J-A26027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.M.G., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.M.G.                          :
                                               :
                                               :
                                               :
                                               :   No. 476 MDA 2017

                Appeal from the Order Entered March 15, 2017
     In the Court of Common Pleas of Cumberland County Civil Division at
                            No(s): 2017-3322-CV,
                           CP-21-JV-0000206-2014


BEFORE:      BOWES, J., OLSON, J., and RANSOM*, J.

DISSENTING MEMORANDUM BY BOWES, J.:                         FILED MAY 18, 2018

       The learned majority presents a scholarly expression of rationale.      I

agree with the finding that the trial court violated Appellant’s psychiatrist-

patient privilege by failing to adequately redact the April 7, 2015 psychiatric

evaluation performed by Rocco Manfredi, M.D., before it submitted the

document to the Sex Offender Evaluation Board (“SOAB”) for its assessment

of Appellant pursuant to Act 21 of 2003 (“Act 21”).1 Accordingly, I adopt that

portion of the majority memorandum in its entirety.           However, unlike my

esteemed colleagues, I do not believe that the myriad violations of the

psychiatrist-patient privilege in this case can be relegated to harmless error.

____________________________________________


1 Act 21, 42 Pa.C.S. § 6401, amended the Juvenile Act to include procedures
for the assessment and civil commitments of sexually violent juveniles who
have been adjudicated delinquent. In Re K.A.P., 916 A.2d 1152, 1156 n.3
(Pa.Super. 2007)
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Thus, I do not join the majority’s decision to affirm the order of civil

commitment.

      As codified in 42 Pa.C.S § 5944, the psychiatrist-patient privilege

provides a follows:

             No psychiatrist or person who has been licensed under the
      act of March 23, 1972 (P.L. 136, No. 52), to practice psychology
      shall be, without the written consent of his client, examined in any
      civil or criminal matter as to any information acquired in the
      course of his professional services on behalf of such client. The
      confidential relations and communications between a psychologist
      or psychiatrist and his client shall be on the same basis as those
      provided or prescribed by law between an attorney and client.

42 Pa.C.S. § 5944.

      The privilege is designed to protect disclosures made by patients during

the course of treatment.       Commonwealth v. Carter, 821 A.2d 601

(Pa.Super. 2003). It is intended to aid in the effective treatment of a mental

health patient by encouraging the patient to disclose information fully and

freely without fear of public exposure. In re T.B., 75 A.3d 485 (Pa.Super.

2013). Stated another way, its purpose is to inspire confidence in the patient

that the information he provides will not be used against him. Gormley v.

Edgar, 995 A.2d 1197 (Pa.Super. 2010).

      In In re T.B., this Court applied § 5944 within the framework of an Act

21 assessment. In invoking the statutory privilege, we recognized “that the

confidential statements the law protects ‘are the key to the deepest, most

intimate thoughts of an individual seeking solace and treatment,’ and may not

be readily disclosed.” In re T.B., supra at 496 (quoting Gormley, supra at


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1204). Thus, as we held in In re T.B., a juvenile’s statements made to a

mental health professional during treatment are privileged, and absent written

consent, the statements may not be released to the SOAB. Id. at 497.

      As the majority observed, the Commonwealth’s expert, SOAB member

Robert M. Stein, Ph.D., opined from his review of the partially redacted records

provided by the trial court that Appellant met the criteria for civil commitment

under Act 21 because Appellant suffered from a mental abnormality such that

he is likely to commit violent sexual acts if released into the community. While

the majority notes that Dr. Stein’s opinion was formed, at least in part, in

reference to the April 7, 2015 psychological evaluation performed by Dr.

Manfredi,   wherein   Appellant   admittedly    made    several   incriminating

revelations for the purpose of his treatment, it concludes that the disclosure

was tantamount to harmless error. I disagree.

      An error is harmless if “the appellate court determines that the error

could not have contributed to the verdict.” Commonwealth v. Rush, 605

A.2d 792, 794 (Pa. 1992). Rephrased for clarity, “an error cannot be harmless

if there is a reasonable possibility the error might have contributed to the

conviction.” Commonwealth v. Cooley, 118 A.3d 370, 380 (Pa. 2015). As

we recently reiterated,

      Harmless error exists where: (1) the error did not prejudice the
      defendant or the prejudice was de minimis; (2) the erroneously
      admitted evidence was merely cumulative of other untainted
      evidence which was substantially similar to the erroneously
      admitted evidence; or (3) the properly admitted and


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      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

Commonwealth v. Radecki, 180 A.3d 441, 461 (Pa.Super. 2018) (quoting

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002)).

      The majority provides two independent bases to find harmless error: 1)

Appellant’s expert did not contest Dr. Stein’s assessment of a mental disorder

and predisposition to commit violent sexual acts; and 2) Dr. Stein’s opinion

was not influenced by the privileged communication.         In my view, neither

ground permits us to ignore the blatant violations of the psychiatrist-client

privilege in this case, especially in light of the purpose of the privilege and the

public policy that it was designed to reinforce, i.e., to inspire confidence that

the information patients provide in furtherance of treatment will not be used

against them.

      First, I believe application of the harmless error doctrine is inappropriate

in the present scenario. I note that this Court did not envision the application

of the harmless error analysis in In re T.B., supra. Instead, having found

that the trial court erred in forwarding unredacted treatment documents to

the SOAB for its Act 21 assessment, we simply vacated the civil commitment

order and remanded the matter for the trial court to “to determine whether

the statements, evaluations and summaries at issue were completed for

treatment purposes.” Id. at 496. Tellingly, we instructed the trial court that,

if “the statements, evaluations, and summaries were made for treatment


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purposes and the juvenile was not represented by counsel and informed of his

right against self-incrimination, the court shall vacate the determination of

the SOAB and may resubmit the matter for evaluation by the Board without

access to the records in question.” Id. at 497 (emphasis added). As it is clear

in the case at bar that Appellant’s statements and admissions were made for

treatment purposes and that he was neither represented by counsel nor

informed of his right against self-incrimination, I would vacate the civil

commitment order and direct that the SOAB perform a new assessment that

does not implicate Appellant’s privileged communications.

      Second, even if a harmless error analysis is appropriate in Act 21 cases,

I do not believe it would be warranted herein, where the SOAB assessment

was obviously tainted by the consideration of             Appellant’s privileged

communications.     While the majority notes the SOAB’s reference to Dr.

Manfredi’s 2015 evaluation report, it neglects to acknowledge that said report

specifically referenced a prior psychiatric evaluation performed by Craig A.

Taylor, M.D. on October 11, 2013. That earlier evaluation contained additional

damning statements that Appellant made to his physicians for the purpose of

treatment.

      My review of the two psychiatric evaluations exposes the following

revelations that Appellant made to mental health professionals during

treatment.     In January 2013, Appellant reported “command auditory

hallucinations,” including “hallucinations of his biological mother’s voice telling


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him to hurt himself and others.” Psychiatric Evaluation, 10/11/13, at 1, 2.

Nine months later, he “admitted to having inappropriate sexual contact with

a younger adoptive sister as well as foster siblings when in the adoptive

home.” Id. at 1. During the interview phase of the 2013 evaluation, Appellant

“state[d] that he had heard voices and things over the past weekend but could

not ‘really say’ what they were and did not want to talk about it.” Id. at 4.

In addition, “[h]e denie[d] suicidal ideations, homicidal ideation or urges to

harm [him]self or others.” Id.

      The subsequent evaluation by Dr. Manfredi confirmed Appellant’s earlier

reports of hallucinations. Moreover, the juvenile advised Dr. Manfredi “that

over the past few years[,] voices have told him to harm others. They also tell

him the future.    He claims that it is different voices and [it] will occur

randomly.”    Psychiatric Evaluation, 4/7/15, at 2.   However, “[h]e denied

thought insertion, thought broadcasting, [and] thought withdrawal.”        Id.

Similarly, Appellant “denied obsessions, compulsions and phobias.” Id. at 3.

Significantly, as it relates to the content of the information that was

incorporated into Dr. Stein’s SOAB assessment, Appellant previously revealed

to his mental health professionals that he abused his younger sister, reviewed

pornography “almost on a daily basis,” and “acknowledge[d] rape force

fantasies.” Id. In addition, Dr. Stein recalled, “[Appellant] has self-reported

behaviors of a paraphiliac or sexually deviant nature that has included




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exposing himself, sex with animals, peeping[-]Tom type behaviors, and

fondling of young girls.” N.T., 3/13/17, at 13.

      All of the foregoing privileged information was improperly submitted to

the SOAB without adequate redaction, either directly or included within the

sources that Dr. Stein reviewed to make his determination. Furthermore, my

review of the certified record belies the majority’s contention that “Dr. Stein’s

opinions on Appellant’s mental abnormalities and his likeliness to commit

sexually violent acts if released into the community were not influenced by

the documents improperly sent the SOAB in unredacted form.”             Majority

Memorandum at 12. In actuality, Dr. Stein testified that he utilized all of the

information that he was provided about Appellant, including “statements that

he made while in treatment to various mental health professionals.” N.T.,

3/13/17, at 24. Furthermore, Dr. Stein confirmed that Appellant’s statements

were made for the purposes of treatment, and he acknowledged that, to his

knowledge, the juvenile was not advised of his right against self-incrimination

and the information was released to the SOAB without the juvenile’s written

consent. Id. at 24, 25-26. Moreover, contrary to the majority’s classification

of Appellant’s revelations as inconsequential, Dr. Stein deemed the various

statements significant.    Indeed, as set forth, infra, Dr. Stein expressly

characterized the information in terms ranging from “component[s] of the

analysis” to “important” to “extremely important.” Id; N.T., 12/19/16, at 28,

32. Thus, I cannot countenance the conclusion that the multiple violations of


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the psychiatrist-patient privilege, some of which I outlined supra, did not

influence Dr. Stein’s ultimate conclusion regarding Appellant’s mental

abnormalities and his likeliness to commit sexually violent acts if released into

the community.

      Dr. Stein first presented the SOAB assessment report to the trial court

during the December 19, 2016 dispositional review hearing to determine

whether probable cause existed to begin the civil commitment process under

§ 6358(e).      During cross-examination, Dr. Stein confirmed that the

statements Appellant made to his mental health treatment professionals,

including self-reported offenses that were never charged, were “important” to

forming the opinion presented in his SOAB assessment report.               N.T.,

12/19/16, at 28. He subsequently reiterated that the disclosures and self-

reported deviant behaviors were “part of . . . the entire evaluation” and

explained that a maintenance polygraph test, which Dr. Stein characterized

as “of most concern for this type of proceeding,” was populated with questions

that were derived from Appellant’s prior statements to mental health

professionals during treatment.      Id. at 29, 31.      Dr. Stein stated that

Appellant’s revelations regarding prior sexual activities and ideations were

“extremely important” to his assessment. Id. at 32.

      Later, during the formal Act 21 involuntary commitment hearing, Dr.

Stein again presented the SOAB assessment report, testified about its

preparation, and reiterated that he relied upon Appellant’s self-reporting as a


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component in his determination regarding Appellant’s likelihood to reoffend.

N.T., 3/13/17, at 16. In fact, Dr. Stein unabashedly identified Appellant’s self-

disclosed cognitive distortions as an example of the juvenile’s “questionable

internal motivation for change.” Id. at 16-17. Likewise, after summarizing

Appellant’s psychiatric diagnoses, Dr. Stein opined, “given this collection of

disorders all related to impulse control problems and the history of pedophiliac

behavior or sexual behavior with children, taken together there is sufficient

evidence for a mental abnormality that would predispose to sexual offending.”

Id. at 14. Hence, the certified record bears out that the SOAB considered the

privileged statements in its assessment.

       Contrary to the majority, I believe that the foregoing disclosures that

Appellant provided during the course of his mental health treatment

undoubtedly formed part of Dr. Stein’s expert conclusion regarding Appellant’s

likeliness to commit sexually violent acts if released into the community. From

my perspective, the consideration of the privileged statements that Appellant

made    for   the   purposes   of   treatment,   including   reports   of   auditory

hallucinations and various admissions to sexually deviant behaviors, tainted

the board’s conclusion that involuntary civil commitment was warranted

pursuant to 42 Pa.C.S. 6403(a)(3). Unlike my learned colleagues, I do not

believe that we can sidestep the stain of unauthorized disclosure by combing

the record for an independent basis to find the error harmless.




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     Thus, consistent with our directive in In re T.B., supra, I would remand

the matter for a new civil commitment hearing utilizing a SOAB assessment

that was not complied by individuals whose outlook was tainted by exposure

to privileged mental communications.




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