J-A26036-19

                                   2020 PA Super 90

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CHARLES COOK                               :   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.
J-A26036-19



      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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J-A26036-19



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]

                                       -3-
J-A26036-19


       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



                                           -4-
J-A26036-19


____________________________________________


         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).




                                           -5-
J-A26036-19



       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.


                                           -6-
J-A26036-19



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.


                                       -7-
J-A26036-19



      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.



                                       -8-
J-A26036-19



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

                                     -9-
J-A26036-19



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).


                                          - 10 -
J-A26036-19



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




                                      - 11 -
J-A26036-19



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

                                    - 12 -
J-A26036-19



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

                                    - 13 -
J-A26036-19


        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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J-A26036-19


         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
____________________________________________


4Simmons 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).


                                          - 15 -
J-A26036-19


        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



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J-A26036-19



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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J-A26036-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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