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filed: October 19, 1989.


Appeal from the Order of the Superior Court entered August 24, 1987 at No. 2773 Philadelphia, 1986, affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at Nos. 3365-3368, July Term, 1984.


John W. Packel, Chief, Appeals Div., Helen A. Marino, Asst. Defender, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Norman Gross, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, Former Justice, did not participate in the decision of this case. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.

Author: Mcdermott

[ 523 Pa. Page 428]


The appellant Stephen Lloyd appeals by allowance the order of the Superior Court affirming the judgment of sentence of the Common Pleas Court of Philadelphia. We reverse.

[ 523 Pa. Page 429]

On August 2, 1985, after a four-day trial, a guilty verdict was returned against appellant on charges of rape, statutory rape, indecent assault, and corruption of minors. After denial of post-verdict motions and appellant's motion to reconsider sentence, he was sentenced to an aggregate term of imprisonment of eight and one-half to seventeen years. The judgment of sentence was timely appealed to the Superior Court, which affirmed. Commonwealth of Pennsylvania v. Stephen Lloyd, 367 Pa. Super. 139, 532 A.2d 828 (1987).

The record reveals that during the summer of 1983, appellant was a supervisor in a government-funded program entitled "Play Street." During this time appellant assaulted and committed various sex acts upon the six-year-old victim who participated in the program. At trial, as part of his defense, appellant alleged that the victim was delusional and/or hallucinatory. To substantiate this claim he caused a subpoena duces tecum to be issued to the Psychiatric Institute of the Medical College of Eastern Pennsylvania which rendered psychotheraputic treatment to the victim. An in camera inspection of the records was conducted by the trial court which determined appellant's allegations to be unfounded based upon its review of the treatment records. Appellant argues that the trial court's refusal to grant defense counsel unlimited access to these records violated his rights to confrontation and compulsory process as guaranteed by Article 1, section 9 of the Pennsylvania Constitution.*fn1

[ 523 Pa. Page 430]

Though the constitutionality of the trial court's ruling has not previously been addressed by this Court under our state constitution, we have had occasion to rule on similar matters. For instance in Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976) where the defense was denied the right to examine pre-trial statements of a prosecution witness for the purpose of cross-examination, this Court stated:

"The defense was entitled to examine the statement in order to have a fair opportunity to cross-examine the witnesses. Whether the statements of the prosecution's witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a client. Matters contained in a witness' statement may appear innocuous to some, but have great significance to counsel viewing the statements from the perspective of an advocate for the accused about to cross-examine a witness."

Grayson, 466 Pa. at 429, 353 A.2d at 429.

Similarly in Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981), this Court was called upon to determine whether or not to create an absolute privilege for all communications between rape crisis center personnel and persons seeking assistance at the center. This Court held that the rights of an individual accused of rape require that the accused be given an opportunity at least to ascertain what the complainant had previously said. The relief there was limited in that the inspection was to be conducted in camera and statements reflecting counseling were not to be revealed. Interpretations or recollections of the counselor were not to be made available. Further, improper disclosure or use of the statements was prohibited. 494 Pa. at 29, 428 A.2d at 133.

[ 523 Pa. Page 431]

We decided the issue in Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985) similarly. There the defendant was charged with rape, involuntary deviate sexual intercourse, incest and corruption of minors. During trial preparation defense counsel served a subpoena upon The Child Welfare Services (CWS) seeking records involving the complaint. CWS refused and based this refusal upon the confidentiality of the records as mandated by 11 P.S. § 2215.*fn2 The defendant in Ritchie, Id. argued that notwithstanding the confidentiality provision of the Child Protective Services law, the refusal of CWS to permit inspection of their records was a denial of his sixth amendment right to confrontation as guaranteed by the United States Constitution. We held that the defendant was entitled to gain access to the entire file of The Child Welfare Services pertaining to his daughter so that determinations concerning what information might be useful to defense might be properly made by his advocate. Id. We held that the Commonwealth's interest in maintaining the confidentiality of these records could not override a defendant's right to confront and cross-examine the witnesses against him. The United States Supreme Court reversed our holding in part in Pennsylvania v. Ritchie, affirmed in part, reversed in part, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).

Our decision in Ritchie, supra was based upon our view of how the United States Supreme Court would balance a defendant's sixth amendment right to confrontation under the federal constitution against a victim's competing statutorily protected right to maintain the confidentiality of records of assault in the possession of the state. The issue currently before this Court arises not under the federal constitution but rather under our State Constitution and does not involve a request to discover statutorily protected state maintained records but rather a request to produce Psychotherapy records in the possession of a hospital where treatment was administered.

[ 523 Pa. Page 432]

While the minimum federal constitutional guarantees are equally applicable to the analogous state constitutional provisions, the state has the power to provide broader standards than those mandated by the federal constitution. Commonwealth v. Sell, 504 Pa. 46, 63, 470 A.2d 457 (1983). See also Prune-Yard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980), Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). Appellant would require that we not only apply our holding in Ritchie to the facts of his case but that we extend it to hold that the confrontation and compulsory process clause of the Pennsylvania Constitution require that appellant's counsel be given access to the victim's entire psychotheraputic record.

In Ritchie we determined that the defendant was denied his sixth amendment right to confrontation under the federal constitution when his attorney was denied total access to The Child Welfare Service records. We now hold under the confrontation clause of the Pennsylvania Constitution, that the appellant in the instant action was denied his right to confrontation when his attorney was denied access to the contents of the victim's psychotheraputic records. In addition we hold that the right to inspect these records is also mandated by the compulsory process clause of the Pennsylvania Constitution. Our reasoning in this regard is guided by this Court's decision in Commonwealth v. Smith, 417 Pa. 321, 208 A.2d 219 (1965). In Smith the issue was whether the defendant had the right to inspect certain witness statements in the possession of the Federal Bureau of Investigation. While discussing the appellant's right to access this information, Justice Musmanno writing for the majority stated, "Smith had the right to, and great need for, the statements he requested. The 6th Amendment to the Constitution of the United States guarantees to the accused the right to have compulsory process for obtaining witnesses in his favor and to have the assistance of Counsel for his defense." Smith, 417 Pa. at 329, 208 A.2d at 223. Though

[ 523 Pa. Page 433]

    the issue in Smith was resolved under the United States Constitution, it is clear that the Court intended to afford similar protection under the Pennsylvania Constitution when it said, "Of course, Article 1, section 9 of the Pennsylvania Constitution is equally applicable." Smith, 417 Pa. at 329 n. 2, 208 A.2d at 223 n. 1a.

We now turn to the Commonwealth's argument that the appellant waived his right to review the statement of the complainant as contained in the record of her psychiatric treatment. We note that appellee initially attempted to gain access to all of the victim's records. The Commonwealth argues that appellant has waived the right to inspect any statements contained therein as a request to inspect specific statements was not made. This argument is devoid of merit for logic dictates that appellant's request to view the entire record would naturally encompass the right to view any statements made by the victim. Further, by not having knowledge of the contents of these records he would not be expected to describe with particularity the specific statements which were the subject of the report.

We hold therefore that appellant's counsel is entitled to see these hospital records in an in camera proceeding to insure their confidentiality. The trial court may issue such orders as will protect that confidentiality.

Accordingly, we reverse and order a new trial.


Accordingly, we reverse and order a new trial.

LARSEN, Justice, dissenting.

In this tragic case, a six year old child was repeatedly raped, sodomized and otherwise sexually assaulted, her physical and personal integrity violated, her privacy invaded and shattered, by thirty-four year old Stephen Lloyd, who was the child's supervisor at the "Play 1 Street" child care program and a "trusted friend" of her family. The majority

[ 523 Pa. Page 434]

    of this Court now continues the assault upon this young rape victim's personal integrity, assists in the further invasion of her privacy, and quite possibly retards her treatment by permitting her attacker virtually unlimited access to all medical records generated by the psychotherapeutic treatment which she has received in an effort to deal with and hopefully overcome the emotional and psychological damages inflicted by Mr. Lloyd. Thus does the criminal "justice" system become an active accomplice in the violation of another rape victim.

With precious little constitutional analysis, the majority holds "under the confrontation clause of the Pennsylvania Constitution, that the appellant [Mr. Lloyd] . . . was denied his right to confrontation when his attorney was denied access to the contents of the victim's psychotherapeutic records . . .," and "that the right to inspect these records is also mandated by the compulsory process clause of the Pennsylvania Constitution." Majority op. at 434. This holding is not constitutionally compelled by either the confrontation clause or the compulsory process 2 clause or, for that matter, by due process. In my view, the medical records pertaining to the child victim's psychotherapeutic treatment are protected from disclosure by various recognized testimonial privileges which are not outweighed by the appellant's purported need for or limited right to such information in the hands of a non-adversary third party. Indeed, the majority opinion is stone silent on and does not even mention the various privileges that are relevant and operative in this case, namely the patient-psychologist privilege,*fn1 the patient-psychotherapist privilege,*fn2 the sexual assault counselor privilege,*fn3 and the patient-physician privilege.*fn4

[ 523 Pa. Page 435]

I have considered appellant's request for the psychotherapeutic treatment records of the Psychiatric Institute of the Medical College of Eastern Pennsylvania in light of these various testimonial privileges, and I conclude without hesitation that the appellant has failed to meet his burden of overcoming these privileges by a showing of particularized need for the information sufficient to outweigh society's and the victim's interests in maintaining the confidentiality of the communications generated within the psychotherapeutic relationship. Accordingly I dissent most sadly, most vigorously and apologetically to this victim and her family, and I would affirm the orders and decisions of the trial and Superior Courts.

Shortly after the child victim in this case disclosed that appellant was her attacker, she began weekly psychotherapy sessions with Dr. Clifford, a psychiatrist at the Psychiatric Institute of the 4 Medical College of Eastern Pennsylvania. Notes of Testimony (N.T.) at 71-72, 80, July 31, 1985. These weekly psychotherapy sessions with her psychiatrist continued from November 1983 up to and including the time of trial in July/August 1985. Id.

After the victim's mother testified briefly at trial that her daughter had been under the care of a psychiatrist, defense counsel requested a subpoena duces tecum for the medical records of the Psychiatric Institute pertaining to the victim's psychotherapeutic treatment. Counsel's request was predicated on his assertion that "his investigation revealed that [the victim] had been diagnosed as being delusional and hallucinating." N.T., August 2, 1985 at 89.

The court, the Honorable Ricardo C. Jackson presiding, ordered production of said records, and examined them fully in camera, concluding that "nowhere in the record did it show or did it say she was delusional or hallucinating." Id. at 90. Defense counsel objected to this procedure and requested that he be allowed to examine the medical

[ 523 Pa. Page 436]

    records to determine if the victim was delusional or hallucinating. Id. The court refused, informing defense counsel that the court had "reviewed those records from the very first line of those records to the very end" and found no suggestion that anyone at the Institute found the child delusional or hallucinating. Id. at 90-91.

Defense counsel then suggested other reasons why he should be allowed to examine the records himself. Id. at 92. Those other reasons were to determine whether the victim had made similar "accusations against other people," to learn "why was she treated, what was she being treated for, and what was her diagnosis," to discover what kind of medication she might have been on, and to learn whether she had been encouraged by her mother to make accusations against appellant. Id. at 92-97. The court informed counsel that the records showed the purpose of the victim's treatment was because she had been traumatized because appellant had sexual intercourse with her, that there was nothing in those records indicating that anyone else had had sex with her or that she had accused anyone else of having sex with her, that the medication prescribed was irrelevant and that there was nothing in the record to suggest that the victim had been influenced by her mother to accuse appellant of rape. Id.

Accordingly, the court denied defense counsel's request for access to the Psychiatric Institute's medical records. Counsel then moved for a mistrial which was denied. In his post-trial motions, appellant claimed that the court "denied his constitutional right to call and confront witnesses and to present a defense" by prohibiting him from inspecting the medical records and also by ruling that the witness from the Psychiatric Institute (Dr. Leaffy Pollack, also a psychiatrist) would not be compelled to testify. Appellant contended only that said records "would have shown (a) the complainant was delusional, and (b) had named others as committing the crime . . ." Post-trial "Statement of Matters Complained of On Appeal," par. 1.

[ 523 Pa. Page 437]

Post-trial motions were denied and, on appeal, a panel of the Superior Court upheld the trial court's refusal to allow defense counsel access to the medical records pertaining to the victim's psychotherapeutic treatment. This Court now, without legal justification, reverses the Superior Court and holds "that Appellant's counsel is entitled to see these hospital records in an in camera proceeding to insure their confidentiality. The trial court may issue such orders as will protect that confidentiality." Op. at 1359.*fn5

Article I, section 9 of this Commonwealth's Constitution provides, inter alia, that in all criminal prosecutions, an accused has the right "to meet the witnesses face to face" and the right "to have compulsory process for obtaining witnesses in his favor." These rights are not absolute, unlimited rights to discover any and all pieces of information existing anywhere in the world, and are of course subject to the normal evidentiary admissibility rules such as relevancy,materiality and competency, and are subject as well to traditional testimonial privileges against compelled disclosure of protected and/or confidential communications.

[ 523 Pa. Page 438]

As this Court stated in Commonwealth v. Jackson, 457 Pa. 237, 240, 324 A.2d 350 (1974), the right to compulsory process guaranteed by Article I, section 9 of the Pennsylvania Constitution and the Sixth Amendment to the United States Constitution "though fundamental, is not however, absolute. Evidentiary rules based on legitimate state interests which exclude certain witnesses or certain testimony are not inconsistent nor incompatible with the right to compulsory process." The same is true with regard to the state and federal constitutional right to confront and cross-examine witnesses contained within those same clauses, i.e., this right " even on its constitutional level, is qualified by the traditional testimonial privileges." Page 438} Commonwealth v. Sims, 513 Pa. 366, 375, 521 A.2d 391 (1987), citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). See e.g., Commonwealth v. McCloud, 457 Pa. 310, 312, 322 A.2d 653 (1974) 9 (hearsay evidence admissible against defendant in some circumstances over a claim that such admission would violate his right of confrontation and cross-examination); Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983) (right of compulsory process is qualified to extent of existing testimonial privileges, including privilege against self-incrimination); Commonwealth v. Sims, supra (right of confrontation is qualified to extent of existing testimonial privileges, including attorney-client privilege which protect against compelled disclosure of confidential communications made by client to attorney).

This Court's recent experience in Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985), is illustrative of the constitutional principal that a defendant's right to confront and cross-examine witnesses and to compulsory process is not absolute and must at times yield to legitimate testimonial privileges. In Ritchie, the defendant had repeatedly raped and otherwise sexually assaulted his twelve year old daughter. Defense counsel subpoenaed Child Welfare Services (CWS) to produce records pertaining to the child victim based on the flimsy assertion that there might be something that could be helpful to the defense in that case. Despite explicitly mandated statutory confidentiality of these records under the circumstances, a majority of this Court, over this writer's vigorous dissent (joined by former Justice Hutchinson), allowed the defendant unlimited access to the CWS files because, in the majority's view, the confrontation and compulsory process clauses of the Sixth Amendment to the Constitution of the United States required virtually unlimited disclosure of such files whenever a defendant merely asked for them, regardless of the confidential, privileged nature of the information sought or the fact that the information was in the hands of a neutral

[ 523 Pa. Page 439]

    third party and not used by or in the possession of the Commonwealth.

In Ritchie, I dissented pointing out that under both our federal and state constitutions, the rights to confrontation and to compulsory process have never been held to be unlimited rights of discovery and have always been qualified by testimonial privileges stemming from constitutional, common law and statutory sources. 1 509 Pa. at 373-75, 502 A.2d at 157. Speaking specifically of the Sixth Amendment rights to confront witnesses and to have compulsory process (although equally applicable under the Pennsylvania Constitution), I noted that a defendant's legitimate claim of entitlement to access to evidence/information must be carefully balanced against a legitimate claim that such evidence/information is privileged against compelled disclosure. Id. at 373-75, 502 A.2d at 157, (and see cases cited therein). Balancing the competing interests in Ritchie, I would have held that the CWS files would remain confidential and would have denied defense access to said files, particularly in light of Ritchie's totally general, vague and uncompelling assertion of his "need" to see said files.

On the Commonwealth's appeal by certiorari to the United States Supreme Court, that Court affirmed in part and reversed in part. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Four members of the Court, in an opinion by Justice Powell, held that the confrontation clause of the Sixth 2 Amendment did not require compelled disclosure of CWS's files and that the majority of this Court erred in ruling to the contrary. The plurality further held that the due process clause, not the compulsory process clause, provided the proper framework under the circumstances for determining whether a defendant is entitled to information in possession of a third party upon request by an accused. Applying due process principles, the plurality held that disclosure might be required because this "is not a case where a state statute grants [CWS] the absolute authority to shield its files from all eyes. Cf. 42 Pa. Cons.Stat. § 5945.1(b) (1982) (unqualified statutory privilege

[ 523 Pa. Page 440]

    for communications between sexual assault counselors and victims)." 480 U.S. at 57, 107 S.Ct. at 1002. Because the statutory privilege against compelled disclosure was qualified by the legislature, the plurality affirmed this Court's remand for further proceedings, but limited defense access to the CWS file. The Court held it would be sufficient for the trial court to inspect the file to determine whether it contained information that probably would have changed the outcome of the trial. If yes, Ritchie was to receive a new trial. If no, or if yes but nondisclosure was harmless error, the lower court was free to reinstate the conviction.

Justice Blackmun concurred in part and concurred in the judgment. While Justice Blackmun would have held that the confrontation clause was applicable, he nevertheless agreed that the plurality's remand to allow the trial court to inspect the records was sufficient to protect Ritchie's rights and interests under that clause.

The plurality opinion rendered additional guidance regarding the scope of a defendant's right to discovery in rejecting this Court's majority view "that whenever a defendant alleges that protected material might be material, the appropriate method of assessing this claim is to grant full access to the disputed information, regardless of the State's interest in confidentiality." 480 U.S. at 59, 107 S.Ct. at 1002-03. A defendant's right to discover exculpatory information does not include the unsupervised authority to search the Commonwealth's files, nor does it allow the defendant to conduct his own search of all files not in the Commonwealth's possession that might possibly be relevant. The Court then offered the following analysis which is enlightening to our determination in the instant case:

[ 523 Pa. Page 441]

To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting its child abuse information. If the [CWS] records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania's efforts to Page 441} uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child's feelings of vulnerability and guilt, and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have a state-designated person to whom he may turn, and to do so with the assurance of confidentiality. Relatives and neighbors who suspect abuse also will be more willing to come forward if they know that their identities will be protected. Recognizing this, the Commonwealth -- like all other States -- has made a commendable effort to assure victims and witnesses that they may speak to the [CWS] counselors without fear of general disclosure. The Commonwealth's purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result.

480 U.S. at 60-61, 107 S.Ct. at 1003-04 (emphasis added).

In the instant case, several recognized testimonial privileges are or may be operative.

[ 523 Pa. Page 442]

Privileged communications take various forms and are protected from disclosure for different reasons of social policy. They may be classed into three categories: (1) those designed to protect the individual, often the accused (e.g., the privilege against self-incrimination or against having otherwise illegally-obtained evidence admitted); (2) those designed to protect the integrity of some system of government (e.g., "executive privilege"); and (3) those designed to encourage freedom from fear of disclosure in persons partaking of certain relationships, the functions of which are deemed extremely important to society and which are dependent for their effectiveness on full mutual disclosure between the parties to the relationship (e.g., attorney/client, priest/penitent, physician/patient). Fisher, The Psychotherapeutic Professions and the law of Page 442} Privileged Communications, 10 Wayne L.Rev. 609, 610 (1964) (hereinafter Fisher); see also McCormick, The Scope of Privilege in the law of Evidence, 16 Texas L.Rev. 447 (1938) (hereinafter McCormick).

While there have been a variety of historical justifications for many of the privileges in the third class, it is generally conceded today that the sole justification for such privileges is that the social utility of the particular relationship is so great that it outweighs society's interest in having all possible evidence disclosed in the litigation, Comment, The Social Worker-Client Relationship and Privileged Communications, 1965 Wash.U.L.Q. 362, 365 (hereinafter Social Worker-Client Privilege), and that the relationship depends for its existence upon strict confidentiality between the parties. 8 J. Wigmore, Evidence § 2291 at 549-53 (McNaughton 7 rev. 1961) (hereinafter Wigmore).

At present, there is one, and only one, justification -- that the relationship is rendered ineffective either because a person is deterred from entering into it or because the person is frightened into non-disclosure during its course, and, that the effect of such an absence of the privilege is undesirable ...

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