J-A30039-14


                                   2015 PA Super 97

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

T.J.W., JR.

APPEAL OF: C.W., A MINOR

                                                       No. 1351 EDA 2014


                       Appeal from the Order April 1, 2014
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0002128-2012


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

OPINION BY PLATT, J.:                                      FILED APRIL 24, 2015

        Appellant, C.W., appeals from the order directing her counsel to

provide certain mental health treatment records for in camera inspection by

the trial court to determine if the materials at issue are privileged. Appellant

argues that the court erred because the records are protected from release

by 42 Pa.C.S.A. § 5944, confidential communications to psychiatrists or

licensed psychologists.       We find that the claim of privilege, to prevent in

camera inspection, was waived. The trial court properly ordered production

for in camera examination to determine whether privilege applies to prevent

further disclosure. Accordingly, we affirm the order and remand.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       This is an interlocutory appeal.1 The underlying case has a somewhat

convoluted as well as protracted history.         We summarize the facts most

pertinent to the issues raised in this appeal. (For a more detailed history of

the case, see Trial Court Opinion, 6/10/14, at 2-4; see also Trial Court

Opinion and Order, 4/05/13, at 1-9).

       Appellee, T.J.W. Jr. (Appellee T.J.W.),2 is charged with rape by forcible

compulsion, involuntary deviate sexual intercourse, aggravated indecent

assault and related charges.           Appellant, the complainant, is his natural

(biological) daughter. In 2011, Appellant, then nineteen, accused her father

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1
  The parties do not dispute that the April 1, 2014 order, requiring the
production of Appellant’s mental health records, alleged to be confidential
and privileged, in a criminal matter, is appealable as a collateral order. See
Commonwealth v. Simmons, 719 A.2d 336, 339 (Pa. Super. 1998);
Commonwealth v. Miller, 593 A.2d 1308, 1309-10 (Pa. Super. 1991); see
also Pennsylvania Rule of Appellate Procedure 313, which provides in
pertinent part that:

       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(b).
2
  The Commonwealth has also filed a brief in this appeal, urging this Court to
reverse the trial court. (See Commonwealth’s Brief, at 11). Although the
Commonwealth has captioned its brief as “Brief for Appellee,” it also states
that it “joins as a co-appellant.” (See id. at 10). To avoid confusion of
terminology, we will refer to T.J.W. as Appellee T.J.W. and the
Commonwealth simply as the Commonwealth.




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of rape, sexual molestation, and related acts beginning when she was four-

and-a-half years old, until she was seventeen.3       The Pennsylvania State

Police trooper investigating Appellant’s charges had her sign releases and

obtained records from various psychiatric and mental health treatment

providers.

       Appellant testified at a preliminary hearing that over the twelve year

time span, Appellee T.J.W., engaged in six to eight acts of oral, vaginal and

anal intercourse with her, as well as digital penetration and other

inappropriate touching, without her consent.         (See N.T., Preliminary

Hearing, 6/08/12, at 11-28).

       Appellant further testified that she always remembered the first

incident, when she was about four and her father had her perform oral sex

on him in his shower. (See id. at 43). However, on cross-examination, she

also testified that she blocked out the memories of the other later incidents

until she was nineteen. (See id. at 50). At that time, she began receiving

amorous emails from one of her college professors, who apparently was

trying to pursue her romantically (Appellant says he “hit on” her), telling her

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3
  The caption designation of Appellant as a minor may be confusing without
a further clarification. Appellant was born in February of 1992. (See N.T.
Preliminary Hearing, 6/08/12, at 8). Therefore, while Appellant alleges
various sexual assaults by Appellee T.J.W. when she was a minor, by the
time she made the complaint on which these charges are based she had
attained the age of majority. (See id.; see also Trial Ct. Op., 6/10/14, at 1
n.1).



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she was beautiful and that she made his wife jealous. (Id. at 50-51; see

also Appellant’s Brief, at 37 n.8).

       Appellant stated that these emails from a man about her father’s age

who also told her she was beautiful and treated her “in a sexual nature”

triggered memories by which she gradually recalled her father’s other sexual

assaults. (N.T. Preliminary Hearing, at 51; see also id. at 56-57).

       Appellee T.J.W. denies the charges.          He maintains that Appellant’s

recovered memories are false.             He asserts that they were induced by

controversial     techniques       employed      during   Appellant’s   course   of

psychotherapy.        He argues that the process of recovering repressed

memories of childhood sexual abuse is unproven and unreliable. 4 Appellee

also argues in his brief, as he did at oral argument, that Appellant’s

counsel’s agreement to a stipulated order, and subsequent refusal to submit

the documents to the trial court, raises the inference that “the files contain

exculpatory evidence that contradicts or undermines [Appellant’s] version of

the facts.” (Brief of [ ] Appellee [T.J.W.], at 34).

       Appellee T.J.W. also filed an omnibus pre-trial motion and served

subpoenas on several of Appellant’s mental health treatment providers.

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4
  We note that Judge Nagle granted the Commonwealth’s motion in limine to
exclude the testimony of Appellee T.J.W.’s proposed expert on the issue of
repressed memory, if “offered to challenge the credibility of” Appellant.
(Order, 9/06/13).




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(See Trial Ct. Op., 6/10/14, at 2).            The Commonwealth filed a motion to

quash the subpoenas. (See Commonwealth’s Motion to Quash Subpoenas,

9/04/12).      On November 30, 2012, counsel entered his appearance to

represent Appellant and filed another motion to quash on her behalf.

Appellee T.J.W. withdrew the subpoenas, but apparently served another set

later.    Eventually, the parties to the litigation and counsel for Appellant

reached an agreement, and the court entered an order with accompanying

opinion on April 5, 2013. (See Opinion and Order of Court, 4/05/13).

         On December 5, 2013, the trial court filed another order.5 This order

directed Appellant’s treatment providers to submit their records to her

counsel, who would redact any information asserted to be privileged, and

prepare a privilege log, both to be forwarded to the trial court. The court

directed counsel to forward a copy of the privilege log (only) to Appellee

T.J.W. and to the Commonwealth.

         Counsel for Appellant eventually submitted a response.6         Appellee

T.J.W. filed a motion to strike, asserting that the submission was not

____________________________________________


5
  The trial court notes that this order was based on a stipulation. (See Trial
Ct. Op., 6/10/14, at 3). The court also notes that at all times pertinent to
the stipulated order the parties and Appellant were represented by counsel.
(See id. at 3 n.5).
6
 On January 24, 2014, this case was re-assigned from Senior Judge Ronald
C. Nagle to the Honorable Anne Marie Wheatcraft, who continues to preside
over the proceedings in the trial court. (See Order, 1/24/14; see also
Appellant’s Brief, at 9).
(Footnote Continued Next Page)


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compliant with the order. On April 1, 2014, after a hearing, the trial court

filed another order, the order on appeal here, directing Appellant’s counsel

to produce and deliver to the trial court redacted mental health treatment

records and privilege logs pursuant to the terms of the stipulated order of

December 5, 2013.7          (See Order, 4/01/14, at 1-2).   Instead, counsel for

Appellant filed the instant timely appeal, on April 25, 2014.8

      Appellant presents seven questions for our review:

            1. Does the privilege contained in 42 Pa.C.S. [§] 5944
      prohibit the disclosure by a psychiatrist or psychologist of all
      information acquired in the course of treatment of a patient
      without the consent of the patient?

            2. Does the privilege contained in 42 Pa.C.S. [§] 5944
      prohibit the disclosure by a psychiatrist or psychologist of
      communications from the therapist to the patient during
      treatment without the consent of the patient?

            3. May the Commonwealth and/or the defendant in a
      criminal case issue subpoenas to non[-]parties, including the
      victim of a child sexual assault case and her mental health
      treatment providers, for the sole purpose of obtaining pre-trial
      discovery?


                       _______________________
(Footnote Continued)


7
  The order also directed, inter alia, that Appellant’s counsel provide a
privilege log, identifying any redactions and describing the basis for any
privilege asserted, to Appellee T.J.W. and to the Commonwealth. (See
Order, 4/01/14, at 1-2). The court impounded the order to protect the
identity of the complainant, Appellant. (See id. at 2, ¶ D).
8
 Counsel filed a statement of errors on May 19, 2014. The trial court filed
an opinion on June 10, 2014. See Pa.R.A.P. 1925.




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J-A30039-14


            4. Where a proper [m]otion to [q]uash is filed, should a
       subpoena directed to a treating psychologist or psychiatrist of a
       crime victim be quashed as overbroad under circumstances
       where the victim has not consented to disclosure, and the
       subpoena explicitly requires the production of records protected
       by 42 Pa.C.S. [§] 5944?

             5. Where a proper [m]otion to [q]uash is filed, should a
       subpoena directed to a treating psychologist or psychiatrist of a
       crime victim be quashed as overbroad under circumstances
       where the victim has not consented to disclosure, and the
       subpoena requires the production of extremely personal
       information not limited with respect to time period or subject
       matter to materials relevant to the criminal case for which they
       were subpoenaed?

             6. In a case where a treating psychiatrist or psychologist
       has testified that the contents of their records of treatment of a
       crime victim are protected by 42 Pa.C.S. [§] 5944, and there is
       no contrary evidence in the record, may the [c]ourt require the
       disclosure of those records?

             7. May a psychiatrist or psychologist who has provided
       professional services on behalf of a patient be examined in a
       criminal case about information acquired in the course of
       treatment in the absence of the written consent of the client,
       and over her explicit objection?

(Appellant’s Brief, at 4-5).

       Preliminarily, we note that Appellant’s third, fourth, fifth and seventh

questions address whether the outstanding subpoenas should be quashed.

However, Appellant concedes that the trial court did not enter an order

concerning the motions to quash. (See id.).9

____________________________________________


9
  Moreover, in the argument section for the seventh question, Appellant
concedes that “the issue is not presented in this case[.]” (Appellant’s Brief,
at 42-43).



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J-A30039-14


       Therefore, none of these questions properly raise an issue concerning

a final, or otherwise appealable, order. An issue before this Court is moot if

in ruling on it the Court cannot enter an order that has any legal force or

effect. See In re J.A., 107 A.3d 799, 811 (Pa. Super. 2015). This Court

does not render advisory opinions.             See id.; see also Pa.R.A.P. 341

(providing for appeals from final orders); Pa.R.A.P. 313 (providing for

appeals from collateral orders). Accordingly, these four questions are moot,

and we decline to address them.10

       Appellant’s first, second and sixth questions all challenge the trial

court’s order, citing 42 Pa.C.S.A. § 5944.11 (See Appellant’s Brief, at 4-5).


____________________________________________


10
   In any event, the over-arching claim, that the issuance of a subpoena in a
criminal case for pre-trial discovery is invalid, is of doubtful merit. See
Pa.R.Crim.P. 107, Comment (“subpoena shall be used . . . for any . . . stage
of the proceedings when a subpoena is issuable”); see also
Commonwealth v. Berger, 96 A.3d 1049, 1051 (Pa. Super. 2014) (trial
courts have authority pursuant to subpoena power to order disclosure of files
in possession of third party); Miller, supra at 1311 (trial court had
authority by virtue of subpoena power to order non-party rape crisis center
to produce records pertaining to alleged victim).
11
   Confidential         communications           to   psychiatrists   or   licensed
psychologists

             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 in behalf of such client. The
       confidential    relations  and    communications     between     a
       psychologist or psychiatrist and his client shall be on the same
(Footnote Continued Next Page)


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J-A30039-14


With minor variations, the three questions raise the same essential claim ─

that all information acquired by her psychiatrists or psychologists, including

communications from the therapist to Appellant as the patient, and records

of treatment, are protected by absolute privilege under section 5944.     We

address these three questions together.

      Where a case involves the proper construction of a statute, our

standard of review is de novo and our scope of review is plenary.        See

Octave ex rel. Octave v. Walker, 103 A.3d 1255, 1259 (Pa. 2014).

      We begin by noting that “[t]he law is clear that a criminal defendant is

entitled to know about any information that may affect the reliability of the

witnesses against him.”         Commonwealth v. Mejia-Arias, 734 A.2d 870,

876 (Pa. Super. 1999) (quoting Commonwealth v. Copeland, 723 A.2d

1049, 1051-52 (Pa. Super. 1998), appeal denied, 747 A.2d 897 (Pa. 1999)).

Therefore, absent an applicable claim of privilege, if Appellee T.J.W. were

able to articulate a reasonable basis for his request, he would have a

colorable claim to seek evidence which might show that the complainant’s

memories were somehow impaired or otherwise unreliable.



                       _______________________
(Footnote Continued)

      basis as those provided or prescribed by law between an
      attorney and client.

42 Pa.C.S.A. § 5944 (footnote omitted).




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      Tracking the language of section 5944, Appellant argues that the

privilege here asserted is “as impenetrable as the attorney-client privilege.”

(Appellant’s Brief, at 11).   The trial court concluded that these claims are

waived. (See Trial Ct. Op., 6/10/14, at 5). After review, we agree.

      A privilege can be waived.       See Octave, supra at 1262 (holding

patient waived confidentiality protections under Mental Health Procedures

Act (MPHA) [50 P.S. § 7111] where, judged by an objective standard, he

knew or reasonably should have known his mental health, specifically

suicidal tendencies, would be placed directly at issue by filing lawsuit for

injuries suffered after he allegedly attempted to commit suicide by jumping

under tractor-trailer); see also Law Office of Douglas T. Harris, Esq. v.

Phila. Waterfront Partners, LP, 957 A.2d 1223, 1232 (Pa. Super. 2008)

(holding client implicitly waived attorney-client privilege when his attorney

failed to invoke or assert privilege before trial court, and raised issue for first

time on appeal).

      Here, Appellant, through counsel, agreed to the stipulated order of

December 5, 2013.      Notably, the trial court (then-presiding Judge Nagle)

expressly held that order in abeyance for three days to afford counsel an

opportunity to appeal the ruling prior to its entry into effect. (See Order,

12/05/13, at 2 ¶ 4).     Appellant elected not to do so.      (See Trial Ct. Op.,

6/10/14, at 5 n.6).




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J-A30039-14


     Therefore, we conclude that Appellant waived her claim of privilege by

agreeing to the stipulated order in December of 2013, and not asserting

privilege until over four-and-a-half months later, after the instant order

directing compliance with the order from December.

     Moreover, the claim would not merit relief.     Our Supreme Court has

recently explained:

           It must be emphasized that evidentiary privileges have
     been viewed by this Court to be in derogation of the search for
     truth, and are generally disfavored for this reason.            See
     Commonwealth, Department of Transportation v. Taylor,
     576 Pa. 622, 841 A.2d 108, 118 (2004) (Nigro, J., dissenting)
     (“It is well established that evidentiary privileges . . . are
     generally disfavored and should be narrowly construed.” (citation
     omitted)); Commonwealth v. Stewart, 547 Pa. 277, 690 A.2d
     195, 197 (1997) (discussing clergy-communicant privilege,
     noting courts should accept privileges “ ‘only to the very limited
     extent that . . . excluding relevant evidence has a public good
     transcending the normally predominant principle of utilizing all
     rational means for ascertaining the truth’ ” (citation omitted));
     Hutchison v. Luddy, 414 Pa. Super. 138, 606 A.2d 905, 909
     (1992) (“ ‘[E]xceptions to the demand for every man’s evidence
     are not lightly created nor expansively construed, for they are in
     derogation of the search for the truth.’ ” (quoting Herbert v.
     Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 60 L.Ed.2d 115
     (1979))). The effect of that concern in this case is obvious.
     Accordingly, we hold a patient waives his confidentiality
     protections under the MHPA where, judged by an objective
     standard, he knew or reasonably should have known his mental
     health would be placed directly at issue by filing the lawsuit.

Octave, supra at 1262 (footnote omitted).

     Similarly here, from our review of the record we conclude that

Appellant should reasonably have known (or that counsel would have timely

advised her) that the long delay in reporting the persistent memory of the


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J-A30039-14


first incident and the recovery of memories of the intervening incidents,

would, inter alia, raise an issue of the reliability of the recovered memories.

      Appellant argues that the privilege is absolute. (See Appellant’s Brief,

at 16). However, we conclude that especially in the circumstances of this

case, Appellant’s argument is unpersuasive.

      We recognize that some predecessor panels of this Court have

analyzed psychiatrist/psychologist-client confidentiality under 42 Pa.C.S.A.

§ 5944 using the “absolute privilege” terminology adopted here by

Appellant. (See id. at 14 (citing Commonwealth v. Kyle, 533 A.2d 120,

123-25 (Pa. Super. 1987), appeal denied, 541 A.2d 744 (Pa. 1988)) (trial

court properly denied defendant inspection of rape victim’s file of post-attack

counseling with licensed clinical psychologist or, alternatively, in camera

review by court)).

      Appellant also argues that our Supreme Court has ruled similarly. She

cites Commonwealth v. Dowling, 883 A.2d 570, 575 (Pa. 2005), cert.

denied, 549 U.S. 838 (2006) (holding on direct appeal that trial court

properly refused capital murder defendant access to mental health records

of prosecution witness, his own thirteen year old daughter, to challenge her

competency to testify). (See Appellant’s Brief, at 15-16, 22, 27-28).

      We note that the appellant, Dowling, asserted that the trial court erred

by denying him access to the mental health records of his thirteen year-old

daughter on the basis that he was on a “fishing expedition designed to


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J-A30039-14


attempt to discredit [his daughter] in any way possible.” Dowling, supra

at 575 (record citation omitted).

       Dowling sought to assert a generalized challenge to his daughter’s

competency based on claimed diagnoses of depression, panic disorder and

agoraphobia. Our Supreme Court also noted that at trial Dowling could have

challenged his daughter’s mental health and competency to testify, “but

opted not to.” Id. at 576. On review, we find the facts and the holding in

Dowling distinguishable from this case, where Appellee T.J.W., before trial,

asserts a specific challenge to the recovered memories of his now-adult

daughter.

       Furthermore, we note that even in the cases which adopt the “absolute

privilege” terminology, there is recognition, often expressly, that the

disposition of a claim of privilege involves an impartial assessment of the

competing claims. See Kyle, supra at 129 (concluding “that the balance

tips   in   favor   of   non-disclosure”)    (emphasis   added);   see   also

Commonwealth v. Counterman, 719 A.2d 284, 295 (Pa. 1998), cert.

denied, 528 U.S. 836 (1999) (statutory privilege in section 5944 “not

outweighed by either a defendant’s Sixth Amendment right to cross-

examine a witness or his right to due process of law”) (emphasis added)

(citations omitted).

       Additionally, in Simmons this Court concluded in pertinent part that

“files containing diagnoses, opinions, evaluations, and treatment plans . . .


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J-A30039-14


are not confidential communications from the client covered under § 5944.”

Simmons, supra at 344.      Accord, Commonwealth v. Carter, 821 A.2d

601 (Pa. Super. 2003). In Carter, Judge (now Justice) Stevens explained:

            In the case sub judice, we have no difficulty concluding
     that the opinions, observations, diagnosis, and treatment
     alternatives outlined by the professionals who interviewed
     Appellant during his juvenile detention are not privileged under
     Section 5944. Commonwealth v. G.P., 765 A.2d 363 (Pa.
     Super. 2000) (holding that opinions formulated by a psychiatrist
     based on observations are not privileged); Id. However, we
     must proceed to determine whether the disclosures made by
     Appellant to psychiatrists during his juvenile detention are
     privileged. In doing so, it is necessary to determine to what
     extent the disclosures were made during the treatment process.
     Id.

Id. at 608-09 (also citing Simmons, supra at 341).

     Here, as in Simmons and Carter, remand is required to implement

the order and allow the trial court to determine what communications are

protected by the privilege claimed. See also Pennsylvania v. Ritchie, 480

U.S. 39, 61 (1987) (plurality) (permitting in camera review by trial court of

confidential records to determine if they contain material exculpatory to

defendant); Berger, supra at 1055 (remanding to trial court for rule to

show cause on in camera inspection of victim’s records to determine if

challenged materials were protected by privilege or discoverable as material

produced in support of Commonwealth’s investigation) (citing, inter alia,

Simmons and Ritchie).

     Appellant admits in her brief that the trial court’s decision would be

supported by this Court’s decision in Simmons. (See Appellant’s Brief, at

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J-A30039-14


20).    However, the brief endeavors to distinguish both Simmons and

Carter.    (See id. at 21-22).   Appellant’s arguments are unsupported by

reference to any other pertinent authority.       (See id.).    Therefore, we

conclude they are waived. See Pa.R.A.P. 2119(a), (b). Furthermore, they

are unpersuasive.

       Appellant argues in the alternative that Simmons and Carter should

be overruled. (See Appellant’s Brief, at 22). This Court is of course bound

by existing precedent under the doctrine of stare decisis, and we continue to

review appeals before us in accordance with currently controlling precedent.

See Dixon v. GEICO, 1 A.3d 921, 925-26 (Pa. Super. 2010) (citing cases).

       Even though our Supreme Court decided Octave based on the Mental

Health Procedures Act, rather than section 5944, we conclude here, after

review, that the same underlying principles of narrowly construing privileges

(as in derogation of the search for truth), and the possibility of waiver apply

in this case as well. Appellant’s claim of privilege is waived and would not

merit relief.

       We emphasize for clarity that our decision responds exclusively to the

issues properly raised and argued before us in this collateral appeal.     We

decline to address any other issues. Furthermore, we express no position on

the merits, vel non, of the underlying prosecution, or on any other collateral

issues not specifically addressed here, and none should be inferred.

       Order affirmed. Case remanded. Jurisdiction relinquished.


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J-A30039-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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