J-A27035-19

                               2020 PA Super 31

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




* Retired Senior Judge assigned to the Superior Court.
J-A27035-19


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.

5See 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.

6Yu-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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J-A27035-19


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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J-A27035-19


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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J-A27035-19


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, on-

the-record, oral vacatur while it took a motion for reconsideration under


                                   -7-
J-A27035-19


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

                                  -8-
J-A27035-19


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


                                     -9-
J-A27035-19


      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.




                                  - 10 -
J-A27035-19


       (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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J-A27035-19


      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.



                                      - 12 -
J-A27035-19


              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).

____________________________________________
10Subject 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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J-A27035-19


[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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J-A27035-19


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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J-A27035-19


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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J-A27035-19


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)


                                        - 20 -
J-A27035-19


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.



                                      - 21 -
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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).

15This 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.



                                       - 22 -
J-A27035-19


      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



                                 - 23 -
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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 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)


                                       - 24 -
J-A27035-19


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)


                                      - 25 -
J-A27035-19


      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.



                                      - 26 -
J-A27035-19


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


                                 - 27 -
J-A27035-19


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.



                                       - 28 -
J-A27035-19


     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.




                                   - 29 -
J-A27035-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/20




                          - 30 -
