Commonwealth v. Pukowsky, 147 A.3d 1229

Victim L.P., Appellant Myron Pukowsky’s daughter, reported sexual touching that allegedly occurred when she was ~5 (2007); initial disclosure made to neighbor Beth Fisher and later discussed with mother A.B. and psychotherapist Laura Weissflog.
No charges followed in 2007; years later (2013) draft apology letters Pukowsky wrote for L.P. (prepared while in therapy with Dr. John Gentry) were found in the family home and produced to police.
Pukowsky was charged with multiple counts including aggravated indecent assault, indecent assault of a child under 13, unlawful contact with a minor, endangering the welfare of a child, and corruption of minors.
Pretrial, Pukowsky moved for a competency hearing to bar L.P.’s testimony as tainted by adult questioning, and moved to suppress the apology letters as psychotherapist-patient privileged. The trial court denied both motions and limited portions of Dr. Gentry’s testimony during trial.
Jury convicted Pukowsky on several counts; he appealed. The Superior Court affirmed, holding (1) trial court did not abuse discretion in finding L.P. competent, (2) the letters were not protected by the psychologist-patient privilege, and (3) the claim about limiting Dr. Gentry’s testimony was waived for insufficient specificity in the Pa.R.A.P. 1925(b) statement.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Pukowsky)	Held
Competency of child witness L.P.	L.P.’s testimony was reliable; trial court’s competency inquiry sufficient.	L.P.’s memory was tainted by mother, neighbor, and Weissflog’s suggestive questioning, rendering her incompetent.	Trial court did not abuse discretion; L.P. competent and testimony not tainted.
Admissibility of apology letters	Letters were not confidential communications to psychotherapist and thus admissible.	Letters were prepared in therapy and protected by psychologist-patient privilege.	Letters were intended for the child, not confidential communications to the therapist; privilege did not apply.
Limitation of Dr. Gentry’s testimony	Any evidentiary rulings were within court’s discretion; issues not pleaded with specificity.	Trial court improperly limited Dr. Gentry’s factual (non-expert) testimony, prejudicing defense.	Claim waived: 1925(b) statement too vague to preserve the issue.

Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super. 2007) (abuse-of-discretion standard for evidentiary rulings)
Commonwealth v. Busanet, 817 A.2d 1060 (Pa. 2002) (definition of abuse of discretion)
Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. 2002) (competency of child witness standard)
Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009) (requirement of competency inquiry for witnesses under 14)
Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) (focus on independent memory when taint alleged)
Gormley v. Edgar, 995 A.2d 1197 (Pa. Super. 2010) (psychologist-patient privilege applies to confidential communications made in course of treatment)
Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009) (privilege does not extend to documents that lack patient communications)
In re T.B., 75 A.3d 485 (Pa. Super. 2013) (evaluate purpose and circumstances of declarant’s statements for privilege analysis)
Commonwealth v. Smith, 606 A.2d 939 (Pa. Super. 1992) (privilege bars treating psychologist testimony and certain records)
Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006) (1925(b) statements that are too vague result in waiver)