Argued, October 29, 2014
Appeal from the Order entered April 1, 2014 in the Court of Common Pleas of Chester County, Criminal Division at No.: CP-15-CR-0002128-2012. Before WHEATCRAFT, J.
Joseph W. Carroll, III, West Chester, for APPELLANT.
Virginia H. McMichael, Haverford, for T.J.W., APPELLEE.
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.[*]
Appellant, C.W., appeals from the order directing her counsel to provide certain mental health treatment records for in camera inspection by the trial court to determine if the materials at issue are privileged. Appellant argues that the court erred because the records are protected from release by 42 Pa.C.S.A. § 5944, confidential communications to psychiatrists or licensed psychologists. We find that the claim of privilege, to prevent in camera inspection, was waived. The trial court properly ordered production for in camera examination to determine whether privilege applies to prevent further disclosure. Accordingly, we affirm the order and remand.
This is an interlocutory appeal. The underlying case has a somewhat convoluted as well as protracted history. We summarize
the facts most pertinent to the issues raised in this appeal. (For a more detailed history of the case, see Trial Court Opinion, 6/10/14, at 2-4; see also Trial Court Opinion and Order, 4/05/13, at 1-9).
Appellee, T.J.W. Jr. (Appellee T.J.W.), is charged with rape by forcible compulsion, involuntary deviate sexual intercourse, aggravated indecent assault and related charges. Appellant, the complainant, is his natural (biological) daughter. In 2011, Appellant, then nineteen, accused her father of rape, sexual molestation, and related acts beginning when she was four-and-a-half years old, until she was seventeen. The Pennsylvania State Police trooper investigating Appellant's charges had her sign releases and obtained records from various psychiatric and mental health treatment providers.
Appellant testified at a preliminary hearing that over the twelve year time span, Appellee T.J.W., engaged in six to eight acts of oral, vaginal and anal intercourse with her, as well as digital penetration and other inappropriate touching, without her consent. (See N.T., Preliminary Hearing, 6/08/12, at 11-28).
Appellant further testified that she always remembered the first incident, when she was about four and her father had her perform oral sex on him in his shower. (See id. at 43). However, on cross-examination, she also testified that she blocked out the memories of the other later incidents until she was nineteen. (See id. at 50). At that time, she began receiving amorous emails from one of her college professors, who apparently was trying to pursue her romantically (Appellant says he " hit on" her), telling her she was beautiful and that she made his wife jealous. (Id. at 50-51; see also Appellant's Brief, at 37 n.8).
Appellant stated that these emails from a man about her father's age who also told her she was beautiful and treated her " in a sexual nature" triggered memories by which she gradually recalled her father's other sexual assaults. (N.T. Preliminary Hearing, at 51; see also id. at 56-57).
Appellee T.J.W. denies the charges. He maintains that Appellant's recovered memories are false. He asserts that they were induced by controversial techniques employed during Appellant's course of psychotherapy. He argues that the process of recovering repressed memories of childhood sexual abuse is unproven and unreliable. Appellee also argues in his brief, as he did at oral argument, that Appellant's counsel's agreement to a stipulated order, and subsequent refusal to submit the documents to the trial court, raises the inference that " the files contain exculpatory evidence that contradicts or undermines
[Appellant's] version of the facts." (Brief of [ ] Appellee [T.J.W.], at 34).
Appellee T.J.W. also filed an omnibus pre-trial motion and served subpoenas on several of Appellant's mental health treatment providers. (See Trial Ct. Op., 6/10/14, at 2). The Commonwealth filed a motion to quash the subpoenas. (See Commonwealth's Motion to Quash Subpoenas, 9/04/12). On November 30, 2012, counsel entered his appearance to represent Appellant and filed another motion to quash on her behalf. Appellee T.J.W. withdrew the subpoenas, but apparently served another set later. Eventually, the parties to the litigation and counsel for Appellant reached an agreement, and the court entered an order with accompanying opinion on April 5, 2013. (See Opinion and Order of Court, 4/05/13).
On December 5, 2013, the trial court filed another order. This order directed Appellant's treatment providers to submit their records to her counsel, who would redact any information asserted to be privileged, and prepare a privilege log, both to be forwarded to the trial court. The court directed counsel to ...