J-A27035-19

2020 PA Super 31

* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

BRANDON A. SEGARRA

APPEAL OF: COMPLAINANT WITNESS, 

D.G., A MINOR

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IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 3097 EDA 2018

Appeal from the Order Entered September 20, 2018

in the Court of Common Pleas 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 orally 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 December 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, the 

Commonwealth subpoenaed D.G.’s non-privileged medical records from the 

____________________________________________

1 We address the issue of appealability infra.
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Horsham Clinic,2 where D.G. received mental health treatment. According to 

the Commonwealth, the 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 motion 

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., 9/20/2018, 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., 9/20/2018, 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 appeared 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.
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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. The 

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 duty to represent the interests of her 
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client, 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 did 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 court 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, did 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 camera 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)
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1. Did the trial court err when it ordered [] Child Advocate to 

review [D.G.’s] privileged and confidential mental health records 

for inconsistent statements and report her findings to the trial 

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 Health 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 Advocate, in possession of privileged and 

confidential mental health records that are statutorily 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 jurisdiction. 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 also filed a brief in this Court, arguing that the records at 

issue are subject to in camera review by the trial court.
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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 privileged, then Rule 313 applies.” Farrell v. Regola, 150 A.3d 87, 

95 (Pa. Super. 2016), citing Yocabet v. UPMC Presbyterian, 119 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 agency 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 until final judgment in the case, 

the claim will be irreparably lost.

Pa.R.A.P. 313.
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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 hearing. 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] Medical 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 motions made 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 considered the propriety of a trial court’s unequivocal, onthe-record, oral vacatur while it took a motion for reconsideration under 
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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, rather 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, and none of the parties 

challenges 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 wait 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 

flexibility 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’s 
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oral ruling, which denied sexual assault counselor’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 PRIVILEGE

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 section 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, statutory, 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 court does not have the power to 
J-A27035-19

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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 whether D.G.’s mental health records are protected 

by the MHPA, keeping in mind that the MHPA is to be strictly construed. 

Commonwealth v. Moyer, 595 A.2d 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 that 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, that 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 absence 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.
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(a) All documents concerning persons in treatment shall be kept 

confidential 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 administrator, 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)
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Having determined that the MHPA applies, we must examine whether 

any of the exceptions enumerated in subsection 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 parties 

designated by the statute. ... Apart from these express 

exceptions, our Court held that disclosure 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 little room for doubt as to the intent of the 

Legislature regarding this section. ...“[A]ll documents 

concerning persons in treatment shall be kept 

confidential and, without the person’s written 

consent, may not be released or their contents 

disclosed to anyone.” 50 P.S. § 7111(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 extent

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 inpatient 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 treatment 

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 communications made and information given by D.G. to her 

entire mental health treatment team at the Horsham Clinic are absolutely 

privileged under section 5944 of the Judicial Code, 42 Pa.C.S. § 5944. 
J-A27035-19

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provision applies to all documents regarding one’s 

treatment, not just medical records. Furthermore, 

the verbiage that the documents “shall be kept 

confidential” is plainly not discretionary but 

mandatory in this context—it is a requirement. The 

release of the documents 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 31-32] (emphasis original). Consequently, 

our [Supreme] Court ruled that, because the disclosure of 

mental health treatment records for purposes of a civil 

proceeding was not one of the permissible disclosures set forth 

in [s]ection 7111, and because the patient had not given written 

consent for their disclosure, the trial court’s order compelling 

their disclosure 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 set forth in 

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

written consent for the disclosure of her mental health records.

10

 The 

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 federal 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’ consent to 

mental health treatment).
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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). In 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 patient’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 treatment 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 authority 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 statute, 

disclosure to a court is not permitted in any legal proceedings, but only in 

those legal proceedings authorized by the [MHPA]. Our review of the 
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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 

involuntary emergency treatment, 50 P.S. § 7303; court-ordered involuntary 

treatment, 50 P.S. § 7304 and § 7305; transfer of persons in involuntary 

treatment, 50 P.S. § 7306; and voluntary mental health commitment 

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 

exception does not serve as a basis to permit 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, by 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, the trial court’s order requiring 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 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 

release 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 compelling 
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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 the psychiatrist/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 marks omitted). Segarra is 

attempting to uncover statements D.G. made during the course of her 
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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 psychiatrists 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 privilege 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 confidentiality.”).

Accordingly, 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 any 
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reference to such a communication 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 

Commonwealth. 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 requiring 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

Having 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 subsection 7111(a), we examine whether D.G. waived her 

privilege. As noted supra, at the September 20, 2018 hearing, the trial 

court 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.
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N.T., 11/2/2018, at 14; Trial Court Opinion, 1/25/2019, at 7-8. Neither the 

Commonwealth nor Segarra disputes 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 general 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 Statewide 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 would not only violate [the patient’s] statutory 

guarantee of confidentiality, but would have a chilling effect on 

mental health treatment in general. The purpose 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 information revealed by the patient [during mental health treatment] is

extremely personal, the threat of disclosure to outsiders may cause the

patient to hesitate or even refrain from seeking treatment.”).
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Our Supreme Court addressed 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 MHPA] 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

to 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)]. 

What was critical to 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 our 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 568 (emphasis omitted). 

These considerations are not present here, as this 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 available to her alleged perpetrator. See id.

12

 As our Supreme Court

____________________________________________

12 We further note that under the statutory sexual assault counselor 

privilege, a sexual assault counselor is prohibited from 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)
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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 case at bar.” Id. Thus, the

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

general” 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 mental health facility’s disclosure of 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]ection 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 

protected by statute, and to hold otherwise “would be repugnant to the 

notion of privacy embodied in [section] 7111.” Id. at 569.
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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 conferred by the MHPA.

RIGHTS TO CONFRONTATION AND DUE PROCESS

Lastly, on 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 his 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 against 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.” Kyle, 533 A.2d 

at 123 n.2 (citation omitted).

15 This right is also secured by our state constitution. Pa. Const. Art. 1 § 9. 

D.G., the Commonwealth, and Segerra all fail to indicate in their briefs 

whether their arguments are advanced under the federal or state 

constitutions, or both.
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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

[].

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

citations 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. 

“While 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 whether a criminal defendant accused of sexual offenses is 

entitled to access to the alleged victim’s records, and they have held 
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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/psychologistpatient 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 outweighed 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 conduct 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) 

(plurality)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)
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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 In Commonwealth v. T.J.W., this Court noted that “even in cases which 

adopt the ‘absolute privilege’ terminology, there 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 

facts of that case. 114 A.3d 1098, 1104 (Pa. Super. 2015). However, 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 records to the trial court for in camera review, and because she 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 statute, 42 Pa.C.S. § 5944 (holding a 

common law psychotherapist privilege gives way to criminal defendant’s 

constitutional right to confrontation); In the Matter of Pittsburgh Action 

Against Rape (PAAR), 428 A.2d 126 (Pa. 1981), superseded by statute, 

42 Pa.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)
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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 addresses 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 the 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 heavy weight afforded to [a criminal 

defendant’s] interest in disclosure 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 unduly 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 privilege 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 statutory protection, the 

psychiatrist/psychologist-patient privilege 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 crisis counselors at 42 Pa.C.S. 

§ 5945.1.” Kennedy, 604 A.2d at 1045.
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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 privilege “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 communications”).

As our Supreme Court has recognized, “[i]t should be 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 Prevention 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).

Utilizing 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 therein, 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; see Zane, supra; In re Fortieth Statewide Investigating

Grand Jury, supra. Notably, the legislature did not create an exception for 

disclosure in all legal actions or other proceedings. As Moyer, supra, made 
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clear, disclosure in criminal proceedings is not among the MHPA’s 

exceptions.19 

The very existence of the unambiguous 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 health 

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. Ritchie sought disclosure of the file of Pennsylvania’s Children and 

Youth Services (CYS), the agency which investigated 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 was 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.
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Thus, based 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 proceeding. 

“[P]sychiatric records [that] are statutorily protected are not subject to 

discovery.” Smith, 606 A.2d at 942. Courts 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 unfairly 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 discussion 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 

disclosure 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 subjected to in 

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

Order reversed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/20