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UNITED STATES EX REL. PATOSKY v. KOZAKIEWICZ

March 3, 1997

UNITED STATES OF AMERICA, EX. REL. FRED W. PATOSKY, Petitioner
v.
CHARLES J. KOZAKIEWICZ, Warden, Allegheny County Jail, Respondent, and THOMAS W. CORBETT, JR., Attorney General of the Commonwealth of Pennsylvania, Additional Respondent.



The opinion of the court was delivered by: SENSENICH

 I. RECOMMENDATION

 It is recommended that the petition for writ of habeas corpus be denied and that a certificate of appealability be denied.

 II. REPORT

 Petitioner was charged on January 17, 1991 with criminal counts of indecent assault and simple assault and the summary offense of harassment, with respect to an incident that occurred on November 19, 1990 involving Eleanor Paine, a co-worker at United Airlines. (Pet'r's Reprod. R. in Super. Ct. Appeal, Doc. # 3, at 2a-2aa.) Prior to trial, Petitioner's counsel, H. David Rothman, filed a Motion for Order Directing the Production of Hospital Records with respect to Ms. Paine. (Answer Ex. 1.) On July 27, 1992, Judge Raymond A. Novak issued an order directing the Beaver County Medical Center to produce psychiatric hospitalization records for Ms. Paine for the period beginning May 16, 1991 and continuing twenty days thereafter. (Answer Ex. 2.) On July 30, 1992, Judge Novak entered an order indicating that he had reviewed the medical records, and that the assistant district attorney would be given an opportunity to review the records and discuss them with Ms. Paine before defense counsel would be permitted to review the records on or after August 10, 1992. (Answer Ex. 4.)

 However, after reviewing the records, the assistant district attorney informed the court that he had improvidently consented to the order for the production of records pursuant to the Pennsylvania Supreme Court's decision in Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (Pa. 1989). After that decision was issued, the Pennsylvania legislature amended a section of the Judicial Code to create an absolute privilege for confidential communications between a psychiatrist and his or her client. 42 Pa. C.S. § 5944 (amended Dec. 22, 1989, effective 60 days thereafter). Thereafter, Ms. Paine exercised her privilege to keep the records confidential. (Doc. # 3 at 41a.) *fn1" Petitioner conceded the existence of the statutory privilege but, in a supplemental motion in limine filed November 18, 1992, challenged the constitutionality of the statute. (Doc. # 3 at 95a-99a.) In an order dated December 7, 1992, Judge Novak requested supplemental briefs on the issue and set oral argument for February 3, 1993. (Doc. # 3 at 39a-42a.)

 At the hearing on February 3, 1993, Judge Novak recognized that, pursuant to § 5944, the records should not have been submitted to the court and should not have been reviewed by the assistant district attorney. However, he also found

 
beyond a reasonable doubt that there is nothing in those records which puts the district attorney at an unfair advantage over the defense. Their content is not such that there is any advantage to the district attorney in having read the records, and, therefore, no unfairness to the defendant has resulted from the district attorney's review of the record.

 (Hr'g Tr. Answer Ex. 5 at 4-5.) Although Judge Novak expressed concern over the holdings of the Pennsylvania appellate courts on this issue, particularly in a case in which a court has mistakenly reviewed the records, he followed these decisions and denied Petitioner's motion to have access to the records. (Answer Ex. 5 at 6.) Trial began on February 17, 1993, and on February 23, 1993, the jury found Petitioner guilty of indecent assault and not guilty of simple assault. Judge Novak found Petitioner guilty of the summary offense of harassment.

 Petitioner filed post-trial motions on March 1, 1993 and on July 27, 1993. (Doc. # 3 at 13a-16a, 18a-21a.) On August 5, 1993, Judge Novak denied the post-trial motions and sentenced Petitioner to three to six months imprisonment on the indecent assault conviction; no further penalty was imposed on the harassment conviction. (Doc. # 3 at 157a-167a.) On August 24, 1993, Petitioner filed a notice of appeal in the Pennsylvania Superior Court (Doc. # 3 at 22a-23a), which was docketed at No. 1335 Pittsburgh 1993. On February 17, 1994, Judge Novak issued his opinion on the denial of Petitioner's post-trial motions. (Answer Ex. 6.)

 In his appeal, Petitioner raised the following issues:

 
1. SHOULD THE DECISION OF THIS HONORABLE COURT IN COMMONWEALTH VS. KYLE BE REVERSED TO ALLOW AN IN CAMERA REVIEW OF THE ALLEGED VICTIM'S PSYCHIATRIC RECORDS?
 
A. DOES THE ABSOLUTE PRIVILEGED COMMUNICATION BETWEEN PATIENT AND PSYCHIATRIST VIOLATE [PETITIONER'S] CONSTITUTIONAL RIGHTS TO EFFECTIVE CONFRONTATION, COMPULSORY PROCESS, DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL?
 
B. DID THE COURT ERR IN DENYING AN EVIDENTIARY HEARING TO DETERMINE THE NECESSITY OF AN ABSOLUTE PRIVILEGE?
 
C. DOES THE ABSOLUTE PRIVILEGE VIOLATE THE DOCTRINE OF THE SEPARATION OF POWERS?
 
D. DOES THE ABSOLUTE PRIVILEGE CONSTITUTE AN ABUSE OF POLICE POWER?
 
2. DID THE COURT ERR AND DENY [PETITIONER] A FAIR TRIAL BY ALLOWING HIM TO BE IMPEACHED ON A COLLATERAL ISSUE?
 
3. DID THE COURT ERR AND DENY [PETITIONER] A FAIR TRIAL BECAUSE [PETITIONER] WAS ALLOWED TO BE IMPEACHED BY PROOF OF SPECIFIC CONDUCT TO REFUTE HIS EVIDENCE OF GOOD REPUTATION FOR PEACEFULNESS?
 
4. DID THE COURT ERR AND DEPRIVE [PETITIONER] A FAIR TRIAL BECAUSE EVIDENCE WAS ALLOWED RELATIVE TO THE ALLEGED VICTIM'S DEMEANOR AT THE TIME SHE REGISTERED HER COMPLAINT ALMOST TWO MONTHS AFTER THE ALLEGED OFFENSE AND BECAUSE THE COURT FAILED TO INSTRUCT ON THIS ISSUE AS REQUESTED?
 
5. DID THE COURT ERR IN FAILING TO INSTRUCT THE JURY, AS REQUESTED, TO VIEW THE TESTIMONY OF THE ALLEGED VICTIM WITH EXTREME CAUTION BECAUSE OF HER FAILURE TO MAKE A PROMPT COMPLAINT OF CHARGES OF INDECENT ASSAULT?

 (Answer Ex. 7 at 3.) On March 16, 1995, the Superior Court affirmed Petitioner's sentence; Judge Cirillo dissented. (Answer Ex. 8.) This opinion was published as Commonwealth v. Patosky, 440 Pa. Super. 535, 656 A.2d 499 (Pa. Super. Ct. 1995).

 On April 17, 1995, Petitioner filed a petition for allowance for appeal in the Pennsylvania Supreme Court, which was docketed at No. 210 W.D. Allocatur Docket 1995. He raised the following issues:

 
A. Was Petitioner denied effective confrontation, compulsory process and due process because he was denied access to an in camera view of the alleged victim's psychiatric records?
 
B. Was Petitioner entitled to an evidentiary hearing to determine the necessity of an absolute privilege?
 
C. Does the absolute privilege between psychiatrist and patient exceed a valid exercise of the police power?
 
D. Does the absolute privilege invade the function of the judiciary and constitute a violation of the Doctrine of Separation of Powers?
 
E. Did the courts below err in concluding that Petitioner was properly impeached on a collateral issue?
 
F. Even assuming the impeachment was not collateral to the offense of harassment, did the Superior Court err in affirming the admissibility of impeachment evidence where the summary offense of harassment was not being tried to the jury?
 
H. Was it error to admit evidence of the alleged victim's demeanor when she registered her late complaint and was it error to refuse Petitioner's requested instruction relative to this testimony?
 
I. Was Petitioner entitled to an instruction to the jury to consider the alleged victim's testimony with extreme caution in view of her late complaint?

 (Answer Ex. 9 at 2-3.) On September 19, 1995, the Pennsylvania Supreme Court denied the petition for allowance of appeal by a per curiam order. (Answer Ex. 10.) Commonwealth v. Patosky, 542 Pa. 664, 668 A.2d 1128 (Pa. 1995).

 On March 13, 1996, Petitioner, still represented by Attorney Rothman, filed the instant petition. *fn2" He raises the following issues:

 
The primary issue presented by the instant Petition and in the state courts concerns the unconstitutionality of 42 Pa. C.S.A. Section 5944, wherein the legislature of Pennsylvania has enacted an absolute privilege on par with the lawyer-client privilege relative to communications between a psychiatrist and an alleged victim.
 
. . . .
 
Petitioner is in custody in violation of the Constitution of the United States. As succinctly put by Judge Cirillo, in his dissenting opinion, petitioner's "constitutional rights to effective confrontation, compulsory process and due process were violated when the trial court did not allow his attorney to conduct an in camera review of the alleged victim's psychiatric records."
 
The fact-finding procedure employed by the Commonwealth of Pennsylvania was inadequate to afford a full and fair hearing and the material facts were not adequately developed in the state court proceedings: 28 U.S.C. Section 2254(d)(2)(3) and (6). Petitioner was further denied due process in the state court proceedings because he was deprived of the effective assistance of counsel, who was unable to review and utilize the psychiatric records of the alleged victim, all in violation of the due process clause of the Fifth Amendment to the United States Constitution, the right to confrontation, in violation of the Sixth Amendment to the United States Constitution, and in violation of equal protection of the law, guaranteed by the Fourteenth Amendment to the United States Constitution. See petitioner's Supplemental Motion in Limine in the trial court (96a-99a).
 
As a corollary to the violations of 28 U.S.C. Section 2254, urged above, the absolute privilege violates the doctrine of separation of powers because it improperly impedes the judicial branch of government in performing its fact-finding function, an issue exhausted in the state courts.
 
The record in this case is not complete because the trial court and the appellate courts denied petitioner's request for an evidentiary hearing as to the factual basis for a need for an absolute privilege[,] an issue addressed throughout in the state courts. On slight evidence, at best, the legislature of Pennsylvania and the courts erroneously assumed the need for an absolute privilege to insure the integrity of the psychiatrist-patient relationship at the expense of the right of the accused to view the records of that relationship for the purpose, if possible, of impeaching the credibility of the alleged victim to prevent petitioner's loss of freedom. The need for such a hearing in this Honorable Court is necessary to complete the record.

 (Pet. at 2, 8-10.) In a Memorandum in Support of Petition for Writ of Habeas Corpus, Petitioner describes his claims as follows:

 
. . . .
 
II. THE PENNSYLVANIA COURTS DEPRIVED PETITIONER OF SAID CONSTITUTIONAL RIGHTS BY DENYING AN EVIDENTIARY HEARING AND DISALLOWING PETITIONER AN OPPORTUNITY TO DISPROVE THE NECESSITY OF AN ABSOLUTE PRIVILEGE.
 
. . . .
 
III. PETITIONER'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL HAS BEEN VIOLATED BY PENNSYLVANIA'S FAILURE TO RECOGNIZE THAT THE ABSOLUTE PRIVILEGE HAS RESULTED IN A LEGISLATIVE ENCROACHMENT ON THE JUDICIAL BRANCH OF GOVERNMENT.

 (Doc. # 2 at 1, 16, 23.)

 The Facts

 The trial court described the facts of the case as follows:

 
Eleanor Paine testified that during the early morning hours of November 19, 1990, she and [Petitioner], both of whom were employees of United Airlines, were in the break room area at the United Airlines air freight dock at Greater Pittsburgh International Airport. Ms. Paine commented that her fingers were stiff and [Petitioner] started to rub her hand. He then grabbed her hand with both of his hands and began to pull Ms. Paine toward a cot which was in the room. Ms. Paine told [Petitioner] to leave her alone. Instead, [Petitioner] put his arm around her and responded that he was "collecting the pay that she owed him."
 
He then pulled the victim down onto the cot and got on top of her. He put his hands under her knees, pulled her legs up, and pinned her to the cot. [Petitioner] then unbuckled her belt and unzipped her pants. Ms. Paine yelled "Stop it," several times but [Petitioner] continued and said repeatedly that he was just trying to make her feel good. When Ms. Paine began to complain that [Petitioner] was hurting her back, he got off of her and allowed her to stand up, but he then began to rub her breasts and he kissed the crotch area of her pants. Ms. Paine did not report the incident until almost two months later.
 
[Petitioner] testified that he never made any rude comments to Ms. Paine and the incident in ...

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