Subpoena No. 22, In re

• Decision Date: 02 March 1998
• Parties: In re SUBPOENA NO. 22. Appeal of A.B., Appellant.
• Court: Pennsylvania Superior Court

Page 385

709 A.2d 385

In re SUBPOENA NO. 22 Appeal of A.B., Appellant.

Superior Court of Pennsylvania.

Argued Sept. 11, 1997.

Filed March 2, 1998.

Melvin R. Shuster, Philadelphia, for appellant.

William R. Toal, III, Asst. Dist. Atty., Havertown, for the Com., participating party.

Before KELLY, JOHNSON and HOFFMAN, JJ.

KELLY, Judge:

In this appeal we are asked to decide whether the Delaware County Court of Common Pleas properly denied appellant's, A.B.'s, motion to quash Subpoena No. 22. Specifically, we must determine whether the privilege accorded psychotherapist-client communications bars the disclosure of previous communications between a client and his psychotherapist to a special grand jury investigating the client's murder. We hold that, under the unique circumstances of this case, the psychotherapist-client privilege becomes a qualified privilege after the murder of the client and that privileged communications relevant to the murder investigation, if any, may be disclosed in related grand jury investigative proceedings. Accordingly, we affirm the trial court's denial of A.B.'s motion to quash the subpoena.

The relevant facts and procedural history underlying this appeal are as follows. A.B. is a social worker who provided psychological services to R.M., under the supervision of a licensed psychologist, from February 15, 1995, through November 27, 1995. On December 28, 1995, R.M. was the victim of a homicide. A special Investigating Grand Jury issued Subpoena No. 22 to A.B. in connection with the investigation of R.M.'s murder. A.B. filed a motion to quash the subpoena on the ground that any information regarding R.M. was obtained during therapy sessions and, therefore, was confidential and absolutely privileged.

The Honorable Kenneth A. Clouse, Supervising Judge of the Investigating Grand Jury, presided over a hearing on September 19, 1996, at which counsel presented argument on the legal and ethical guidelines applicable to psychotherapist-client communications. Following argument, Judge Clouse determined that R.M.'s privacy interests would be adequately protected by the secrecy provisions of the grand jury setting, and A.B.'s assertion of privilege on behalf of R.M. would work to the detriment of R.M.'s interests, would be contrary to the public policy underlying the privilege, and would impede the administration of justice. Accordingly, Judge Clouse denied A.B.'s motion to quash by order entered on September 24, 1996. In addition, Judge Clouse certified the question for appeal, pursuant to 42 Pa.C.S.A. § 702(b) and Pa.R.App.P. 312, and stayed enforcement of the subpoena pending A.B.'s exhaustion of appellate remedies. A.B. subsequently filed a petition for permission to appeal with the Superior Court. By order entered on January 3, 1997, this Court granted permission to appeal.

On appeal, A.B. presents the following questions for our review:

1. WHERE A SOCIAL WORKER PROVIDES THERAPY TO A CLIENT UNDER THE SUPERVISION OF A PSYCHOLOGIST, DOES THE STATUTORY PRIVILEGE ESTABLISHED BY 42 PA.C.S. § 5944 PRECLUDE DISCLOSURE BY THE SOCIAL WORKER OF THE CLIENT'S CONFIDENTIAL COMMUNICATIONS TO A GRAND JURY INVESTIGATING THE MURDER OF THE CLIENT?

2. IS A SOCIAL WORKER SUPERVISED BY A PSYCHOLOGIST ETHICALLY OBLIGATED TO PRESERVE THE CONFIDENTIALITY OF A CLIENT'S COMMUNICATIONS SO THAT THE SOCIAL WORKER MUST BE EXCUSED FROM DISCLOSING SUCH COMMUNICATIONS TO A GRAND JURY INVESTIGATING THE CLIENT'S MURDER?

(A.B.'s Brief at 4).

On review of a challenge to the disposition of a motion to quash a subpoena, this Court has stated:

"[W]hether a subpoena shall be enforced rests in the judicial discretion of the court." Pennsylvania Crime Commission v. Nacrelli, 5 Pa.Commw. 551, 577 (1972). Cf., Robert Hawthorne, Inc. v. County Investigating Grand Jury, 488 Pa. 373, 412 A.2d 556 (1980)(discretion of grand jury supervising judge regarding enforcement of subpoena). We will not disturb a discretionary ruling of a lower court unless the record demonstrates an abuse of the court's discretion. So long as there is evidence which supports the lower court's decision, it will be affirmed. We may not substitute our judgment of the evidence for that of the lower court.

In Re Semeraro, 511 Pa. 584, 587, 515 A.2d 880, 882 (1986). The great deference given to the court's factual findings and factual conclusions based upon the evidence, however, is not accorded to its conclusions of law. "[T]he trial court's conclusions of law are not binding on an appellate court, whose duty it is to determine whether there was a proper application of law to the facts by the trial court." Thatcher's Drug Store v. Consolidated Supermarkets Inc., 535 Pa. 469, 477, 636 A.2d 156, 160 (1994).

PaineWebber, Inc., v. Devin, 442 Pa.Super. 40, 51, 658 A.2d 409, 414 (1995).

Pennsylvania law does not favor evidentiary privileges. Commonwealth v. Stewart, 547 Pa. 277, 282, 690 A.2d 195, 197 (1997).

"[E]xceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Hutchison v. Luddy, 414 Pa.Super. 138, 146, 606 A.2d 905, 908 (1992)(quoting Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979)). Thus, courts should accept testimonial privileges "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth." In re Grand Jury Investigation, 918 F.2d 374, 383 (3dCir.1990)(quoting Trammel v. United States, 445 U.S. 40, 46, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980)).

Id. See also Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (common-law generally disfavors testimonial privileges).

When interpreting the psychotherapist-client statutory privilege, we are guided by the same principles that apply to the attorney-client privilege. Kalenevitch v. Finger, 407 Pa.Super. 431, 438, 595 A.2d 1224, 1228 (1991). See also 42 Pa.C.S.A. § 5944 (confidential communications between psychologist or psychiatrist and client shall be on same basis as between attorney and client). Once the party asserting a privilege shows that the privilege is properly invoked, the burden shifts to the party seeking the disclosure to show that disclosure of the information will not violate the accorded privilege. In re Investigating Grand Jury, 527 Pa. 432, 440, 593 A.2d 402, 406 (1991) (citations omitted). See also Brennan v. Brennan, 281 Pa.Super. 362, 372, 422 A.2d 510, 515 (1980) (citing Cohen v. Jenkintown Cab Co., 238 Pa.Super. 456, 464, 357 A.2d 689, 693-94 (1976) appeal denied (1976))(stating where privilege exists for specific purpose; party seeking disclosure has burden of establishing prima facie case that purpose of privilege would be frustrated by exercise of privilege).

In the instant case, we must narrowly construe the psychotherapist-client privilege that A.B. seeks to assert on behalf of the client, R.M., who is now dead. Further, the Commonwealth must show that the disclosure of certain confidential communications may help to solve the client's homicide and will not violate the appropriate privilege.

The Pennsylvania statute protecting communications made in confidence to a psychotherapist provides:

§ 5944. 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) [63 P.S. § 1201 et seq.], 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.A. § 5944. Modeled after the attorney-client privilege, ¹ codification of the psychotherapist-client privilege is based upon a strong public policy that confidential communications made by a client to the psychotherapist should be protected from disclosure, absent consent or waiver. Commonwealth v. Fewell, 439 Pa.Super. 541, 548, 654 A.2d 1109, 1112 (1995).

The privilege afforded by § 5944 was intended to inspire confidence in the client and to encourage full disclosure to the psychologist [and psychiatrist]. 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.

Id. at 548-49, 654 A.2d at 1112-13 (quoting Commonwealth v. Kyle, 367 Pa.Super. 484, 500, 533 A.2d 120, 128 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988)).

All fifty state legislatures and the District of Columbia have enacted into law some form of the psychotherapist-client privilege. Jaffee v. Redmond, supra at 12 & n. 11, 116 S.Ct. at 1929 & n. 11, 135 L.Ed.2d at 346 & n. 11. The states also recognize a variety of exceptions to the privilege. Id. at n. 13. The law in this Commonwealth makes clear that the privilege accorded confidential communications between the client and the psychotherapist must prevail under most circumstances.

For example, our courts have held that a criminal defendant's constitutional rights to confrontation and compulsory process must yield to the statutory psychotherapist-client privilege. Consequently, this Court has repeatedly denied criminal defendants access to the alleged victims' confidential psychotherapeutic records that are not already in the Commonwealth's possession. See e.g., Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992) (interpreting privilege accorded...