Footnote Continued Next Page)J

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held in Fortieth Statewide Investigating Grand Jury , we likewise

“decline to extend the principle of implicit waiver recognized in Octave to

circumstances such as those presented by the cas e at bar.” Id. Thus , t he

Horsham Clinic’s mistake in disclosing D.G.’s privileged mental health

records to the Commonwealth is not an implied waiver of D.G.’s privilege. 13

To hold otherwise would have a “ chilling effect on mental health treatment in

gene ral” and would “severely cripple” the legislative purpose of ensuring

(Footnote Continued)

_____________ __ ________ in any court or criminal proceeding. 42 Pa.C.S. § 5945.1(b). “ The privilege created by 42 Pa.C.S. § 5945.1 is an absolute privilege, which 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) (citations and footnote omitted). While the record does not indicate that D.G.’s mental health records would fall under this privilege, the sexual assault counselor privilege is further indication of our legislature’s manifest purpose of shielding any confidential communications made by D .G. relating to her sexual assault in the course of her treatment at the Horsham Clinic.

13 We find inapposite the trial court’s reliance on Commonwealth v. Weiss , 81 A.3d 767 (Pa. Super. 2013) , to support its position that the Horsham Clinic’s erroneous disclosure of D.G.’s mental health records to the Commonwealth can “pierce” the privilege and be viewed as an implicit waiver of privilege by D.G. Trial Court Opinion, 1/25/2019, at 10.
Without question , treating a menta l health facility’s disclosure o f a patient’s mental health records without the patient’s consent as a waiver of the patient’s privilege would wholly contradict the “the manifest legislative policy to shield confidential mental health treatment records from public view embodied in [s]ect ion 7111.” Fortieth Statewide Investigating Grand Jury , 220 A.3d at 568

. To allow D.G.’s privilege to be waived because her mental health records ended up in the Commonwealth’s possession through Horsham Clinic’s mistake would eviscerate any privilege pr otected by statute, and to hold otherwise “would be repugnant to the notion of privacy embodied in [section] 7111

. ” Id. at 56 9.J

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confidentiality to those who seek it , including victims of sexual assault. See

Zane , supra

. Accordingly , Segarra has not met his burden of
demonstrating D.G. waived the privilege confe rred by the MHPA

.

RIGHTS TO CONFRONTATION AND DUE PROCESS
Lastly, o n appeal, D.G. and the Commonwealth contend D.G.’s
privilege does not yield to Segarra’s constitutional right to confrontation,
while Segarra maintains that the trial court must balance hi s right to conduct

effective cross

- examination of D.G. against the privilege. D.G.’s Brief at 42

- 44; Commonwealth’s Brief at 13

- 14; Segarra’s Brief at 13.
“The confrontation clause guarantees an accused the right ‘to be
confronted with the witness agai nst him; [and] to have compulsory process
for obtaining witnesses in his favor.’” Kyle , 533 A.2d at 123, quoting U.S.

Const. Amend. VI. 14 , 15

The [federal] Confrontation Clause does not constitutionally guarantee access to pre

- trial discovery

. The right to confrontation is a trial right. A defendant does not have a right to discover any and all material potentially useful for impeaching a witness. “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross

- examination, not cross - examination that is effective in whatever way, and to

_________________ __________ ______ ____ _______ 14 “The Confrontation Clause is made applicable to the states by the Fourteenth Amendment of the United States Constitution.” K yle , 533 A.2d at 123 n.2 (citation omitted).

15 This right is also secured by our state con stitution. Pa. Const. Art. 1 § 9. D.G., the Commonwealth, and Segerra all fail to indicate in their briefs whether their argumen ts are advanced under the federal o r state constitutions , or both

.J

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whatever extent, that the defense might wish.” Delaware v. Fensterer

, 474 U.S. 15, 20 [] (1985) ( per curiam ) (emphasis supplied) (citation omitted). Thus, “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these [forgetfulness, confusion, or evasion] infirmities through cross

- examination....” Id. at 22 [].

Com monwealth v. Herrick , 660 A.2d 51, 60 ( Pa. Super. 1995) (some

cita tions omitted)

. There is no indication in the record here that Segarra will

not have a full and fair opportunity to cross - examine D.G. and thus, we do

not find denying him access to D.G.’s mental health records violates his right

to confrontation.

“Whil e the Confrontation Clause does not attach, per se , to pre

- trial
discovery requests, ” “ [d] ue process demands that materially exculpatory
evidence in the hands of a prosecutor be turned over to the defense.” Id. , citing Brady v. Maryland , 373 U.S. 83 (Pa. 1963). “ This right, however,

does not mean that a defendant has unfettered access to files not in his
possession.” Id. at 61 (citation omitted)

. Segarra’s right to access is dependent upon whether the information is
protected by statutory privilege. Our research has not uncovered any
published opinions which address whether a criminal defendant’s
constitutional rights of confrontation and due process are violated by a
denial of access to records under the MHPA, but courts of this state have

examined whet her a criminal defendant accused of sexual offenses is
entitled to access to the alleged victim’s records, and they have heldJ

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repeatedly that such constitutional rights are not violated when the records
are statutorily privileged. See e.g. , Kyle , 533 A.2d 120 ( holding criminal

defendant’s federal constitutional rights are not violated by denial of access
to statutorily protected records under section 5944 psychiatrist/psychologist

patient privilege ); Kennedy , 604 A.2d at 1047 ( holding criminal defendant’s
state constitutional rights are not violated by denial of access to statutorily
protected records under section 5944 psychiatrist/psychologist

- patient
privilege ); Commonwealth v. Smith , 606 A.2d 939, 942 (Pa. Super. 1992)
(same); Commonwealth v

. Counterman , 719 A.2d 284, 295 ( Pa. 1998)
(“ The statutory privilege set forth in Section 5944 is not o utweighed by

either a defendant’ s Sixth Amendment right to cross

- examine a witness or
his right to due process of law .”) (citations omitted); Commonwealth v.
Patosky , 656 A.2d 499, 502

- 03 (Pa. Super. 1995) (citing numerous cases
in which a criminal defendant’s constitutional rights to confrontation and due
process must yield to privilege, and holding that the trial court’s refusal to
allow defendant’s attorney to cond uct in camera review of sexual assault
victim’s psychiatric records under section 5944 did not violate his
constitutional rights to confrontation, compulsory process, and due process);
Commonwealth v. Wilson/Aultman , 602 A.2d 1290, 1296 (Pa. 1992)
(plurali ty) 16 (holding sexual assault counselor privilege, 42 Pa.C.S. § 5945.1,

_________________ __________ ______ ____ _______ 16 Chief Justice Nix’ s plurality opinion in Wilson / Aultman was joined by (Footnote Continued Next Page)J

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-

does not violate criminal defendant’s federal or state constitutional rights) ;

V.B.T. , 705 A.2d at 1329 ( “ The privilege created by 42 Pa.C.S. § 5945.1 is
an absolute privilege, which is not overcome even by the constitutional
rights of a criminal defendant.” ). 17 , 18

(Footnote Continued)

_____________ __ ________ Justices Flaherty and Cappy; Justice Larsen filed a concurring opinion joined by Justice Papadakos; Justice Zappala dissented; and Justice McDermott did not participate. The concurring opinion agreed with the lead opinion that the statutory sexual assault counselor privilege was absolute.

17 I n Commonwealth v. T.J.W. , this Court noted that “even in cases which adopt the ‘absolute privilege’ terminology, t here is a recognition, often expressly, that the disposition of a claim of privilege involves an impartial assessment of the competing claims” and suggested section 5944 may not shield the victim’s mental health records from disclosure under the specific f acts of that case. 11 4 A.3d 1098, 1104 (Pa. Super. 2015)

. H owever, the Court held the victim waived her claim of privilege under section 5944 because she had agreed to a stipulated order which required her to turn over her re cords to the trial court for in camera review, and because sh e did not assert privilege until four and one

- half months after she agreed to the order. Id. at 1103. In contrast here, and as discussed supra , D.G. did not consent to or waive disclosure of her mental health records

. D.G

. also invoked her privilege immediately upon learning Segerra was seeking disclosure.

18 A privilege recognized at common law can yield to a criminal defendant’s constitutional rights. See Commonwealth v. Lloyd , 567 A.2d 1357 (Pa. 1989) , superseded by s tatute , 42 Pa.C.S. § 5944 (holding a common law psychotherapist privilege gives way to criminal defendant’s constitutional right to confrontation) ; I n the Matter of Pittsburgh Action Against Rape (PAAR) , 428 A.2d 126 (Pa. 1981) , superseded by statute , 42 P a.C.S. § 5945.1 (declining to expand common law privilege to recognize an absolute testimonial privilege for all communications between rape victims and rape crisis center counselors)

. “At the time Lloyd was decided, statutory protection now afforded to psychotherapeutic records was not in effect. Therefore, the Lloyd Court was not required to analyze whether the defendant’s right to these records was subject to any restriction.” Smith , 606 A.2d at 942. Since then, such (Footnote Continued Next Page)J

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The rationale underlying these cases is that the legislature, in enacting
a statutory privilege, has acknowledged the significance of the confidentiality

interest which it addr esses and intended to afford statutory protection to

that interest. In Kyle , we explained the following.
Having reviewed the language of the statutory privilege enacted by our legislature and having given consideration to the public policies underlying th e absolute privilege as well as the relevant cases in this and other jurisdictions, we find that the interests protected by the privilege are substantial. We are, of course, cognizant of the hea vy weight afforded to [a criminal defendant’s] i nter est in di sclosure of the victim’ s file. Nonetheless, in weighing the public interests protected by shielding the file with those advanced by disclosure, we conclude that the balance tips in favor of non

- disclosure. Nor do we believe that our decision today will u nduly infringe on the rights of the accused. First, we note that as a matter of constitutional law, our courts have upheld testimonial privileges which bar a criminal defendant from obtaining or using confidential communications. See Washington v. Texas , 388 U.S. 14, 23
n. 21, [] (1967) ; Commonwealth v. Sims , [] 521 A.2d 391, 395 ( [Pa.] 1987) . Here, the privilege only limits access to statements made during the course of treatment by the psychologist. It does not foreclose all lines of defense questioning. Likewise, the privileg e does not unfairly place the defense in a disadvantageous position; like the defense, the prosecution does not have access to the confidential file and, thus, cannot use the information to make its case. Kyle , 533 A.2d at 129 ; see also Wilson /Aultman , 602 A.2d at 1298
( “[T]he existence of a statutory privilege is an indication that the legislature (Footnote Continued)

_____________ __ ________ records have been afforded stat utory protection, the psychiatrist/psychologist

- patient pri vilege codified at 42 Pa.C.S. § 5944.
Likewise, “in response to the [Pennsylvania Supreme Court]’s decision in PAAR [, ] the Legislature enacted the absolute privilege for communications between clients and rape cr isis counselors at 42 Pa.C.S. § 5945.1.” Kennedy , 604 A.2d at 1045.J

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acknowledges the significance of a particular interest and has chosen to
protect that interest.” ); Kennedy , 604 A.2d at 1046 ( recognizing that the
section 5944 p rivilege “is based on the state’s interest in promoting
successful therapeutic treatment and in protecting the fundamental right of
all its citizens to the privacy of their most intimate co mmunications”)

. As our Supreme Court has recognized, “[i]t should b e readily apparent
that the general powers of courts do not include the power to order
disclosure of materials that the legislature has explicitly directed be kept

confidential.” Commonwealth v. Moore , 584 A.2d 936, 940 (Pa. 1991)
( holding Disease Prevent ion and Control Law protected confidentiality of
criminal defendant’s health records, which were not subject to disclosure
under statute, where Commonwealth sought disclosure to determine if
defendant was infected with gonorrhea at time of alleged rape of minor
victim who was also diagnosed with gonorrhea )

.
U tilizing the same rationale, we arrive at the same conclusion: a
criminal defendant’s constitutional rights yield to the statutory privilege set
forth in the MHPA. In creating the statutory privilege t herein , the legislature
obviously concluded there is a compelling interest in shielding mental health
treatment records from disclosure except in limited circumstances. 50 P.S.
§ 7111; s ee Zane , supra ; In re Fortieth Statewide Investigating

Grand Jury , su

pra

. N otably , the legislature did not create an exception for

disclosure in all legal action s or other proceeding s

. A s Moyer , supra , madeJ

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clear, disclosure in criminal proceedings is not among the MHPA’s
exceptions. 19
The very existence of the unambigu ous legislation of the MHPA
signifies the strength of the privilege, and the legislature clearly determined
that disclosure of mental health treatment records in legal actions or other
proceedings is only relevant in “ involuntary and voluntary mental healt h
commitment proceedings. ” Moyer , supra , at 1179

. The “clear mandate of
the statutory privilege” under the MHPA “ is not overcome even by the
constitutional rights of a criminal defendant

. ” See Wilson , supra , at 295 ;

V.B.T. , supra , at 1329.

_________________ __________ ______ ____ _______ 19 The trial court in its opinion, along with D.G., the Commonwealth, and Segerra in their briefs, all cite to the United States Supreme Court’s ruling in Pennsylvania v. Ritchie , 480 U.S. 39 (1987) (plurality). Ritchie was accused of committing rape and other sexual offenses against his minor daughter

. Ritchi e sought disclosure of the file of Pennsylvania’s Children and Youth Services (CYS), the agency which investiga ted the suspected abuse of the daughter

. CYS claimed the records were privileged under Pennsylvania’s Child Protective Services Law, 11 Pa.C.S. § 2215 (repealed)

. The High Court recognized the information was statutorily protected, but a majority of the Court determined that because the statute required CYS to disclose the information when directed by court order, it could not conclude “that the statute prevents all disclosure in criminal prosecutions.” Ritchie , 480 U.S. at 43

- 44, 57

- 58 . Thus, Ritchie w as entitled to have the trial court review the CYS file to determine whether it contained information material to his criminal defense. Id. at 58.
Here, in contrast to Ritchie , the language of the MHPA clearly shows that the legislature did not intend for a patient’s mental health records to be subject to disclosure in criminal proceedings; the absence of such an exception shows the legislature has chosen to maintain the state’s compelling interest in protecting the confidentiality of a patient’s mental health records in criminal proceedings

.J

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Thus, base d on the foregoing and in accordance with the language of

the MHPA and our holding in Moyer , D.G.’s mental health records are absolutely privileged under the MHPA in Segarra’s criminal pro ceeding.
“[P]sychiatric records [that] are statutorily protected ar e not subject to
discovery.” Smith , 606 A.2d at 942

. C ourts do not have “ the power to
order disclosure of materials that the legislature has explicitly directed be
kept confidential .” Moore , 584 A.2d at 940

. Moreover , application of the

MHPA does not u nfairly place Segarra in a disadvantageous position , because the prosecution will likewise not have access to the contents of

D.G.’s records , and thus, cannot use the information to make its case either

. See Kyle , 533 A.2d at 130.

As the above discussio n demonstrates , because D.G.’s mental health

records are not subject to exception or discovery under the MHPA, and
because D.G. has not consented to the records’ disclosure, Segarra’s
constitutional rights are not violated in protecting the records from

di sclosure and in camera review.
For all of the foregoing reasons, we find D.G.’s mental health records
are privileged and cannot be disclosed to anyone, or be subject ed to in

camera review by anyone , without D.G.’s consent.

Order reversed. Jurisdiction relinquished.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/10/20