Com. v. Newcomb, J.

J-S12019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JASON DALE NEWCOMB :

:

Appellant : No. 798 MDA 2022

Appeal from the Judgment of Sentence Entered April 1, 2022

In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP-36-CR-0001871-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JASON DALE NEWCOMB :

:

Appellant : No. 799 MDA 2022

Appeal from the Judgment of Sentence Entered April 1, 2022

In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP-36-CR-0001451-2020

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 21, 2023

Jason Dale Newcomb (Appellant) appeals from his jury trial convictions

for a series of rapes and other sexual crimes committed against his biological

daughter, J.N. Appellant contends (1) that the trial court erred in allowing

two witnesses to testify to statements made by J.N. implicating Appellant; (2)

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* Retired Senior Judge assigned to the Superior Court.

J-S12019-23

that the trial court erred in denying his request for production of privileged

material by J.N.’s psychotherapist; and (3) that the trial court illegally imposed

“no contact” provisions as part of his sentence. The Commonwealth concedes

the third issue. We agree and strike that aspect of Appellant’s sentence. In

all other respects, we affirm.

The victim, J.N., is the biological daughter of Appellant and turned 18

the weekend before trial. She informed the jury that Appellant began fondling

her vagina and inserting his fingers when she was 7, usually when the two

were on the couch watching television. Around age 8 or 9, Appellant told J.N.

to come to the living room and forced her to watch pornography, telling J.N.

that “because the woman in the video was liking it that I should.” N.T.,

11/16/23, at 186. J.N. stated that when she was about 9 years old, Appellant

forced her to engage in oral and vaginal sex. Appellant would fondle her “at

least once a week,” but “[h]e couldn’t really get me alone to rape me unless

my mom was at work or she was just gone in general.” Id. at 192. When

J.N. started fifth grade, her mother started working more hours and Appellant

raped her two to three times a week. J.N. also testified that Appellant forced

her to undress and took nude photographs. The abuse ended in 2016 when

Appellant and J.N.’s mother separated.

J.N. began experiencing anxiety and depression, and her schoolwork

suffered. A school employee referred her to Olivia Houston, a prevention

specialist employed by J.N.’s school. Houston noticed that J.N. exhibited poor

hygiene, showed signs of depression, and was uncomfortable around males.

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Houston arranged a meeting with the Child Guidance Resource Center. J.N.’s

mother escorted J.N. to the appointment. During the intake process, an

employee asked J.N. if she had been sexually abused. J.N. said yes, which

marked the first time she had disclosed the abuse. J.N.’s mother, who had

accompanied her to the appointment, was not in the room during the intake

process.

J.N.’s disclosure triggered mandatory reporting obligations to ChildLine,

the Commonwealth’s Department of Human Services program for child abuse

investigations. The matter ultimately made its way to Detective Aaron

Harnish, employed by the Lancaster City Bureau of Police, who arranged a

forensic interview at Children’s Alliance on March 8, 2018, between J.N. and

James Pennebaker.1 Detective Harnish observed the interview and

characterized J.N. as being “extremely uncomfortable talking about what

[Appellant] did to her.” N.T., 11/18/21, at 476. He, J.N., and J.N.’s mother

decided that further therapy would be appropriate.

J.N. then sat for a second forensic interview with Karen Melton on April

19, 2018. Melton testified that she did not watch the Pennebaker interview

prior to her interview with J.N., explaining that “we don’t want to do what’s

called duplicative interviews.” N.T., 11/17/21, at 372. Melton used an

anatomical diagram for J.N. to point to due to her continuing difficulty with

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1 Pennebaker was no longer employed by Children’s Alliance by the time of

trial and did not testify. Another witness identified the date of this interview

as March 13, 2018.

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saying certain words. During Melton’s testimony, the interview with

Pennebaker was played to the jury. Melton agreed that J.N. was “having

difficulty vocalizing what was happening to her” and that Pennebaker had J.N.

write things on paper. A copy of a paper was read to the jury through Melton;

J.N. wrote that she “was about 7 and I didn’t understand what was going on

but he threatened me and said he’d hurt me if I told anybody.” Id. at 367.

J.N. also wrote, “He would touch me inappropriately when my mom wasn’t

around.” Id. at 368. She further wrote that Appellant “started raping me

when I was about [ten or 11 years old].” Id.

Following these interviews, the investigators decided that J.N. “still

wasn’t as comfortable as what would be required to go into court” in terms of

discussing Appellant’s abuse and decided in August of 2018 to designate the

case inactive pending further therapy. N.T., 11/18/21, at 480.

J.N. began treatment with Jessica Ventura, a psychotherapist, in August

of 2019, who had nine sessions with J.N., occurring approximately once a

week through January 10, 2020. During those sessions, J.N. “had significant

difficulty verbalizing her experiences of abuse.” N.T., 11/18/21, at 388.

Ventura had J.N. write down her experiences and then would discuss whatever

J.N. wrote, “depend[ing] on how she was feeling.” Id. at 389. Ventura

identified multiple “trigger words . . . that she was incapable of saying or

writing[.]” Id. at 392. Those “trigger words were breast, penis, vagina, rape,

oral, and intercourse.” Id. Ventura discussed substitution words, which were

“boobs, titties, dick, pee pee, thingy, cooch, coochie, force, tears, vomit,

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disgust, gross, texture, bad, inappropriate, danger, discomfort, and doing it.”

Id. Ventura testified to various specific incidents of abuse that J.N. wrote

down and discussed during these sessions.

On January 2, 2020, Appellant was charged with 13 counts, later

reduced to 11 in the criminal information filed at docket CP-36-CR-0001451-

2020.2 Later, Appellant was charged with four crimes following the execution

of a search warrant on a laptop owned by Appellant. A digital search revealed

278 images of child pornography and internet searches for, among other

terms, “father/daughter incest.” Id. at 435. 48 of these photographs showed

J.N. in the shower. Appellant was then charged at docket CP-36-CR-0001871-

2020 with four crimes.3 Both dockets were tried together, and Appellant was

found guilty of all charges. Appellant was sentenced on April 1, 2022, to an

aggregate term of 30 to 80 years’ incarceration and he timely appealed to this

Court.4

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2 Appellant was charged with two counts each of rape of a child, 18 Pa.C.S. §

3121(c); aggravated indecent assault, 18 Pa.C.S. § 3125(b); indecent assault

of a child under 13 years of age, 18 Pa.C.S § 3126(a)(7); and corruption of

minors, 18 Pa.C.S. § 6301(a)(1), (i). He was convicted of one count of each

of the following: incest, 18 Pa.C.S. § 4302; involuntary deviate sexual

intercourse, 18 Pa.C.S. § 3123(b); and dissemination of sexual material

involving a child, 18 Pa.C.S. § 5903(c)(1).

3 At this docket, Appellant was charged with two counts each of manufacturing

child pornography, 18 Pa.C.S. § 6312(b), and possession of child

pornography, 18 Pa.C.S. § 6312(d)(1).

4On August 11, 2022, Appellant filed a motion to consolidate the appeals,

which we granted on August 16, 2022.

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Appellant complied with the trial court’s order to file a concise statement

of matters complained of on appeal, and the court authored an opinion

addressing Appellant’s claims. Appellant raises the following issues on appeal.

I. Did the trial court err in ruling that the testimony of Jessica

Ventura was admissible pursuant to 42 Pa.C.S. § 5985.1, where

her testimony did not satisfy the requirements of Section 5985.1,

and did the court further err in ruling that defense counsel was

not entitled to receive records regarding Ms. Ventura’s treatment

of J.N.?

II. Did the trial court err in ruling that the testimony of Karen

Melton, and the videotape of Ms. Melton’s April 19, 2018[,]

interview with J.N. was admissible pursuant to 42 Pa.C.S. §

5985.1, where her testimony did not satisfy the requirements of

Section 5985.1?

III. Did the trial court err in imposing a condition of no contact

with the victim or the victim’s family, where the court had no

jurisdiction to impose this condition, as the Pennsylvania

Department of Corrections has exclusive authority over state

prison conditions, and the Pennsylvania Department of Probation

and Parole has exclusive authority over state parole conditions?

Appellant’s Brief at 8-9.

Appellant’s first and second issues both challenge the admissibility of

hearsay evidence introduced pursuant to the Tender Years Hearsay Act

(TYHA). See 42 Pa.C.S. § 5985.1. The two arguments in support are largely

identical, and the trial court addressed them together. However, Appellant’s

first issue includes a subclaim regarding the disclosure of J.N.’s mental health

records. We address the TYHA issues together for ease of discussion, and

separately address Appellant’s claim that he was entitled to J.N.’s mental

health records.

The TYHA sets forth the following requirements.

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(a) General rule.--

(1) An out-of-court statement made by a child victim or witness,

who at the time the statement was made was 16 years of age or

younger, describing any of the offenses enumerated in paragraph

(2), not otherwise admissible by statute or rule of evidence, is

admissible in evidence in any criminal or civil proceeding if:

(i) the court finds, in an in camera hearing, that the

evidence is relevant and that the time, content and

circumstances of the statement provide sufficient indicia of

reliability; and

(ii) the child either:

(A) testifies at the proceeding; or

(B) is unavailable as a witness.

42 Pa.C.S. § 5985.1.

The trial court held a pre-trial hearing on the admissibility of these

statements. Ventura testified that J.N. was referred to her and knew that the

referral involved sexual abuse by Appellant. However, Ventura did not know

any specific facts prior to meeting J.N. She explained that she does not have

any set interview technique, as her approach “is different for each client based

on their needs. For [J.N.] specifically[, Ventura] used a person-centered

approach with the focus on the connection between emotions, thoughts, and

feelings.” N.T., 11/15/21, at 68-69. To process J.N.’s trauma she “used

narrative exposure therapy. Through this we used writing where she would

start with using her earliest memories of trauma and working up from there

and documenting them.” Id. at 69. Ventura chose to use writing because

“[J.N.] had a very difficult time self-reporting through her own words what

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had happened. She struggled to say specific sexual acts, [and] sexual parts

of the body that were involved in these traumas[.]” Id.

Ventura did not tell J.N. what to write, and she did not lead J.N. in any

way. What J.N. chose to write “came strictly from her.” Id. at 71. J.N.

disclosed five specific memories. Her first memory dated to age 6 or 7, when

Appellant told her to take off her pants and groped her thighs. At age 7,

Appellant “sat her down and forced her to view a video of two people doing

anal and oral sex.” Id. J.N. also told Ventura that Appellant forcibly

penetrated her when she was in fourth grade, and she recalled in fifth grade

that Appellant, while driving with J.N., pulled into an isolated area, forced her

to undress, and took pictures of her. Finally, when she was 12 years old, J.N.

recalled that Appellant forced her to undress and pinned her against

Appellant’s bed. As he tried to rape her, J.N. fought back, kicking Appellant

and telling him to leave her alone.

Turning to the admissibility of statements to Karen Melton, the

Commonwealth called Mary Halye, the manager of Children’s Alliance, as

Melton was sick and unavailable to testify at the pre-trial hearing. Halye

explained the general process that the facility used, which “follow[s] the

National Children’s Advocacy Center Protocol.” N.T., 11/16/21, at 101.

Interviewers do not use suggestive or leading questions, as the goal is for the

child “to provide a free narrative in their own words, in their own way.” Id.

at 101-02. The interviewers “typically know minimal information about the

child and the reason they are coming,” and they are generally not aware of

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the specific allegations. Id. at 103. The Commonwealth played the forensic

interview between Pennebaker and J.N., with Halye characterizing J.N. as

having a difficult time verbalizing what had happened. J.N. wrote during this

interview that “my dad sexually abused me. I was about [seven years old]

and I didn’t understand what was going on[.]” Id. at 110. The

Commonwealth then played the interview between Melton and J.N.

The trial court determined that the statements to Ventura and Melton

were admissible under the TYHA.5 On appeal, Appellant primarily challenges

the spontaneity of J.N.’s disclosures. Citing a dictionary definition of

“spontaneous” to mean “coming or resulting from a natural impulse or

tendency; without effort or premeditation; natural and unconstrained;

unplanned,” Appellant argues that her statements were not spontaneous as

“[a] primary purpose of J.N.’s therapy with Ms. Ventura was so that she could

talk about the sexual abuse[.]” Appellant’s Brief at 28. Similarly, J.N. knew

the purpose of her interview with Melton. Appellant additionally suggests that

J.N. had a motive to fabricate the allegations, “as she was clearly angry with

her father for abandoning the family,” and “her terminology was not

unexpected . . . as she was 15 or 16 years old” when she gave the statements.

Id.

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5 Appellant did not object to the admission of Pennebaker’s interview.

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Beginning with spontaneity, Appellant’s implicit argument appears to be

that the forensic interview setting precludes spontaneous disclosures because

the interviewers anticipate that the child may disclose incidents of abuse.

“We will not reverse the trial court’s decision to admit evidence pursuant

to the tender years statute absent an abuse of discretion.” Commonwealth

v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006). Section 5985.1(a)(1)(i) of

the TYHA sets forth two conditions: the statement must be (1) relevant and

(2) bear sufficient indicia of reliability with respect to the “time, content and

circumstances” of the statement. There is no dispute that the evidence is

relevant. Thus, the focus is on the indicia of reliability.

Our Supreme Court has followed United States Supreme Court caselaw

on this issue. In Idaho v. Wright, 497 U.S. 805 (1990), the High Court

addressed whether a defendant’s confrontation rights were violated when the

trial court admitted hearsay statements made by a child, who did not testify

at trial, to a pediatrician who conducted a sexual examination. Wright applied

a slightly modified version of the framework developed in Ohio v. Roberts,

448 U.S. 56 (1980) (abrogated by Crawford v. Washington, 541 U.S. 36

(2004)),6 to ascertain whether a child’s disclosure was trustworthy. The Court

held that “the ‘particularized guarantees of trustworthiness’ required for

admission under the Confrontation Clause must likewise be drawn from the

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6 Wright and Crawford address witnesses who were not subject to cross-

examination at trial, whereas J.N. testified. Appellant’s argument is limited to

the TYHA.

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totality of circumstances that surround the making of the statement and that

render the declarant particularly worthy of belief.” Id. at 820.

In Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003), our

Supreme Court, citing Wright, stated that for admissibility under the TYHA,

“the most obvious factors to be considered include the spontaneity of the

statements, consistency in repetition, the mental state of the declarant, use

of terms unexpected in children of that age and the lack of a motive to

fabricate.” Id. at 47. In Commonwealth v. Walter, 93 A.3d 442 (Pa. 2014),

our Supreme Court stated that the reliability assessment does not include

whether there is a “lack of physical evidence or possible alternative

explanations for the victim’s physical complaints,” as those “are irrelevant to

a determination of whether the time, content, and circumstances of the

victim’s statements . . . provided sufficient indicia of reliability so as to be

admissible under the TYHA.” Id. at 456. “The focus is on the truthfulness of

the statements,” which is assessed by reference to the factors discussed in

Wright. Id. at 453.

Appellant argues for a meaning of “spontaneity” that is more akin to the

excited utterance hearsay exception. Commonwealth v. Upshur, 764 A.2d

69, 75 (Pa. Super. 2000) (defining an excited utterance as a “spontaneous

declaration . . . made so near the occurrence both in time and place as to

exclude the likelihood of its being emanated in whole or in part from his

reflective faculties.”) (citations omitted). Appellant asserts that J.N. had time

to engage her “reflective faculties” due to the time between her initial

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disclosures and her interviews with Ventura and Melton, and her knowledge

that the interviewers wished to talk about her allegations. For purposes of

the TYHA, spontaneity is typically discussed in the sense of not being asked a

suggestive or leading question, as demonstrated by Commonwealth v.

Strafford, 194 A.3d 168 (Pa. Super. 2018). In that case, we adopted the

trial court’s opinion addressing the admissibility of statements under the

TYHA. The appellant argued that the statements made to a forensic

interviewer in his case, who was trained through the same National Children’s

Advocacy Center model used by Melton, were unreliable. The trial court cited

the open-ended interview process, and that the victim spontaneously began

talking about the appellant during the interview. The trial court determined

that the statements were spontaneous because the interviewer used a

nonsuggestive technique, and the interview was conducted in a neutral

manner based on her training. We conclude that the same logic applies here.

See also Commonwealth v. Moore, 755 EDA 2020 (unpub. memo.) (Pa.

Super. June 30, 2021) (concluding that statements made to forensic

interviewer were spontaneous); Commonwealth v. Kaminsky, 631 EDA

2019 (unpub. memo. at 6) (Pa. Super. April 13, 2020) (concluding that

statement given to forensic interviewer qualified as spontaneous; “The child

victim’s initial statements arose spontaneously in play, and were most

comprehensively explored in a forensic interview with a trained interviewer

who knows how to facilitate spontaneous statements from young witnesses

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and victims without using leading questions or introducing concepts outside

of the child’s ken.”).7

We also note that other jurisdictions discussing the Wright factors in

response to similar arguments have found statements to forensic interviewers

to be spontaneous provided that the questions are not leading. Taylor v.

State, 841 N.E.2d 631, 637 (Ind. Ct. App. 2006) (concluding that statement

to forensic interviewer were admissible as the interviewer “did not ask [the

victim] leading questions”); Bishop v. State, 982 So. 2d 371, 375 (Miss.

2008) (concluding that victim’s statements to therapist were admissible as

“the trial court found ‘nothing to indicate that the child’s statements were

suggested or solicited by [the therapist], that many of them were spontaneous

narratives and that they were obtained for medical and psychological

treatment.”). Indeed, the Wright Court indicated that procedural safeguards,

such as recording the interview and avoiding leading questions, may enhance

the reliability of statements. Wright, 497 U.S. at 818 (stating that “the

procedural guidelines propounded by the court below may well enhance

reliability of out-of-court statements of children regarding sexual abuse”).

Additionally, Appellant’s focus on the alleged lack of spontaneity

overlooks that, “[p]ursuant to the Tender Years Hearsay Act, a trial court must

consider the totality of the circumstances when determining whether a child’s

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7 We may rely on unpublished decisions filed after May 1, 2019, for their

persuasive value. See Pa.R.A.P. 126(b).

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out-of-court statement is trustworthy.” Interest of D.C., 263 A.3d 326, 335

(Pa. Super. 2021) (citation omitted). Thus, spontaneity is simply one factor.

Fidler v. Cunningham-Small, 871 A.2d 231, 235 (Pa. Super. 2005) (“There

are several factors a court may consider in determining reliability . . .

including, but not limited to, the spontaneity and consistent repetition of the

statement(s); the mental state of the declarant; the use of terminology

unexpected of a child of similar age; and the lack of a motive to fabricate.”)

(quotation marks and citation omitted; bracketing in original). “[T]he unifying

principle is that these factors relate to whether the child declarant was

particularly likely to be telling the truth when the statement was made.”

Wright, 497 U.S. at 822.

In light of the foregoing, we find no abuse of discretion in the trial court’s

determination that the statements were spontaneous. J.N.’s initial disclosure

was spontaneous as she indicated to the employee processing her intake form

that she had been sexually abused. J.N.’s mother took her to that

appointment but was not in the room for that disclosure. The subsequent

statements to Ventura and Melton were spontaneous as both interviewers

testified that the questions were open ended and not suggestive. See Trial

Court Opinion, 8/17/22, at 7 (“The statements to each of the individuals were

spontaneous as the minor victim led the discussions and the minor victim was

not led or directed by any of the witnesses.”).

Moving beyond spontaneity, Appellant argues that the statements to

Ventura revealed specific instances of abuse that differed from those disclosed

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to others. Appellant also avers that some of the statements in the Melton

interview are inconsistent with the Pennebaker interview; specifically, that in

one interview “J.N. stated she never saw the photos [Appellant] took of her,

but in the other interview she stated he did show her the photos.” Appellant’s

Brief at 34.

With respect to the Melton and Pennebaker interviews, we note that

those interviews were played to the court but not transcribed. Beyond the

minor discrepancy above, Appellant does not suggest that the statements

were so markedly different as to be truly inconsistent. As to the Ventura

statements, Appellant does not specifically address what portions were

inconsistent, instead relying on a vague claim that the statements differed

from other statements. In any event, the court credited that some

discrepancies existed, as its opinion noted “J.N.’s distress in discussing the

abuse” in connection with its conclusion that the statements demonstrated

“consistency . . . to the degree that there was no indication of a motive to lie.”

Trial Ct. Op., 8/17/22, at 7 n.22. The trial court therefore found that any

discrepancies were immaterial when measured against the overall consistency

of her allegations. We discern no abuse of discretion in that judgment.

Finally, while we agree that J.N. used several terms appropriate for her

age, Ventura testified that J.N. had difficulty using certain terms and Ventura

prepared a list of substitute words. Again, the Melton and Pennebaker

interviews were not transcribed, but the trial court states, “J.N.’s difficulty

verbalizing observed in the video recorded interviews was consistent with the

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difficulty Ms. Ventura testified to . . . bolstering the court’s conclusions that

the statements were genuine[.]” Id.

Overall, the minor issues identified by Appellant do not discredit the trial

court’s assessment that J.N.’s statements to Ventura and Melton were

sufficiently trustworthy and that J.N. was likely to be telling the truth. We

therefore find that the trial court properly admitted J.N.’s statements to

Ventura and the introduction of the Melton video.

We now turn to the additional subclaim in Appellant’s first issue, that

the trial court erred by failing to compel Ventura to turn over her complete file

concerning J.N.’s sessions.

During argument on the admissibility of Ventura’s statements, Appellant

stated his belief that he “would be entitled to [the] full contents of Ms.

Ventura’s file regarding all of the conversations that she’s had with [J.N.].”

Id. at 87. Recognizing that the material was privileged, Appellant argued that

the Commonwealth broke the privilege by calling Ventura to testify. The trial

court disagreed, stating that the privilege was for J.N. to assert or waive.

Appellant countered that privilege “can’t be broken selectively.” Id. at 88.

On appeal, Appellant faults the trial court failing to cite precedent in its ruling,

stating: “The court held that J.N. could selectively waive the psychologist-

patient privilege . . . but it cited no law supporting its finding that a partial

waiver was permitted.” Appellant’s Brief at 29. Appellant argues that

Commonwealth v. T.J.W., 114 A.3d 1098 (Pa. Super. 2015), is favorable to

his position as the Court there held that privilege concerning mental health

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records can be waived when the individual places confidential information at

issue.

In Commonwealth v. Segarra, 228 A.3d 943 (Pa. Super. 2020),

Segarra was charged with raping D.G., and while preparing for trial the

Commonwealth subpoenaed non-privileged medical records from the

Horsham Clinic, where D.G. had received mental health treatment. The clinic

disclosed all records, including privileged material, which the Commonwealth

did not review and sent back to the clinic. Segarra filed a motion to compel

discovery of D.G.’s mental health records, and D.G.’s attorney appeared on

her behalf. The trial court “agreed that D.G.’s mental health records are

privileged under the Mental Health and Procedures Act (MHPA) . . . and

expressed concern that Segarra was on a ‘fishing expedition to find

inconsistent statements.’” Id. at 947 (citation omitted). Nevertheless, the

court concluded that “because the Horsham Clinic had already disclosed the

records, they were no longer subject to the same level of protection.” Id. We

first concluded that the materials were protected by the MHPA and that none

of the statutory exceptions to disclosure applied. Turning to whether privilege

was waived, we concluded:

“As a general matter, once it is established that records are

privileged from disclosure to third parties, the burden shifts to the

party seeking disclosure to establish that an exception to the

privilege exists which would allow the disclosure.” In re Fortieth

Statewide Investigating Grand Jury, 220 A.3d [558,] 568

[(Pa. 2019)] (citation omitted). Thus, the burden rests with

Segarra to demonstrate that D.G. waived the privilege conferred

by statute.

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Id. at 955.

The Segarra Court explained that our Supreme Court has recognized

an implicit waiver of records protected by the MHPA, but that concept is

strongly disfavored and has been applied only where a plaintiff initiated a civil

action and then invoked privilege as a shield. The Segarra Court refused to

extend implicit waiver to the criminal realm.

These considerations are not present here, as this matter is not a

civil case, D.G. did not initiate the criminal case against Segarra,

and when D.G. sought mental health treatment as a sexual assault

complainant, she could not have reasonably foreseen that the

records of that treatment would be made available to her alleged

perpetrator. As our Supreme Court held in Fortieth Statewide

Investigating Grand Jury, we likewise “decline to extend the

principle of implicit waiver . . . to circumstances such as those

presented by the case at bar.”

Id. at 955–56 (footnote and citation omitted).

Appellant’s argument for disclosure is that J.N. implicitly waived her

privilege. “In the instant case, J.N. waived privilege by consenting to have

Jessica Ventura testify to what J.N. had written and discussed about her

alleged sexual abuse. Once this privilege was waived, all of Ms. Ventura’s

records should have been disclosed to defense counsel.” Appellant’s Brief at

30.8 The foregoing analysis addresses Appellant’s claim due to Appellant’s

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8 Appellant’s brief largely relies on T.J.W., supra.There, the Commonwealth

filed charges against T.J.W. based on his biological daughter C.W.’s recovery

of repressed memories. T.J.W. argued that C.W.’s memories “were induced

by controversial techniques employed” during psychotherapy. Id. at 1100.

The investigating Pennsylvania State Police Trooper “had her sign releases

and obtained records from various psychiatric and mental health treatment

(Footnote Continued Next Page)

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concession that there was a psychotherapist/patient privilege. 9 As in

Segarra, this is not a civil case; J.N. did not initiate the criminal charges; and

she could not have reasonably foreseen that her records would be disclosed

____________________________________________

providers” during the investigation, and the parties stipulated to an order

directing C.W.’s counsel to redact any information asserted to be privileged

and prepare a privilege log to be sent to T.J.W. and the Commonwealth.

C.W.’s submission was apparently deemed inadequate as the trial court

entered another order requiring C.W. to comply with the stipulated order.

C.W. then appealed that order.

We held that privilege was waived, due to the stipulated order. The

panel stated that the trial court held the stipulated order in abeyance for three

days to afford C.W. time to appeal if she chose. She declined to do so, and

we deemed her claim waived on that basis. This case is readily

distinguishable, as J.N. was not given any opportunity to respond to

Appellant’s request and she did not stipulate to any kind of order requiring

production of those materials.

9 Appellant agrees that the records were privileged under 42 Pa.C.S. § 5944,

which states:

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.

42 Pa.C.S. § 5944 (footnote omitted).

Appellant does not separately address whether the records were

protected by the MHPA. As stated in Segarra, the Section 5944 privilege “is

designed to protect confidential communications made and information given

by the client to the psychotherapist in the course of treatment, but does not

protect the psychotherapist’s own opinion, observations, diagnosis, or

treatment alternatives.” Segarra, 228 A.3d at 953-54 (citation omitted).

Appellant specifically claimed that he was entitled to know “all of the

conversations that [Ventura] had with [J.N.]” N.T., 11/15/21, at 87.

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to Appellant based on the Commonwealth’s decision to have Ventura testify

to J.N.’s prior statements. On that point, we add that Appellant’s request for

these records was largely an afterthought and he never specifically requested

an order compelling disclosure. Instead, Appellant merely suggested that he

would be entitled to them if a formal motion were filed. “There’s no probative

value to keep repeating the statements and it’s duplicative. I would also add

if Your Honor does admit these statements, I believe I would be entitled

to full contents of Ms. Ventura’s file regarding all of the conversations that

she’s had with [J.N.].” N.T., 11/15/21, at 87 (emphasis added). Finally, the

failure to formally seek these records means that there is no indication that

J.N. was aware of the request or given an opportunity to respond. 10 To the

extent that Appellant validly requested the records, we find that the trial court

committed no error as Appellant failed to establish that J.N. waived the

privilege.

Appellant’s final claim is that the trial court erred by imposing a no

contact order with J.N. and her family during his term of incarceration as well

as upon parole if granted. The Commonwealth concedes that this portion of

Appellant’s sentence is illegal.

Beginning with parole, the Board of Probation and Parole has the

exclusive power to impose parole conditions. See 61 Pa.C.S. § 6132(a)(1)(i)

____________________________________________

10 It is also unclear whether, as in Segarra, the Commonwealth ever

possessed the records in question. The waiver argument in Segarra was

based on the clinic’s decision to send the entire file to the Commonwealth.

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(“The board shall have exclusive power . . . [t]o parole and reparole, commit

and recommit for violations of parole[.]”). The sentencing judge “may make

at any time a recommendation” relative to parole conditions, and those

recommendations “respecting the parole or terms of parole of an offender

shall be advisory.” 61 Pa.C.S. § 6134(1); (2).

Turning to the trial court’s attempt to impose the “no contact” condition

during Appellant’s period of incarceration, the court identifies no statutory

authority permitting it to do so, and such an order would seemingly interfere

with the Department of Corrections’ authority to regulate and administer its

facilities. At least two unpublished decisions have concluded that a trial court

lacks authority to impose such conditions. See Commonwealth v.

Richardson, 1555 MDA 2022 (unpub. memo. at 5) (Pa. Super. March 21,

2023); (concluding that “the sentencing court lacked statutory authority to

impose incarceration and parole conditions”); Commonwealth v. Olivo-

Vazquez, 730 MDA 2020 (unpub. memo.) (Pa. Super. January 5, 2021)

(same). We therefore agree that these portions of Appellant’s sentence must

be vacated.

However, we need not remand for resentencing as no other aspect of

Appellant’s sentence will be disturbed by striking that condition. See

Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011)

(“Accordingly, to the extent the trial court purported to impose conditions of

parole in its sentencing order, those conditions and the order exceed the

bounds of the court’s authority and are subject to vacatur, which we hereby

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direct.”). If the court wishes to communicate its advisory comments, it may

do so pursuant to 61 Pa.C.S. § 6134.

The “no contact” provisions of Appellant’s sentence are vacated.

Judgment of sentence affirmed in all other respects. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/21/2023

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