Commonwealth v. Berger
96 A.3d 1049
Pa. Super. Ct.2014Background
- Defendant Berger was charged with multiple sexual offenses against four minors; CRC conducted and videotaped interviews of each alleged victim.
- Berger filed six pretrial petitions seeking CRC interview notes/writings and asked the court to direct the Commonwealth to disclose them.
- Trial court ordered CRC to produce the requested records for in camera review; CRC appealed the collateral order.
- CRC contended it is a private medical provider and that medical/sexual-assault-counselor privileges bar disclosure; it also argued the court should appoint guardians ad litem and hold a privacy hearing.
- Record indicated police observed or relied on CRC interviews, and the Commonwealth possessed at least portions of CRC files (including videos), suggesting investigative use rather than pure treatment.
- The appellate court vacated the order and remanded for the trial court to issue a rule to show cause and develop the record about CRC’s role (private provider vs. agent of the Commonwealth) before any in camera review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to compel third‑party records | Berger: court may order nonparty records via subpoena power/in camera review | CRC: Rule 573/578 govern Commonwealth discovery only; court lacked authority over private third party | Court: trial court has subpoena power under statute and Pa.R.Crim.P.107 to order nonparties to produce records for in camera review |
| Status of CRC (Commonwealth agent vs. private provider) | Berger: CRC acted at Commonwealth’s behest; interviews were forensic and used by police | CRC: part of private Pinnacle Health and provided treatment; privilege applies | Court: record inconclusive; remand to develop facts and determine CRC’s role |
| Application of psychotherapist/rape‑counselor privilege | CRC: §§5944/5945.1 create absolute privilege protecting victim communications and files | Berger: materials were used in investigation and are in Commonwealth possession, so privilege may not apply | Court: privileges may bar disclosure if purely treatment communications; but if CRC acted investigatively or materials are in Commonwealth possession, privilege is not absolute — trial court must decide after record developed and, if needed, perform in camera review |
| Procedural protections for child privacy (guardian ad litem/hearing) | CRC: trial court should appoint guardians ad litem and hold hearing before ordering production | Berger: sought disclosure without such procedures | Court: remand allows trial court to appoint guardians ad litem and conduct necessary proceedings to protect privacy when developing the record |
Key Cases Cited
- Commonwealth v. Carillion, 380 Pa.Super. 458, 552 A.2d 279 (Pa. Super. 1988) (in camera review of third‑party child‑services file and limited disclosure consistent with Rule 573 and jurisprudence)
- Commonwealth v. Byuss, 372 Pa.Super. 395, 539 A.2d 852 (Pa. Super. 1988) (victim psychiatric/psychological records produced for in camera review)
- Commonwealth v. Miller, 406 Pa.Super. 206, 593 A.2d 1308 (Pa. Super. 1991) (trial court may compel nonparty rape‑crisis records under subpoena power for in camera review)
- Commonwealth v. Simmons, 719 A.2d 336 (Pa. Super. 1998) (psychotherapist privilege §5944 protects client communications; non‑communicative treatment records may be discoverable and warrant in camera review)
- Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (Pa. Super. 1987) (§5944 privilege explained; privilege serves public interest in promoting treatment)
- Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (Pa. 1992) (§5945.1 grants absolute privilege to sexual‑assault counseling communications)
- Pennsylvania v. Ritchie, 480 U.S. 39 (U.S. 1987) (child‑welfare agency files not absolutely privileged; in camera review protects confidentiality while allowing defendant access to exculpatory material)