Commonwealth v. Sanchez

JOHNSON, Judge,

dissenting:

I am unable to join with the conclusion of the majority that Luis Miguel Sanchez’ psychiatric records were properly admitted at trial and that his suicidal ideation could be used to infer his consciousness of guilt. In my view, the admission of his psychiatric records constitutes reversible error. Therefore, I dissent.

Our scope of review when determining whether evidence should have been admitted or excluded at trial is that we will not reverse the trial court on appeal absent a clear abuse of discretion. Commonwealth v. Wagner, 383 Pa.Super. 128 , 556 A.2d 462 (1989); Commonwealth v. Sweger, 351 Pa.Super. 188 , 505 A.2d 331 (1986), alloc. denied, 513 Pa. 634 , 520 A.2d 1385 (1987). However, when an error occurs in the admission or the exclusion of evidence, reversal is required unless the Commonwealth establishes beyond a reasonable doubt that the error was harmless. Commonwealth v. Lewis, 528 Pa. 440 , 598 A.2d 975 (1991); Commonwealth v. Story, 476 Pa. 391 , 383 A.2d 155 (1978).

Sanchez objects to the admission of his psychiatric records and the use of his suicidal ideation to infer consciousness of guilt on four different grounds: (1) evidence of Sanchez’ suicidal ideation is irrelevant and prejudicial (2) the records are privileged under the psychiatrist-patient privilege, 42 Pa.C.S. § 5944; (3) the records contain expert medical opinion which may not be admitted under the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108; and (4) the records are inadmissible under the Mental Health Procedures Act, 50 P.S. § 7111.

*183 First, Sanchez asserts that the evidence flowing from the admission of his psychiatric records to show his suicidal ideation or thoughts of suicide was irrelevant and prejudicial. I would find that any admission of these records into evidence constitutes reversible error. I, therefore, elect not to address whether the majority properly extended existing Pennsylvania law to permit mere thoughts of suicide to be used against an accused to infer his consciousness of guilt.

Second, Sanchez argues that the records from his stay in the jail psychiatric unit were privileged under 42 Pa.C.S. § 5944 and as such, were inadmissible to be used against him at trial. I agree.

42 Pa.C.S. § 5944 states:

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

This statute has been interpreted by our supreme court to constitute an absolute bar to the admission of testimony or records of a psychiatrist about a client. Commonwealth v. Wilson/Aultman, 529 Pa. 268 , 602 A.2d 1290 (1992). This Court also recently addressed the scope of 42 Pa.C.S. § 5944 and held that the statute afforded an absolute privilege under which information acquired by a psychiatrist or psychologist in the course of his professional services for a client was not subject to disclosure. Commonwealth v. Eck, 413 Pa.Super. 538 , 605 A.2d 1248 (1992). The statutory privilege also applies to records created in the course of the confidential relationship. Id., 413 Pa.Super. at 545 , 605 A.2d at 1252 . Further, statements made to *184 those persons participating in a client’s therapeutic regime have also been held to be confidential under 42 Pa.C.S. § 5944. Kalenevitch v. Finger, 407 Pa.Super. 431, 434-40 , 595 A.2d 1224, 1226-28 (1991). (Statements made to nurse as agent of licensed psychologist held privileged.)

The legislative purpose for the absolute bar to the disclosure of psychiatric records is to promote and facilitate treatment of mental disorders. In Commonwealth v. Kyle, 367 Pa.Super. 484 , 533 A.2d 120 (1987) alloc. denied, 518 Pa. 617 , 541 A.2d 744 (1988), this Court discussed the legislative intent in enacting 42 Pa.C.S. § 5944:

Patient confidence is essential for effective treatment. Because the information revealed by the patient is extremely personal, the threat of disclosure to outsiders may cause the patient to hesitate or even refrain from seeking treatment. The privilege thus serves the public interest in promoting a society in which the general well-being of the citizenry is protected.

* * * * * *

The privilege afforded by § 5944 was intended to inspire confidence in the client and encourage full disclosure to the psychologist. By preventing the latter 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.

The majority asserts two grounds for rejecting Sanchez’ assertion of privilege. First the majority holds that Sanchez failed to preserve this issue for review. I find from my review of the record that the statutory physician-patient privilege was properly asserted by Sanchez prior to introduction of the records at trial. N.T., July 27, 1990 at 6. Sanchez further asserted the physician-patient privilege in his post-trial motions which state in pertinent part:

To the extent that prior case law established the notion that the doctor-patient privilege applies only to civil cases, that should be overturned. The Commonwealth should never be permitted to use the oral confidences that an *185 incarcerated accused intimates to his treating physician in a treatment setting as substantive evidence against him. Appellant’s post-trial motions at 2-3.

Sanchez invoked the psychiatrist-patient privilege and articulated the public policy grounds which support it, in his post-trial motions. Moreover, rather than finding this issue waived, the trial court specifically interpreted Sanchez’ assertion in post-trial motions to include the psychiatrist-patient privilege as defined in 42 Pa.C.S. § 5944. Trial Court Opinion at 9. I find that while Sanchez fails to specify the statutory section under which the psychiatrist-patient privilege can be found, he has preserved the issue of privilege for our review.

The majority next finds that even if the psychiatrist-patient privilege had not been waived, it is inapplicable in criminal cases. This finding is contrary to the text of the statute itself which states that the privilege is applicable “in any civil or criminal matter”. 42 Pa.C.S. § 5944. In Commonwealth v. Kennedy, 413 Pa.Super. 95 , 604 A.2d 1036 (1992), we discussed whether the files of a sexual abuse victim could be disclosed to the defendant to aid in his defense, holding that the defendant had no constitutional right to gain access to the records, as the statute provides an absolute bar to disclosure. Id., 413 Pa.Super. at 115-116, 604 A.2d at 1047 .

Our previous holdings under 42 Pa.C.S. § 5944 have prevented a criminal defendant from obtaining access to a victim’s files to aid in his defense. See e.g. Commonwealth v. Kyle, 367 Pa.Super. 484 , 533 A.2d 120 (1987), alloc. denied, 518 Pa. 617 , 541 A.2d 744 (1988). However, since the statute provides an absolute bar to disclosure, it must follow that neither may a prosecutor be permitted access to the psychiatric files of a defendant to aid in his prosecution.

Two cases cited by the majority to support the proposition that there is no psychiatrist-patient privilege in criminal cases, Commonwealth v. Edwards, 318 Pa. 1 , 178 A. 20 (1935) and Commonwealth v. Sykes, 353 Pa. 392 , 45 A.2d 43 (1946) interpret the Act of June 7,1907, P.L. 462 (now 42 *186 Pa.C.S. § 5929) and do not apply in this case. These § 5929 cases indicate that the statute only provides a physician-patient privilege in civil cases. These cases, while correctly setting forth the law under 42 Pa.C.S. § 5929, do not apply to 42 Pa.C.S. § 5944, a statute yet to be enacted at the time of their writing. These statutes are different in their scope. § 5929 provides for a limited privilege that denies admission of physician-patient information that would tend to blacken the character of a party in a civil case. However, § 5944, the statute to be applied in this case, provides an absolute prohibition to the admission of evidence that flows from the psychiatrist-patient relationship regardless of the type of case being litigated.

The majority also cites Commonwealth v. Petrino, 332 Pa.Super. 13 , 480 A.2d 1160 (1984), cert. denied, 471 U.S. 1069 , 105 S.Ct. 2149 , 85 L.Ed.2d 505 (1984), in which this Court interpreted the physician-patient privilege to be found only in 42 Pa.C.S. § 5929 and not in 42 Pa.C.S. § 5944. In Petrino , this Court rearticulated that § 5929 applies only in civil cases. In 1989, however, § 5944 was amended to include psychiatrists as well as psychologists. Thus, Petrino remains an accurate statement only as to § 5929.

Finally, the majority relies on Commonwealth v. Moyer, 407 Pa.Super. 336 , 595 A.2d 1177 (1991), alloc. denied, 529 Pa. 656 , 604 A.2d 248 (1991), which cites to the above three cases as authority for the proposition that no “common law” physician-patient privilege applies in criminal cases. This lack of privilege between physicians and patients in criminal cases as cited by the majority, results not from a “common law” analysis of such privilege but rather from court interpretation of a specific statutory privilege under § 5929. These cited cases are not relevant in the present case. The information in Sanchez’ psychiatric records is barred from admission under 42 Pa.C.S. § 5944 not by 42 Pa.C.S. § 5929.

In his third argument, Sanchez objects to the fact that the trial court admitted his psychiatric records under the Uniform Business Records as Evidence Act. 42 Pa.C.S. § 6108. *187 Hospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms given. Commonwealth v. DiGiacomo, 463 Pa. 449 , 345 A.2d 605 (1975). If the psychiatric records were not privileged, perhaps they could be admitted to show that Sanchez did receive treatment at the the prison psychiatric unit. Brief for Appellant at 83. However, to admit the medical opinion contained in the records requires the doctor to be available for cross-examination. Id., 463 Pa. at 456 , 345 A.2d at 608 . See also Commonwealth v. Keeney, 367 Pa.Super. 16 , 532 A.2d 33 (1987).

Here, the diagnostic impressions or opinions of the admitting psychiatrist were read to the jury over Sanchez’ objection. The physician’s opinion stated:

At the time of admission he was sad, motor activity was decreased. Speech was slow and soft and he was withdrawn. Flow of thought was slow. Mood revealed anxiety and depression. There were suicidal thoughts and he felt guilty and worthless. He denied auditory hallucinations. Sensorium, intelligence] and insight were intact.

N.T., July 30, 1990 at 26.

The psychiatrist’s notes reflected his expert impressions as to the state of Sanchez’ psyche, rather than merely reciting the symptoms which Sanchez reported. These comments were improperly admitted; they constituted expert testimony upon which Sanchez could not cross-examine the expert witness. See DiGiacomo, supra; Commonwealth v. Hemingway, 369 Pa.Super. 112, 119 , 534 A.2d 1104, 1108 (1987); Morris v. Moss, 290 Pa.Super. 587, 593 , 435 A.2d 184, 187 (1981). Under our adversary system, cross-examination exposes any possible errors and omissions in the preparation of the report and tests the accuracy of the opinions upon which the report was based. Commonwealth v. Hemingway, 369 Pa.Super. at 119 , 534 A.2d at 1108 .

The purpose of the Uniform Business Records as Evidence Act is to permit the introduction of records that are *188 inherently reliable. This Court in Commonwealth v. Seville, 266 Pa.Super. 587 , 405 A.2d 1262 (1979) stated:

No such doubt as to reliability and accuracy are entertained when a record is offered merely to prove facts, such as the event of hospitalization, treatment prescribed, symptoms given or the existence of some readily ascertained substance or chemical within the body.

Medical records cease to be inherently reliable when they report the impressions of an individual that are not objectively ascertainable. See Commonwealth v. DiGiacomo, supra; Commonwealth v. McCloud, 457 Pa. 310 , 322 A.2d 653 (1974); In re Involuntary Termination of Parental Rights, 449 Pa. 543 , 297 A.2d 117 (1972). As such, the trial court erred when it permitted the jury to hear the psychiatrist’s comments written in Sanchez’ medical record. The admission of medical opinion evidence presented in this case and used by the prosecution to evidence Sanchez’ consciousness of guilt constitutes reversible error. The judgment in this case cannot be permitted to stand.

Fourth, Sanchez claims that his psychiatric records should have been excluded under the Mental Health Procedures Act, 50 P.S. § 7111. The majority finds that this claim is waived by Sanchez’ failure to specifically assert this ground in post-trial motions. Even though this issue is not stated with particularity in post-trial motions, I would find the issue to be sufficiently preserved for review. Sanchez objected at trial to the admission of the records. The trial court understood that Sanchez was objecting to the admission of his medical records and their use as evidence of his suicidal ideation. Moreover, the trial court granted him a continuing objection during the introduction of the records at trial. N.T., July 30, 1990 at 20. While the language used in post-trial motions was inartful, it sufficed to inform the trial court that the Mental Health Procedures Act was at issue in the case. The trial court proceeded to address this issue substantively in its opinion. See Trial Court Opinion at 9-10. See Commonwealth v. Metz, 412 Pa.Super. 100, 104, n. 1 , 602 A.2d 1328, 1330, n. 1 (1992).

*189 In Kurtas v. Kurtas, 521 Pa. 105 , 555 A.2d 804 (1989), our supreme court addressed whether our Court should consider an issue waived, due to a procedural error, when the trial court chose to address an issue on the merits. The court in Kurtas stated:

We are cognizant that at times the rigid application of our rules does not serve the intended purpose of justice and fairness but rather results in a harsh or even unjust consequence. For this reason, we promulgated Pa.R.C.P. 126 wherein we granted to the trial court latitude to overlook any procedural defect which does not prejudice the rights of a party. These procedural rules are not jurisdictional limitations and the failure to comply with such rules does not divest the trial court of such jurisdiction. By allowing a trial court to overlook a procedural defect does not in any way in and of itself alter the jurisdiction of that court.

Id., 521 Pa. at 109 , 555 A.2d at 806 .

In Kurtas , our supreme court reversed a case in which this Court had stated that the issues were waived for failure to file timely post-trial motions. The supreme court found that when the trial court had addressed the issues raised in the untimely motions on the merits, this Court could not thereafter treat those issues as waived. Id., 521 Pa. at 109 , 555 A.2d at 806 .

I would apply the reasoning in Kurtas to the present facts. Here, Sanchez made general allegations of error at trial and in post-trial motions based on the privileged nature of his psychiatric files. Since the trial court chose to address this issue, and its consideration merely adds another ground for reversal on a previously decided issue, there is no prejudice. Therefore, I will address this issue on the merits.

The Mental Health Procedures Act (MHPA), Act of July 9, 1976, P.L. 817, No. 143, § 111, 50 P.S. § 7111 states:

All documents concerning persons in treatment shall be kept confidential and, without the person’s written con *190 sent, may not be released or their contents disclosed to anyone except:

(1) those engaged in providing treatment for the person;

(2) the county administrator pursuant to § 110;

(3) a court in the course of legal proceedings authorized by this act; and

(4) pursuant to Federal Rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.

In no event, however shall privileged communications, whether written or oral, be disclosed to anyone without such written consent. This shall not restrict the collection and analysis of clinical or statistical data by the county administrator or the facility so long as the use and dissemination of such data does not identify individual patients. Nothing herein shall be construed to conflict with section 8 of the act of April 14, 1972 (P.L. 221, No. 63), known as the “Pennsylvania Drug and Alcohol Abuse Control Act.”

In the present case, Sanchez’ records were obtained pursuant to a subpoena by the district attorney. There is no exception in the MHPA under which Sanchez’ records may be obtained without his consent. The Mental Health Procedures Act is to be strictly construed. Commonwealth v. Blaker, 293 Pa.Super. 391 , 446 A.2d 976 (1981). The MHPA provides on its face that no psychiatric records may be revealed without the express written consent of the patient, except under limited circumstances. In Commonwealth v. Moyer, 407 Pa.Super. 336 , 595 A.2d 1177 (1991), alloc. denied, 529 Pa. 656 , 604 A.2d 248 , discussing the MHPA and its application in criminal cases, we held that a patient’s inpatient mental health records may be used by a court only when the legal proceedings are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings. Id., 407 Pa.Superior Ct. at 341, 595 A.2d at 1179. In Moyer , a criminal defendant’s psychiatric records revealing evidence of his *191 suicidal ideation, depression, and his thoughts about the crime, were read to the jury. Id., 407 Pa.Superior Ct. at 338, 595 A.2d at 1178. In Moyer , this Court found such an error grounds for reversal of the sentence and the grant of a new trial. Id., 407 Pa.Superior Ct. at 342, 595 A.2d at 1180.

In the present case, Sanchez’ psychiatric records were read to the jury absent defense permission and over defense objection. In my view, the admission of this evidence is in clear violation of the MHPA. I would reverse the judgment of sentence and grant a new trial.

I would find that the trial court erred in the admission of Sanchez’ medical records into evidence on three grounds. First, the admission of the record violated the psychiatrist-patient privilege articulated in 42 Pa.C.S. § 5944. Second, the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108, does not apply to the medical opinion contained in Sanchez’ hospital records and renders it inadmissible. Third, since Sanchez did not consent to the use of the records, they must be excluded under the Mental Health Procedures Act, 50 P.S. § 7111. Accordingly, for the foregoing reasons, I would reverse the judgment of sentence and grant a new trial. Therefore, I respectfully dissent.