114 A.3d 1098
Pa. Super. Ct.2015Background
- 2015 PA Superior Court case, Commonwealth v. T.J.W., involving alleged rape and related charges by a father against his daughter, with Appellant C.W. as the complainant (minor at time).
- Appellee T.J.W. is charged with rape by forcible compulsion, involuntary deviate sexual intercourse, and related acts; the complainant alleges occurrences from age four-and-a-half to seventeen.
- Trooper obtained records from multiple psychiatric/mental health providers after the State Police obtained releases; the records were sought for pre-trial use.
- December 5, 2013 stipulated order directed Appellant’s counsel to gather and redact mental health records, prepare a privilege log, and forward logs to the court and to the Commonwealth/T.J.W.; order was held in abeyance for appeal.
- April 1, 2014 order required Appellant’s counsel to produce redacted records and privilege logs for in camera review to determine privilege applicability; counsel appealed the order.
- Court held Appellant waived the privilege by agreeing to the December 2013 stipulation and delaying assertion of privilege, and upheld in camera inspection as appropriate to assess privilege under 42 Pa.C.S.A. § 5944.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of privilege under § 5944 | C.W. contends privilege is absolute and not waived. | Commonwealth argues waiver occurred via stipulated order and delayed assertion. | Privilege waived; order to produce records affirmed. |
| Authority for in camera review to determine privilege | Claim of privilege protects records from disclosure; in camera review unnecessary. | Trial court properly ordered in camera inspection to determine privilege applicability. | In camera inspection proper to determine whether privilege applies. |
| Scope and interpretation of § 5944 absolute privilege | § 5944 provides absolute privilege for confidential communications and records. | Privilege not absolute in all contexts; waivable and subject to competing interests. | § 5944 privilege not absolute here; waiver applies; not warranted relief. |
Key Cases Cited
- Commonwealth v. Simmons, 719 A.2d 336 (Pa. Super. 1998) (remand for in camera review of victim's records to determine privilege)
- Commonwealth v. Carter, 821 A.2d 601 (Pa. Super. 2003) (non-privileged opinions/observations from treating professionals; privilege focused on disclosures during treatment)
- Octave ex rel. Octave v. Walker, 103 A.3d 1255 (Pa. 2014) (principles of narrowly construing confidential privileges and waiver when directly at issue)
- Commonwealth v. Dowling, 883 A.2d 570 (Pa. 2005) (distinguishes direct appeal access to mental health records; facts distinguishable)
- Commonwealth v. Kyle, 533 A.2d 120 (Pa. Super. 1987) (recognizes privilege may be weighed and not always absolute)
- Commonwealth v. Counterman, 719 A.2d 284 (Pa. 1998) (statutory privilege not outweighed by defendant’s cross-examination rights)
- Berger, 96 A.3d 1049 (Pa. Super. 2014) (remand for in camera inspection to determine privilege status of victim's records)
- Ritchie v. Pennsylvania, 480 U.S. 39 (1987) (permits in camera review of confidential records to determine exculpatory content)