Commonwealth v. Carter

ORIE MELVIN, J.,

Concurring and Dissenting.

¶ 1 I agree wholeheartedly with the majority’s finding that the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, was not violated by disclosure of records gathered during Appellant’s juvenile detention. I agree that these records were properly admitted in assessing whether Appellant is a “sexually violent predator.” However, as to the issue of whether the psychiatrist/patient privilege, 42 Pa.C.S.A. § 5944, is violated by disclosure of such information, I disagree with the majority’s finding that a remand is necessary in this particular case. Accordingly, I must dissent in that respect.

¶ 2 As noted by the majority in its recitation of the facts, the defense was supplied with all of the documents relied on by *610 the Board in making its assessment prior to the hearing in response to Appellant’s motion to compel disclosure of documents. In fact, the Commonwealth submitted a list of 35 documents that had been available to the investigator. The list included such documents as court orders, police criminal complaints, York County Children and Youth case notes and psychiatric evaluations of Appellant on various dates. Appellant appeared at the hearing with counsel, and counsel had an opportunity to investigate the sources of the reports, cross-examine the Commonwealth’s witness and call any defense witnesses it deemed helpful. However, the only witness that testified was Gregory A. Loop, a member of the Assessment Board. Mr. Loop testified as to his opinion, and his written evaluation was admitted into evidence.

¶ 3 Appellant makes the bald allegation in his post-sentence motion that the sentencing court erred in permitting Mr. Loop to rely on psychiatric examinations completed while Appellant was. involved with the juvenile justice system and on evaluations which were completed for treatment purposes. Yet, the defense fails to identify for us or elaborate on what those statements were or under exactly what circumstances they were taken. I agree with the majority 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. However, I disagree that it is this Court’s duty to determine whether any of the disclosures made by Appellant to psychiatrists during his juvenile detention are privileged without the Appellant first defining exactly which communications, and to exactly who and when, must be reviewed.

¶ 4 Troublesome to the majority are the references made in discharge summaries in which Appellant admitted that he had sexually molested nearly thirty children, ranging from ages three to ten, and that he threatened his victims and physically abused them on occasion. Upon careful review of the record, it áppears that defense counsel made no objections whatsoever during Mr. Loop’s testimony to what he now argues is objectionable as violating the psychiatrist/patient privilege. Although the trial court declared that Appellant’s objection to the assembly of the information was preserved, Appellant never developed this argument before the trial court. In fact, Appellant’s' 1925(b) statement never mentions the psychiatrisVpa-tient privilege. Moreover, I fail to see where in the record Appellant laid a proper foundation for such an objection to confidential communications, when he never specified exactly what privileged information was objectionable. Had defense counsel done his job in identifying what communications were privileged, there would be no reason for a remand. While I recognize that the burden of proof remains with the Commonwealth, Appellant must still specifically object to any evidence he believes is inadmissible and present the trial court with his developed arguments. Because the defense failed to do this, I would find his complaints on appeal concerning the admission of this evidence are waived. I must, therefore, respectfully dissent from the majority’s decision to remand.