J-A26036-19

2020 PA Super 90

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

CHARLES COOK

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 424 WDA 2019

Appeal from the Order Entered March 7, 2019

In the Court of Common Pleas of Indiana County Criminal Division at

No(s): CP-32-CR-0000418-2017

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

OPINION BY OLSON, J.: FILED APRIL 7, 2020

The Commonwealth of Pennsylvania appeals as of right, under

Pennsylvania Rule of Appellate Procedure 311(d), from the order entered on

March 7, 2019. Among other things, the pre-trial, March 7, 2019 order

excluded from evidence a patient record and testimony regarding certain

statements that Charles Cook (“Cook”) made while he was involuntarily

committed at a Minnesota mental health treatment center. We vacate in part

and remand.

On December 13, 1991, the Pennsylvania State Police (“PSP”) began

investigating the murder of Myrtle Louise McGill. In October 2016, Cook was

arrested for Ms. McGill’s murder and, on May 30, 2017, the Commonwealth

filed an information, which charged Cook with criminal homicide and robbery

in relation to Ms. McGill’s murder.1

____________________________________________

1 18 Pa.C.S.A. §§ 2501(a) and 3701(a)(1)(i), respectively.
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In preparation for trial, the Commonwealth filed a motion in limine. In

relevant part, the Commonwealth’s motion in limine requested that the trial

court rule admissible, for trial, a patient record and testimony pertaining to

certain statements Cook made while he was involuntarily committed at a

mental health treatment center, named the Saint Peter Regional Treatment

Center, located in Saint Peter, Minnesota. Specifically, the Commonwealth’s

motion declared:

1. In 2016, [Cook] was involuntarily committed to the Saint

Peter Regional Treatment Center in Saint Peter, Minnesota.

2. During [Cook’s] involuntary commitment at the Saint Peter

Regional Treatment Center, Mr. Jeffery R. Brunz [hereinafter

“Security Counselor Brunz”)] was a Security Counselor at the

facility.

3. While [Cook] was committed to the facility, [Security

Counselor Brunz] overheard comments made by [Cook].

4. The Commonwealth wishes to admit the mental health

records of [Cook], specifically notes authored by [Security

Counselor Brunz], with regard to the time period in which he

was involuntarily committed to the Saint Peter Regional

Treatment Center. 5. The Commonwealth [also] wishes to admit the testimony

of [Security Counselor Brunz] about what he overheard or

witnessed with regard to [Cook].

Commonwealth’s Motion in Limine, 1/11/19, at 12.

Cook also filed a motion in limine, where he sought an order excluding

all evidence related to what Security Counselor Brunz heard him say in the

Saint Peter Regional Treatment Center. See Cook’s Motion in Limine, 1/11/19, at 1-2. According to Cook, all such statements “are privileged under
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42 Pa.C.S.A. § 5944, which governs confidential communications to

psychiatrists or licensed psychiatrists, and are therefore shielded from

discovery.” Id. at 1.

On January 18, 2019, the trial court held a hearing on the motions in

limine. During the hearing, the Commonwealth introduced the relevant record

from the Saint Peter Regional Treatment Center that it wished to admit during

trial. See N.T. Motion in Limine Hearing, 1/18/19, at 65-68. In pertinent

part, the record declares:

Minnesota Department of Human Services

Direct Care and Treatment

Progress Notes

. . . Patient Name: COOK, CHARLES . . . Episode: (. . .COMPETENCY

Birth Date: 8/31/1955 RESTORATION PROGRAM)

Admit Date: 8/18/2016 Discharge Date: 12/12/[16]

Written By: Brunz, Jeffery R Date of Note: 10/23/2016

Note Type: Security Counselor

Date of Service: 10/23/[16]

Progress Note

107: Emotional State: At approximately 3:25 p.m. while in the

library, writer over heard [Cook] talking to [Cook] #14945 about

his past. [Cook] stated that he was living in Philadelphia and that

he was on the run back in 1991. [Cook] stated “I killed some one”

and went on to say “I was in a bar all fucked up.” [Cook] then

went on to talk about the soul, a lost spirit and that a body was

moved. Writer heard [Cook] state something had happened back

in 1995, but could not make out what [Cook] was talking about.

[Cook] stated that it is “scary thinking about living the rest of

your life in prison, it is like walking dead.” [Cook] stated “never

should have committed the crime.” [Cook] then went on to say

the system is more corrupt [than] the crime itself. [Cook] said

“stab yourself in the artery and bleed out.” [Cook] said that he

was on his way to Pennsylvania when his van broke down. [Cook]
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said “DNA might be there, but can’t prove it.” [Cook] stated that

this has been on his mind. [Cook] stated he had to get out of that

town, so he took off before they could put a hit on him. Writer

also heard [Cook] say twice “joe’s dead.” Writer could only make

out parts of the conversation as [Cook] was talking quietly. Will

continue to monitor.

. . . Practitioner: BRUNZ, JEFFERY R . . .

Electronically authenticated by: JEFFERY BRUNZ, Security

Counselor on 10/23/2016 at 05:04 PM

Id. at Commonwealth’s Exhibit 5.

At the time Cook made his statements, Cook was a patient of the

Minnesota facility under an involuntary commitment order.2 Id. at 72.

____________________________________________

2 The Commonwealth obtained Cook’s Minnesota mental health record

pursuant to a valid Minnesota court order and in accordance with Minnesota

Statutes Section 13.384. In relevant part, Minnesota Statutes Section 13.384,

entitled “medical data,” provides:

Subdivision 1. Definition. As used in this section:

. . . (b) “Medical data” are data collected because an

individual was or is a patient or client of a hospital,

nursing home, medical center, clinic, health or nursing

agency operated by a government entity including

business and financial records, data provided by private

health care facilities, and data provided by or about

relatives of the individual.

. . . Subd. 3. Classification of medical data. Unless the data

is summary data or a statute specifically provides a different

classification, medical data are private but are available only
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____________________________________________

to the subject of the data . . . and shall not be disclosed to

others except:

. . . (c) pursuant to a valid court order[.]

. . . M.S.A. § 13.384.

On February 12, 2019, the District Court for the County of Blue Earth, Minnesota issued an order, declaring: “any claim of medical data privilege is

overridden and [Security Counselor] Brunz shall comply with the orders from

the County of Indiana, Commonwealth of Pennsylvania, subpoena for

[Security Counselor] Brunz and such order is found authorized by Minn. Stat.

§ 13.384, subd. 3(c).” In re: the Matter of the Court of Common Pleas

of the County of Indiana, Commonwealth of Pennsylvania, Subpoena

for: Jeffery R. Brunz, 07-CV-19-239 (Dist. Ct. Blue Earth Cty.), at 2 (some

capitalization omitted). Under this authority, the Commonwealth introduced

both Cook’s mental health record and Security Counselor Brunz’s testimony

during the motion in limine reconsideration hearing. See N.T. Reconsideration

Hearing, 3/4/19, at 4-5 and 9.

We note that, like Minnesota, Pennsylvania has a statute specifically dealing

with the confidentiality of mental health records. See 50 P.S. § 7111.

However, Cook has never claimed that his record was privileged under Section

7111 and Cook has never claimed that this section of Pennsylvania’s Mental

Health Procedures Act (“MHPA”) would or could apply to his case. Indeed, at

all times, Cook’s sole and specific claim has been that his record and

communications were privileged under 42 Pa.C.S.A. § 5944, which concerns

confidential communications “between a psychologist or psychiatrist and his

client.” See 42 Pa.C.S.A. § 5944; see also Cook’s Motion in Limine, 1/11/19,

at 1-2 (titled “Defendant’s Motion in Limine Pursuant to 42 Pa.C.S. § 5944”);

N.T. Motion in Limine Hearing, 1/18/19, at 62; Cook’s Brief at 5-7.

Regardless, since Cook’s sole and specific claim of privilege has been under

Section 5944, we do not consider whether Section 7111 could apply in this

case. See, e.g., Commonwealth v. Kauffman, 605 A.2d 1243, 1248 (Pa.

Super. 1992) (“the privilege must be claimed, and a failure to claim the

privilege waives it”) (quotations and citations omitted).
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On February 25, 2019, the trial court issued an order that, among other

things, excluded from evidence the “record[] and testimony concerning

statements made by [Cook] while a patient at St. Peter’s Regional Treatment

Center.” Trial Court Order, 2/25/19, at 2 (some capitalization omitted).

On March 1, 2019, the Commonwealth filed a motion for reconsideration

of the February 25, 2019 order. Within this motion, the Commonwealth

claimed that Cook’s statements were not confidential under 42 Pa.C.S.A.

§ 5944, as they “were made to a fellow patient and not to a psychologist,

psychiatrist, or any agent of a psychologist or psychiatrist” and Security

Counselor Brunz “simply overheard [Cook] talking to his fellow patient in a

common area.” Commonwealth’s Motion for Reconsideration, 3/1/19, at 7.

On March 1, 2019, the trial court expressly granted reconsideration of its

February 25, 2019 order and scheduled a March 4, 2019 hearing on the

reconsidered motions in limine. Trial Court Order, 3/1/19, at 1.

During the March 4, 2019 hearing, the trial court heard testimony from

Security Counselor Brunz. Security Counselor Brunz testified that, in October

2016, he was “a security counselor with the Competency Restoration Program

. . . at the Minnesota State Hospital.” N.T. Reconsideration Hearing, 3/4/19, ____________________________________________ We further note that we flag this issue only in the interest of completeness. We, obviously, express no opinion on the merits of any such claim, especially

given that Cook’s Minnesota mental health record was disclosed to the

Commonwealth pursuant to a valid Minnesota court order and in accordance

with a Minnesota statute and given that the Minnesota hospital was certainly

not governed by Pennsylvania’s MHPA or Section 7111 of that act.
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at 6. He testified that his job as a security counselor was “basically and

primarily [as] a security guard.” Id. Specifically, he testified, the job of a

security counselor encompassed the following:

[w]e ensure[d] the safety and security of the facility,

primarily for all staff and the patients. We conducted regular

rounds throughout our unit documenting what each patient

was doing at the time of our rounds. We would count patients

for their medications and meals, to attend their groups and

for activities that they [chose] to attend. We would also

make sure that they were taking their medications by doing

mouth checks at the med window when they would come up.

We would also be observing their actions and behaviors while

they were on the unit and also when they would attend other

activities and we would document accordingly.

Id. at 6-7.

As to the portion of his job where he “observed [the patients’] behavior,”

Security Counselor Brunz testified that this was done:

[j]ust to maintain safety for everyone on the unit primarily.

If there was any odd behaviors it could be related to, like,

medical condition, whether it’s a medical reaction or a

psychological break. If we would notice any odd behaviors,

we would let, like, the nurses know . . . and then the nurses

would handle from there.

Id. at 7.

He further testified that, as a security counselor: he did not actually

administer the medications, he just made sure the patients were not hiding

the medications under their tongues or in their cheeks; he did not have any

input into the types of medications the patients received; and, while he would

be present during group meetings and group interactions, he was merely an

observer and his primary role during this time was security. Id. at 8-9.
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Security Counselor Brunz testified that he heard Cook’s relevant

statements in October 2016 while they were in the facility’s library, where

patients were permitted (but not required) to go. Id. at 12. He described

the library in the following manner:

the library was a large room off of the unit. Around the outer

edge of the library was a bunch of shelves with books that

the clients or patients could check in and out. In the center

of the room on one end would be like a computer station

where there was four to six computers that clients could use

whether they wanted to play games or listen to music on it

and then on the other side there would have been a couple

couches, lounge chairs, coffee table if they chose to sit down

and read or talk.

Id. at 10-11.

He testified that group therapy sessions were not held in the library and

that no doctors or nurses were present in the library when Cook made his

statements. Id. at 12 and 18.

As Security Counselor Brunz testified, Cook made his statements to

another patient, while Cook and the other patient were sitting together on a

couch. Id. at 14. At the time, Security Counselor Brunz was seated

approximately six or seven feet away from the couch upon which Cook and

the other patient were sitting and Cook was “aware that [Security Officer

Brunz was] present when this conversation was happening.” Id. at 14 and

17. Security Counselor Brunz testified that Cook’s statements were made

during the course of a private conversation between Cook and the other

patient, and that Security Counselor Brunz was not a part of the conversation.
J-A26036-19

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Id. at 14-15. Security Counselor Brunz also testified that the conversation

between Cook and the other patient was at a “quiet” volume level. Id. at 16.

Security Counselor Brunz testified that, when he overheard Cook “talk

about his background and possible criminal activity,” Security Counselor Brunz

began taking notes on a notepad. He testified that he began taking notes

because:

I felt like I needed to document it because we do encourage

patients to keep their charges kind of to [themselves] so that

other patients would not possibly retaliate against them. . .

. Then we also document any odd behaviors or statements

that we overhear and observe.

Id. at 15-16.

During cross-examination, Security Counselor Brunz testified that he

made written progress notes and “charted on clients on behaviors and

interactions throughout the day on a daily basis” and he did so because the

written notes “would be then reviewed by [a] doctor and nurse to kind of get

a whole picture of what was going on.” Id. at 20. He testified that, as to this

aspect of his job, he was “kind of the eyes and ears of the doctors and nurses.”

Id. Nevertheless, even as to the aspect of his job where he would make

written progress notes, Security Counselor Brunz testified that this was done

for “safety and security purposes.” Id. at 21. He further testified that he did

not “render opinions in [his] notes or anything like that[; he] just wr[ote]

down [his] observations.” Id.

On March 7, 2019, the trial court reaffirmed its earlier order, which

(among other things) excluded from evidence the record and testimony
J-A26036-19

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concerning the statements that Cook made while he was a patient at Saint

Peter’s Regional Treatment Center. Trial Court Order, 3/7/19, at 1. The

Commonwealth filed a timely notice of appeal from the trial court’s

interlocutory order and, within the notice of appeal, the Commonwealth

certified that the order terminated or substantially handicapped its

prosecution of Cook. Commonwealth’s Notice of Appeal, 3/11/19, at 1-2; see

also Pa.R.A.P. 311(d).3 The Commonwealth raises one claim on appeal:

Whether the trial court erred as a matter of law and clearly

abused its discretion when it denied [the Commonwealth’s]

motion in limine and motion for reconsideration with regard

to the admissibility of evidence pertaining to statements

made by [Cook] while a patient at the St. Peter Regional

Treatment Center in Minnesota, where the statements were

not made to an agent of a psychotherapist, not made in the

course of treatment, and not covered by the privilege created

under 42 Pa.C.S. § 5944[?]

Commonwealth’s Brief at 9 (some capitalization omitted). “When ruling on a trial court's decision to grant or deny a motion in

limine, we apply an evidentiary abuse of discretion standard of review.” Commonwealth v. Hutchison, 164 A.3d 494, 500 (Pa. Super. 2017)

(quotations and citations omitted). “An abuse of discretion may not be found

merely because an appellate court might have reached a different conclusion.”

____________________________________________

3 The Pennsylvania Supreme Court has held “that the Commonwealth may

appeal a pre-trial ruling on a motion in limine which excludes Commonwealth

evidence in the same manner that it may appeal an adverse ruling on a

suppression motion – i.e., by certification that the order has the effect of

terminating or substantially handicapping the prosecution.” Commonwealth

v. Boczkowski, 846 A.2d 75, 87 (Pa. 2004).
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Cardinale v. R.E. Gas Dev., LLC, 154 A.3d 1275, 1286 (Pa. Super. 2017)

(quotations and citations omitted). “Instead, an abuse of discretion occurs

only where the trial court has reached a conclusion that overrides or

misapplies the law, or when the judgment exercised is manifestly

unreasonable, or is the result of partiality, prejudice, bias or ill-will.” Id.

(quotations, citations, and corrections omitted). Further, to the extent we are

required to review the trial court’s conclusions of law, “our standard of review

is de novo and our scope of review is plenary.” Commonwealth v. Wilmer, 194 A.3d 564, 567 (Pa. 2018).

The issue on appeal concerns the applicability of an evidentiary

privilege. We have held: “[if] the party asserting a privilege shows that the

privilege is properly invoked, the burden shifts to the party seeking the

disclosure to show that disclosure of the information will not violate the

accorded privilege.” In re Subpoena No. 22, 709 A.2d 385, 388 (Pa. Super.

1998).

At the trial level, Cook asserted that his mental health record and the

communications contained therein were privileged under 42 Pa.C.S.A. § 5944. The Commonwealth countered that Section 5944 did not preclude the

admission of either the record or testimony concerning the statements at issue

because: the statements were made to one of Cook’s fellow patients, and not

to a psychotherapist or an agent of the psychotherapist; the statements were

not made during the course of treatment; and, Security Counselor Brunz was
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merely a security officer and “was not engaged in the treatment of [Cook].”

See Commonwealth’s Motion for Reconsideration, 3/1/19, at 1-9.

The trial court agreed with Cook and held that “the patient note written

by [Security Counselor] Brunz and any testimony regarding its contents” were

privileged under Section 5944. See Trial Court Opinion, 4/15/19, at 5. The

trial court reasoned:

while [Security Counselor] Brunz was not a medical

professional who was directly treating [Cook], it is clear that

his role at the facility extended beyond that of a security

guard. Although he may not have made treatment decisions,

he certainly had the ability to influence them via the progress

notes he entered about his observations. [Security

Counselor] Brunz’s notes were entered into the same

electronic system where medical personnel also entered

notes and those administering treatment would review them.

Furthermore, not only did [Security Counselor] Brunz make

and record observations about the patients’ behavior, he

attended the group meetings that were facilitated by medical

personnel. The [trial] court found that [Security Counselor]

Brunz was not merely a casual observer of events for safety

reasons, but rose to the level of an agent by creating records

that would ultimately be consulted in the treatment of

patients.

Based on the scope of [Security Counselor] Brunz’s job

requirements and his level of involvement with patients, it

would be reasonable for a patient such as [Cook] to expect

that communications in his presence would remain

confidential. It also stands to reason that the expectation

would be heightened by the fact that [Cook] was involuntarily

committed to the facility and subject to observation at

virtually all times.

Id. at 4-5 (some capitalization omitted).

On appeal, the Commonwealth claims that the trial court erred in

concluding that the psychotherapist-client privilege applies to this case
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because: 1) Security Counselor Brunz was not a psychotherapist or an agent

of a psychotherapist; 2) Cook’s statements were not made in the course of

treatment; and, 3) Cook’s statements were made to, and in the presence of,

a third party. See Commonwealth’s Brief at 22. We agree that the trial court

erred when it excluded from evidence the record and the testimony regarding

Cook’s statements. 42 Pa.C.S.A. § 5944 states:

§ 5944. Confidential communications to psychiatrists

or licensed psychologists

No psychiatrist or person who has been licensed . . . to

practice psychology shall be, without the written consent of

his client, examined in any civil or criminal matter as to any

information acquired in the course of his professional services

in behalf of such client. The confidential relations and

communications between a psychologist or psychiatrist and

his client shall be on the same basis as those provided or

prescribed by law between an attorney and client.

42 Pa.C.S.A. § 5944.

In accordance with the plain language of Section 5944, we have held

that, “[w]hen interpreting the psychotherapist-client statutory privilege, we

are guided by the same principles that apply to the attorney-client privilege.” In re Subpoena No. 22, 709 A.2d at 388. Further, in analyzing the scope

of this privilege, “we must be mindful that evidentiary privileges are not

favored.” Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa. 1997). The

Pennsylvania Supreme Court explained:

Exceptions to the demand for every man's evidence are not

lightly created nor expansively construed, for they are in
J-A26036-19

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derogation of the search for truth. Thus, courts should accept

testimonial privileges only to the very limited extent that

permitting a refusal to testify or excluding relevant evidence

has a public good transcending the normally predominant

principle of utilizing all rational means for ascertaining the

truth.

Id. (quotations and citations omitted).

This Court has explained the purpose of the psychotherapist-client

privilege:

The privilege afforded by § 5944 was intended to inspire

confidence in the client and to encourage full disclosure to

the psychologist and psychiatrist. By preventing the

[psychotherapist] from making public any information which

would result in humiliation, embarrassment or disgrace to the

client, the privilege is designed to promote effective

treatment and to insulate the client's private thoughts from

public disclosure.

Commonwealth v. Fewell, 654 A.2d 1109, 1112-1113 (Pa. Super. 1995)

(corrections omitted); see also Gormley v. Edgar, 995 A.2d 1197, 1204 (Pa.

Super. 2010) (“[t]he [psychotherapist-client] privilege is based upon a strong

public policy designed to encourage and promote effective treatment and to

insulate the client's private thoughts from public disclosure”). Given the purpose behind the psychotherapist-client privilege and, in

keeping with the relatively tight construction we provide to evidentiary

privileges, we have held:

[Section 5944] acts to bar testimony by the treating

psychologist or psychiatrist, as well as the disclosure of

certain records. While documents prepared during the course

of treatment may sometimes fall within the privilege, Section

5944 pertains only to confidential communications

between psychiatrists or psychologists and their

patients/clients that were made in the course of
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treatment, not to all records and documents regarding

mental health treatment. This Court has previously held that

the privilege codified in Section 5944 does not extend to

reports or other documents that do not contain any

communications made by [the] patient to the

psychotherapist. In evaluating whether the privilege should

apply to certain statements, courts must look to the purpose

and circumstances under which the declarant made them.

Commonwealth v. Pukowsky, 147 A.3d 1229, 1235-1236 (Pa. Super.

2016) (quotations and citations omitted) (emphasis added); see also Gates

v. Gates, 967 A.2d 1024, 1029 (Pa. Super. 2009) (“the provisions of [Section]

5944 relate only to confidential communications with psychiatrists or

psychologists that were made in the course of treatment”). As the trial court recognized, in Commonwealth v. Simmons, this

Court extended the psychotherapist-client privilege to “members of the

[psychotherapist’s] treatment team.” Commonwealth v. Simmons, 719

A.2d 336, 343 (Pa. Super. 1998).4 However, the Simmons Court continued

to hold that – to be privileged – any statement must be made by the client “in

confidence” to a member of the treatment team and “in the course of

facilitating the treatment plan.” Id. at 343. The Simmons Court reasoned:

the § 5944 privilege sets forth that “The confidential relations

and communications between a psychologist and his client

shall be on the same basis as those provided or prescribed

by law between an attorney and a client.” [42 Pa.C.S.A.

§ 5944.] In determining whether a communication by a

____________________________________________

4 Simmons was an extension of this Court’s 1991 opinion in Kalenevitch v.

Finger, which held that “communications made to the agent of a licensed

psychologist or psychiatrist are privileged by 42 Pa.C.S.A. § 5944.”

Kalenevitch v. Finger, 595 A.2d 1224, 1228 (Pa. Super. 1991).
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client to someone other than his attorney is covered by the

attorney-client privilege, courts have held that as long as the

recipient of the information is an agent of the attorney and

the statement is made in confidence for the purpose of

facilitating legal advice, it is privileged. Commonwealth v.

Noll, 662 A.2d 1123, 1126 (Pa. Super. 1995) (confidential

statement to accident reconstructionist hired by attorney to

determine whether the client should sue is privileged);

Commonwealth v. Mrozek, 657 A.2d 997, 999-1000 (Pa.

Super. 1995) (inculpatory statement to attorney's secretary

made while defendant was seeking to retain attorney for legal

representation and advice is privileged); Commonwealth v.

Hutchinson, 434 A.2d 740, 744-745 (Pa. Super. 1981)

(inculpatory statement made to investigator for public

defender's office is privileged). In the attorney-client context,

the job description of the recipient of a confidential

communication or their lack of legal training is irrelevant so

long as the recipient is an agent of an attorney and the

statement is made in confidence for the purpose of obtaining

or facilitating legal advice. We find that this reasoning should

apply with equal force to members of the [psychotherapist’s]

treatment team in conversations with [the client] in the

course of facilitating the treatment plan.

. . . Thus, the mere fact that the other members of the treatment

team were not themselves psychologists does not defeat the

privilege should it otherwise apply. [The client] is entitled to

protection in [his] confidential communications to members

of the team. . . . [Simply stated,] the § 5944 privilege

protects any confidential statements made by [the client] to

any member of the treatment team during the course of

private interviews conducted for purposes of review and

evaluation of the treatment plan. Simmons, 719 A.2d at 343-344 (footnotes omitted).

In the case at bar, Cook made his statements in a private conversation

to a fellow patient, during recreational time in a library, and outside of any

therapy session. The fellow patient was not a member of Cook’s treatment
J-A26036-19

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team, Cook’s statements to this patient were not “confidential”

communications between Cook and a member of his treatment team, and

Cook’s statements were not made “in the course of treatment.” Instead,

Cook’s statements were made during a private conversation between Cook

and a third-party, which were overheard by Security Counselor Brunz and then

recorded, by Security Counselor Brunz, in his notes.

Put simply, since Cook did not make his statements to a member of his

treatment team, since Cook’s statements were not confidential, and since

Cook’s statements were not made “in the course of treatment,” Cook’s

statements are not protected under the psychotherapist-client privilege. As

such, we respectfully vacate the portion of the trial court’s March 7, 2019

order that excluded from evidence the patient record and testimony

concerning the statements Cook made while he was a patient at Saint Peter’s

Regional Treatment Center.5

Order vacated in part. Case remanded. Jurisdiction relinquished.

____________________________________________

5 The trial court’s March 7, 2019 order also reaffirmed the portion of its earlier

order, which granted in part and denied in part “the Commonwealth’s motion

in limine seeking to admit evidence relating to [Cook’s] arrest on December

10, 1991.” See Trial Court Order, 3/7/19, at 1; Trial Court Order, 2/25/19,

at 1 (some capitalization omitted). The Commonwealth did not appeal this

portion of the March 7, 2019 order and, thus, our disposition does not effect

this portion of the order.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2020