In the Interest of: J.M.G., a Minor ( 2020 )

[J-76-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN THE INTEREST OF: J.M.G., A MINOR : No. 18 MAP 2019
:
: Appeal from the Order of the Superior
APPEAL OF: J.M.G. : Court dated May 18, 2018,
: Reconsideration Denied July 26, 2018,
: at No. 476 MDA 2017, Affirming the
: Order of the Cumberland County Court
: of Common Pleas, Juvenile Division,
: dated March 15, 2017 at Nos. CP-21-
: CV-0003322-2017 & CP-21-JV-
: 0000206-2014.
:
: ARGUED: September 12, 2019
OPINION
JUSTICE MUNDY DECIDED: April 22, 2020
We granted allowance of appeal in this case to decide whether the harmless error
doctrine is applicable to determinations made by the trial court under Act 211 when the
materials provided to the Sexual Offender Assessment Board (SOAB), and considered
by the Commonwealth’s expert in preparing his report and rendering his opinion,
erroneously contained privileged communications under 42 Pa.C.S. § 5944 of the Judicial
Code, establishing psychologist-patient privilege. For the reasons that follow, we
conclude that the harmless error doctrine does not apply.
A brief summary of the factual and procedural circumstances follows. Appellant,
J.M.G., was born in August 1996. From an early age, J.M.G. experienced chronic mental
1 42 Pa.C.S. §§ 6401-6409.
health issues and a series of resultant hospitalizations. Following an incident in 2013,
during which he attempted to choke his adoptive mother (Mother), J.M.G. consented to a
voluntary admission into Philhaven, a behavioral health facility treating children and
adolescents. Thereafter, J.M.G. agreed to a voluntary admission into Bradley Center, a
residential treatment facility. While at Bradley Center, J.M.G. made revelations to Mother
that he had been sexually inappropriate with his adoptive sister. Mother referred the
matter to Childline. A subsequent investigation resulted in J.M.G. being adjudicated
delinquent on July 6, 2015, for one count of misdemeanor indecent assault.2 The
Superior Court affirmed the disposition order on July 12, 2016.3 J.M.G. has been
continually placed in secure, residential treatment facilities since his adjudication.
On May 19, 2016, the trial court notified J.M.G. that he was subject to evaluation
by the SOAB in accordance with Section 6358 of the Juvenile Act.4 The court’s order
directed the Chief Juvenile Probation officer or designee to “redact the substance of any
confidential communication from the child to a psychiatrist or psychologist in the course
of treatment” in accordance with 42 Pa.C.S. § 5944. The Juvenile Probation Department
2 18 Pa.C.S. § 3126(a)(7).
3In the Interest of: J.M.G.: Appeal of J.M.G., 1547 MDA 2015, 2016 WL 4919866 (Pa.
Super. July 12, 2016) (unpublished memorandum).
4 Section 6358 directs that juveniles who are adjudicated delinquent on certain predicate
sexual offenses and remain committed to a secure facility by the age of 20 “shall be
subject to an assessment by the [SOAB].” 42 Pa.C.S. § 6358(a). As part of that process,
the relevant probation department is tasked with assisting the SOAB to obtain “any
information required by the board to perform the assessment, including, but not limited
to, the child’s official court record and complete juvenile probation file.” Id. § 6358(b).
The SOAB then performs an assessment to determine if the juvenile, due to a mental
abnormality resulting in “difficulty in controlling sexually violent behavior,” is in need of
future involuntary mental health treatment. Id. § 6358(c). The recommendation is
presented to the trial court, which supplies the report to the parties and conducts a review
hearing to determine if a prima facie case has been made for further proceedings under
Act 21. Id. § 6358(d)-(f).
[J-76-2019] - 2
assembled materials and records it planned to provide to the SOAB. A copy of these
documents were supplied in advance to J.M.G.’s attorney. The trial court granted
J.M.G.’s request for additional time to review the submission. On July 13, 2016, J.M.G.
filed a motion for additional redactions to the records. The trial court denied the motion
and the documents were supplied to the SOAB without further redaction. Specifically, the
materials included an April 7, 2015 psychiatric evaluation report made by Dr. Rocco
Manfredi for the purpose of J.M.G.’s treatment and in which J.M.G. made incriminating
statements. Dr. Manfredi’s report also contained allusions to an earlier evaluation made
for therapeutic purposes in which additional unfavorable statements by J.M.G. were
referenced.5 Based on the SOAB’s assessment, the trial court conducted a dispositional
hearing to ascertain if a prima facie case existed to initiate civil commitment proceedings.6
5 Following a detention/shelter care hearing, the trial court’s order of March 13, 2015
transferred J.M.G. from the Cumberland County Prison to Abraxas Youth Center-Secure
Detention for a psychiatric evaluation by Dr. Manfredi to be supplied to PerformCare (an
association of behavioral health organizations) to review for potential appropriate facilities
for the trial court to consider in ordering placement of J.M.G. See Trial Court Order,
3/13/2015.
6 The pertinent procedures and requirements of Act 21 are as follows:
§ 6403. Court-ordered involuntary treatment
...
(b) Procedures for initiating court-ordered involuntary
commitment.--
(1) Where, pursuant to the provisions of section 6358(f)
(relating to assessment of delinquent children by the State
Sexual Offenders Assessment Board), the court determines
that a prima facie case has been presented that the child is in
need of involuntary treatment under the provisions of this
chapter, the court shall order that a petition be filed by the
county solicitor or a designee before the court having
jurisdiction of the person pursuant to Chapter 63 (relating to
juvenile matters).
[J-76-2019] - 3
On January 27, 2017, the trial court ruled that a prima facie case was established. The
Cumberland County District Attorney7 filed a petition requesting J.M.G. be involuntarily
(2) The petition shall be in writing in a form adopted by
the department and shall set forth the facts constituting
reasonable grounds to believe the individual is within the
criteria for court-ordered involuntary treatment as set forth in
subsection (a). The petition shall include the assessment of
the person by the board as required in section 6358.
...
(4) The person shall be informed that the person has a
right to be assisted in the proceedings by an independent
expert in the field of sexually violent behavior. If the person
cannot afford to engage such an expert, the court shall allow
a reasonable fee for such purpose.
...
(d) Determination and order.--Upon a finding by clear and
convincing evidence that the person has a mental abnormality
or personality disorder which results in serious difficulty in
controlling sexually violent behavior that makes the person
likely to engage in an act of sexual violence, an order shall be
entered directing the immediate commitment of the person for
involuntary inpatient treatment to a facility designated by the
department. The order shall be in writing and shall be
consistent with the protection of the public safety and the
appropriate control, care and treatment of the person. An
appeal shall not stay the execution of the order. If the court
does not order the person to be committed for involuntary
inpatient treatment by the department, the court shall order
the director of the facility operated by the department pursuant
to section 6406(a) to destroy the facility's copy of the petition
and the assessment.
42 Pa.C.S. § 6403.
7The District Attorney’s office acted as the County’s designee for Act 21 proceedings.
Hereafter, in concert with the Superior Court and the parties’ briefs, we refer to the office
as the Commonwealth, albeit this is not a criminal proceeding.
[J-76-2019] - 4
committed under Act 21. A civil commitment hearing occurred on March 13, 2017.
Witnesses testifying at the hearing included Dr. Stein, who earlier testified as the sole
prima facie hearing witness. His evaluation included a summary of Dr. Manfredi’s
evaluation report. Additional witnesses included Jamie Henry, a therapist at Cove Prep;
Dana Evangelista, clinical services manager at Cove Prep; and Dr. Foley, who opined on
behalf of J.M.G. that placement was not justified. Thereafter, the trial court delivered its
order civilly committing J.M.G., effective March 14, 2017. J.M.G. filed a timely notice of
appeal.
On appeal, J.M.G. challenged, inter alia, the trial court’s failure to properly redact
the materials provided to the SOAB, resulting in the inclusion of information subject to
J.M.G.’s psychotherapist-patient privilege.8 The Superior Court majority, relying on that
court’s decision in In the Interest of T.B., 75 A.3d 485 (Pa. Super. 2013), concluded the
trial court erred in failing to redact Dr. Manfredi’s report. In the Interest of: J.M.G., 476
MDA 2017, 2018 WL 2274825 (Pa. Super. May 18, 2018) (unpublished memorandum).
In T.B., the Superior Court held that Act 21 afforded no exception to the psychotherapist-
patient privilege:
To be clear, it is not the purpose for which statements are
sought that defines their privileged nature, but rather the
purpose and circumstances under which the declarant made
8 The Superior Court Panel first reviewed J.M.G.’s claim that the evidence was insufficient
to support the trial court’s order of involuntary commitment under Act 21. Viewing all the
evidence, including any improperly admitted evidence, in the light most favorable to the
prevailing party below, and in consideration of the trial court’s credibility determinations,
the Panel concluded the evidence was sufficient to establish clearly and convincingly that
J.M.G. is in need of involuntary treatment under Act 21, i.e., “due to a mental abnormality
or personality disorder which results in serious difficulty in controlling sexually violent
behavior that makes [him] likely to engage in an act of sexual violence.” 42 Pa.C.S. §
6403(a). The Panel also rejected the Commonwealth’s claim that J.M.G. waived his
challenge to the trial court’s redaction for failure to specify the portions of the record he
sought to be further redacted. The Panel noted J.M.G. specifically identified the April 7,
2015 evaluation report by Dr. Manfredi in his motion for additional redactions.
[J-76-2019] - 5
them. Consequently, statements of a juvenile made to a
mental health professional while in treatment remain
privileged and may be released to the SOAB only with the
juvenile’s written consent.
T.B., 75 A.3d at 496 (emphasis original). Thus, the court remanded to the trial court with
instructions to vacate the determination by the SOAB if it found the submitted materials
included any “statements, evaluations, and summaries [] made for treatment purposes
and the juvenile was not represented by counsel and informed of his right against self-
incrimination[.]” Id. at 497. In the instant case, the Superior Court concluded that Dr.
Manfredi’s evaluation was made for therapeutic purposes, and that J.M.G. had not been
represented by counsel during the evaluation nor advised of his rights. The Panel
therefore held that the trial court erred in failing to redact the report from the materials
submitted to the SOAB.
The Panel majority proceeded to subject this holding to a harmless error analysis.
It noted that such an analysis was not engaged in by the T.B. Court. However, the Panel
majority noted precedent suggested that evidence admitted in contravention of the
psychotherapist-patient privilege may be subject to harmless error analysis. In the
Interest of: J.M.G. 476 MDA 2017, at *5 (citing Commonwealth v. Flynn, 460 A.2d 816,
823 (Pa. Super. 1983)). In Flynn, the Superior Court affirmed the trial court’s rejection of
Appellant’s proffered insanity defense, notwithstanding admission of purported
psychiatrist/patient privileged communications. Without determining the existence or
scope of the privilege, the court noted the trial court stated it rejected the insanity defense
without considering the challenged evidence, thus even if the testimony was improper, its
admission in that case was harmless. Id. The majority here found that Dr. Stein’s
conclusions were not dependent on the improperly disclosed communications, but were
[J-76-2019] - 6
supportable on other properly disclosed information submitted to the SOAB. Id. at *5-6.
Further the majority noted that the opinions of Dr. Stein and J.M.G.’s expert did not
disagree that J.M.G. has a mental abnormality that inclines him to sexual offending. The
differences pertained to the appropriateness of inpatient treatment, which, according to
the majority, was not relevant to the improperly admitted materials. Id.
The dissent fully agreed with the majority’s determination and reasoning pertaining
to the trial court’s failure to redact Dr. Manfredi’s evaluation report from the materials
submitted to the SOAB. J.M.G. 476 MDA 2017, at *6 (Bowes, J., dissenting). However,
the dissent disagreed with the majority’s harmless error analysis, noting that the purpose
underlying the psychotherapist-patient privilege is grounded in the therapeutic needs of
patients suffering from mental health conditions. Id. at *7. Because candor is essential
to effective treatment, assurance that therapeutic communications are safe from
unauthorized disclosure is essential. Citing the T.B. Court’s remand instructions to the
trial court in that case, directing that the court “shall” vacate the determination of the SOAB
if privileged materials had been erroneously submitted, the dissent opined that harmless
error analysis is inappropriate in an Act 21 context.9 Id. at *8. The dissent noted it would
remand the matter with resubmitted materials properly redacted for assessment by
individuals untainted by the improper disclosures. Id. at *9.
9 Alternatively, the dissent contended that, even if harmless error analysis were proper,
the error in this case was not harmless. Recounting the myriad statements by J.M.G.
contained in Dr. Manfredi’s report, the dissent deemed them to be significant to the issue
of J.M.G.’s mental abnormality and likeliness to commit further acts. Additionally, the
dissent noted Dr. Stein testified that he considered all the materials submitted to the
SOAB in deriving his conclusions.
[J-76-2019] - 7
We granted J.M.G.’s petition for allowance of appeal to consider the following
question:
Where the trial court violates the psychiatrist/patient privilege
of a minor who had previously been placed in a juvenile
delinquency facility and ordered to participate in ongoing
mental health treatment, and where the trial court allowed,
over objection, statements made by the juvenile to his
psychiatrist and/or psychologist to be provided to the Sexual
Offender Assessment Board (SOAB) pursuant to an Act 21
civil commitment procedure, is the violation harmless error?
In the Interest of: J.M.G., 202 A.3d 42 (Pa. 2019).10
In his brief to this Court, citing extensively from the Superior Court dissent, J.M.G.
argues both that harmless error analysis is not appropriate when psychotherapist-patient
privilege is violated in Act 21 cases, and that even if such analysis is applied, the facts of
this case do not support a conclusion that the error was harmless. Unlike the dissent,
J.M.G. urges this court not to order a remand for further untainted proceedings, but to
discharge him from any Act 21 commitment.11
The Juvenile Law Center and the Pennsylvania Psychiatric Society filed a brief as
Amici Curiae in support of J.M.G. Amici note a foundational tenet of our juvenile system
10The applicability of the harmless error doctrine to Act 21 presents a pure question of
law. When reviewing questions of law, we exercise a plenary scope of review and de
novo standard of review. In re Vencil, 152 A.3d 235, 241(Pa. 2017).
11 J.M.G. includes an additional section of his brief urging this Court to adopt the holding
in T.B. that the psychotherapist-patient privilege is applicable to Act 21 proceedings,
precluding admissibility of such privileged communications. The question accepted for
review in this appeal presupposes the applicability of the privilege to the inclusion of such
communications to the SOAB and admission of such material in subsequent Act 21
hearings. The question also accepts the fact that privileged material was erroneously
disclosed in the submission to the SOAB in this case. The question to be resolved in this
appeal is the applicability of the harmless error doctrine when privileged communication
has been erroneously admitted.
[J-76-2019] - 8
is that minors who commit delinquent acts are amenable to treatment and rehabilitation.
To this end, a myriad of services are employed to address the particular needs of each
minor in the system. Among the arsenal of treatment options is, where appropriate,
mental health treatment. For effective mental health treatment, a patient must be open
to treatment, be able to provide candid disclosure to the treatment provider, and trust in
the recommendations of the treatment offered. The psychotherapist-patient privilege is
an essential protection, without which the success of mental health treatment would be
undermined. Amici contend that subjecting a violation of psychotherapist-patient privilege
to a harmless error analysis “upends the system.” Amici Brief at 11. The evidentiary
harm according to Amici, is irrelevant. “[I]f the purpose of the privilege is to be served,
the participants in the confidential conversation ‘must be able to predict with some degree
of certainty whether particular discussions will be protected. An uncertain privilege … is
little better than no privilege at all.’” Id. at 11 (quoting Jaffee v. Redmond, 518 U.S. 1, 17
(1996) (internal citation omitted)).
In its brief, the Commonwealth argues that this Court, when adopting the validity
of judicial employment of harmless error analysis, recognized that such practice could
“denigrate the interests and policies which both constitutional and non-constitutional rules
promote.” Commonwealth Brief at 12 (quoting Commonwealth v. Story, 383 A.2d 155,
164 (Pa. 1978)). However, the Court in Story mitigated this concern by placing the burden
on the Commonwealth to establish harmlessness beyond a reasonable doubt. Therefore,
the Commonwealth argues that the prejudicial impact at issue with harmless error
analysis is limited to the effect the improperly admitted evidence has in relation to the
[J-76-2019] - 9
inquiry at issue, not in relation to the tangential policy considerations protected by the
privilege.
The Commonwealth notes that harmless error may be found where the tainted
evidence is merely cumulative of properly admitted evidence, where the evidence was
not prejudicial, or where the prejudicial impact is de minimis. The Commonwealth argues
the Superior Court majority correctly determined that the records properly submitted to
Dr. Stein contain ample support for his conclusions without consideration of the materials
disclosed in violation of J.M.G.’s psychotherapist-patient privilege. The Commonwealth
discounts J.M.G.’s reliance on T.B., noting that the Court in that case remanded to the
trial court for a determination of whether a breach of the privilege had occurred. Nothing
in T.B. precluded application of harmless error analysis where, as here, the Superior
Court determined evidence had been disclosed in violation of the privilege.
To consider these arguments, we begin with a review of the privilege at issue. The
psychotherapist-patient privilege has been codified since 197212 and currently provides
as follows:
§ 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), 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.
12The provision, originally enacted at 63 P.S. § 1213, was repealed and reenacted at 42
Pa.C.S. § 5944 on July 9, 1976. The provision was amended December 22, 1989 with
the addition of “psychiatrist” to the language.
[J-76-2019] - 10
42 Pa.C.S. § 5944. “The psychiatrist/psychologist-patient privilege is based upon a
strong public policy that confidential communications made by a patient to a psychiatrist
or psychologist should be protected from disclosure, absent consent or waiver.”
Commonwealth v. Counterman, 719 A.2d 284, 295 (Pa. 1998). This is to ensure and
foster “confidence in the [patient] and to encourage full disclosure to the psychologist [and
psychiatrist] . . . . [T]he privilege is designed to promote effective treatment and to insulate
the [patient’s] private thoughts from public disclosure.” Commonwealth v. Fewell, 654
A.2d 1109, 1112-13 (Pa. Super. 1995) (quoting Commonwealth v. Kyle, 533 A.2d 120,
128 (Pa. Super. 1987)).
Section 5944 makes clear that the psychotherapist-patient privilege is interpreted
in the same manner as the attorney-client privilege.13 This Court has noted the attorney-
client privilege
13 The pertinent provisions follow:
§ 5916. Confidential communications to attorney
In a criminal proceeding counsel shall not be competent or
permitted to testify to confidential communications made to
him by his client, nor shall the client be compelled to disclose
the same, unless in either case this privilege is waived upon
the trial by the client.
42 Pa.C.S. § 5916.
§ 5928. Confidential communications to attorney
In a civil matter counsel shall not be competent or permitted
to testify to confidential communications made to him by his
client, nor shall the client be compelled to disclose the same,
[J-76-2019] - 11
is grounded in a policy entirely extrinsic to protection of the
fact-finding process; its purpose is to foster a confidence
between client and advocate that will lead to a trusting and
open attorney-client dialogue. As a consequence, the
damage to the administration of justice occurs when the
sanctity of the confidence is improvidently violated, not when
the evidence is given substantive consideration.
Estate of Kofsky, 409 A.2d 1358, 1362 (Pa. 1979) (internal citations omitted); see also
Commonwealth v. Maguigan, 511 A.2d 1327, 1333-34 (Pa. 1986) (same). “The intended
beneficiary is not the individual client so much as the systematic administration of justice
which depends on frank and open client-attorney communication.” In re Search Warrant
B–21778, 521 A.2d 422, 428 (Pa. 1987).
Similarly, the policy goals underlying the psychotherapist-patient privilege is not
dependent on evidentiary value or “protection of the fact finding process.” Rather, it is
designed to strengthen and protect the therapeutic relationship between a patient and his
or her mental health treatment providers, without which the goals of this Commonwealth’s
mental health treatment policies could not be achieved. The United States Supreme
Court, in rejecting application of an evidentiary exception or balancing test between the
interests protected by the State-provided privilege and the fact-finding function of the
federal courts, held “[m]aking the promise of confidentiality contingent upon a trial judge’s
later evaluation of the relative importance of the patient’s interest in privacy and the
evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”
Jaffee, 518 U.S. at 17.
unless in either case this privilege is waived upon the trial by
the client.
42 Pa.C.S. § 5928.
[J-76-2019] - 12
We next recount the development of the harmless error doctrine in this
Commonwealth. In 1978, this Court set forth a unifying standard for applying a harmless
error analysis to errors involving state rules by adopting the same test required by federal
courts for federal constitutional errors in criminal cases. Commonwealth v. Story, 383
A.2d 155 (Pa. 1978). That standard provides that an error may be deemed harmless
“only if the appellate court is convinced beyond a reasonable doubt that the error is
harmless.” Id. at 162; see also Chapman v. California, 386 U.S. 18 (1967). “[A]n error
cannot be held harmless unless the appellate court determines that the error could not
have contributed to the verdict. Whenever there is a reasonable possibility that an error
might have contributed to the conviction, the error is not harmless.” Story, 383 A.2d at
164 (citation and internal quotation marks omitted). Further the burden to establish
harmlessness is placed on the Commonwealth. Id. at 162 n.11. The assignment of the
burden and the beyond-reasonable-doubt standard obviated any need to distinguish
between errors of a constitutional dimension from other types of error. Id.
The Story Court then reviewed the three analytical approaches employed by past
cases to assess whether an error is harmless. The first focuses solely on the prejudicial
impact of the erroneously admitted evidence, finding the error harmless only if such
impact is de minimis. Id. at 164-65. The second approach views whether the improper
evidence, the prejudicial impact of which may not be de minimis, is nevertheless merely
cumulative of properly admitted evidence. Id. at 165. The third analytical approach
reviews whether the overall untainted evidence of guilt is so overwhelming that the
prejudicial effect of the improper evidence could not have contributed to the jury’s verdict.
We held that if using this approach, “a court may rely only on uncontradicted evidence.
[J-76-2019] - 13
The uncontradicted evidence of guilt must be so overwhelming, and the prejudicial effect
of the improperly admitted evidence so insignificant by comparison, that it is clear beyond
a reasonable doubt that the error could not have contributed to the verdict.” Id. at 168.
These principles have been routinely applied in criminal cases.
In relation to civil cases, this Court has explained that the harmless error doctrine
is subsumed in a trial court’s two-step review of motions for new trial. Harman ex rel.
Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000). First a court must review whether an
error occurred, and secondly whether the error warrants a new trial. Id. “The harmless
error doctrine underlies every decision to grant or deny a new trial. A new trial is not
warranted merely because some irregularity occurred during the trial . . .; the moving party
must demonstrate to the trial court that he or she has suffered prejudice from the mistake.”
Id. (citations omitted). Appellate review of a trial court’s decision to grant or deny a motion
for new trial involves a similar two-stage analysis. “First, the appellate court must examine
the decision of the trial court that a mistake occurred. . . . If the appellate court agrees . .
. that a mistake occurred, . . . [t]he appellate court must then determine whether the trial
court abused its discretion in ruling on the request for a new trial.” Id. at 1122-23 (citations
omitted).
Finally, we note the parameters and goals of Act 21 proceedings. Act 21 is a
legislative amendment to the Juvenile Act that provides for assessment of juveniles who
have been adjudicated delinquent for an act of sexual violence and have been subject to
an institutional placement where he or she has remained through his or her 20th birthday.
In passing [Act 21], the Legislature foresaw that some of these
juveniles were sexual offenders (and potential re-offenders) in
need of treatment for their own benefit and for the protection
of the public. The Legislature provided a program of
[J-76-2019] - 14
involuntary civil commitment to serve those needs. In the
absence of such a program, these offenders would
presumably be released outright once they reached age 21.
In re K.A.P., 916 A.2d 1152, 1162 (Pa. Super. 2007), affirmed per curiam, 943 A.2d 262
(Pa. 2008). Thus, while protection of the public constitutes one motivation for its
enactment, at its core Act 21 is about assuring continued, needed mental health
treatment.14
With these legal foundations in mind, we address the issue presented. The
rationale behind the harmless error doctrine is judicial efficiency.
[T]he doctrine of harmless error is a technique of appellate
review designed to advance judicial economy by obviating the
necessity for a retrial where the appellate court is convinced
that a trial error was harmless beyond a reasonable doubt. Its
purpose is premised on the well-settled proposition that “[a]
defendant is entitled to a fair trial but not a perfect one.”
Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (quoting Commonwealth v.
Thornton, 431 A.2d 248, 251 (Pa. 1981).
In Flynn, the Superior Court addressed the appellant’s challenge to the admission
of evidence he claimed was subject to the patient-psychiatrist privilege. Without
determining whether a breach of the privilege in fact occurred, the court held that the
14We recently granted allowance of appeal in another case to address the following
question:
Is Act 21 punitive, such that its retroactive application to
[Petitioner] and its mechanism for determining whether an
individual is a sexually violent delinquent child are
unconstitutional under Commonwealth v. Muniz, 164 A.[3]d
1189 (Pa. 2017) and Commonwealth v. Butler, 173 A.3d 1212
(Pa. Super. 2017)?
In re H.R., 207 A.3d 906 (Pa. 2019). That appeal remains pending. The issues advanced
therein do not preclude our disposition of the issues presented in this appeal.
[J-76-2019] - 15
admission of the evidence, i.e., the psychiatrist’s testimony offered in rebuttal to the
defendant’s insanity defense, if improper, was harmless. Flynn, 460 A.2d at 174-75. In
February 1995, the Superior Court again applied the doctrine to conclude that evidence
admitted in violation of a defendant’s patient-psychiatrist privilege was merely cumulative
of untainted evidence and therefore harmless. Fewell, 654 A.2d at 1115-16. In May of
1995, this Court applied the harmless error doctrine to evidence admitted in violation of
the spousal communication privilege provided for in Section 5914 of the Judicial Code.
Commonwealth v. May, 656 A.2d 1335, 1343 (Pa. 1995). In so doing, we cited Flynn with
approval as an example of the propriety of applying the harmless error doctrine to
evidence admitted over an assertion of privilege. Id.
As noted by the Commonwealth, this Court in Story imposed a high burden to
establish harmless error to avoid erosion of the protections underlying the rules whose
violation is being assessed in individual cases.
But courts must be careful in applying the harmless error rule,
for if the violation of a rule is too readily held harmless, the
importance and effectiveness of the rule is denigrated. We
believe that the “beyond a reasonable doubt” standard
reaches the most reasonable balance between the
consideration of judicial economy and the important policies
which underlie constitutional and non-constitutional rules.
Story, 383 A.2d at 164. Harmless error is not applicable to all types of error. “[O]ur prior
cases have indicated that there are some constitutional rights so basic to a fair trial that
their infraction can never be treated as harmless error[.]” Chapman, 386 U.S. at 23 (citing
as examples coerced confessions, right to counsel, and impartiality of presiding judge).
Such examples are deemed basic to due process and a fair trial. These principles,
however, were designed for and have been applied largely in criminal cases.
[J-76-2019] - 16
Act 21 proceedings present a distinct set of concerns. Act 21 advances the goal
of providing involuntary placement for continued mental health treatment to juveniles
poised to age out of the juvenile system, but who still pose a risk of re-offending due to a
mental defect or abnormality. For such juveniles, mental health treatment is an essential
component of juvenile placement and of any continued placement under Act 21. This
Court has recognized the importance of confidentiality to the therapeutic relationship and
the success of treatment.
In short, treatment of the mentally ill is too important, and the
assurance of confidentiality too central to it, to risk
jeopardizing the whole because of the relevance of some
patient’s statements to some legal proceedings. Virtually
every school of psychotherapy recognizes confidentiality as
the sine qua non of effective therapy.
Matter of Pittsburgh Action Against Rape, 428 A.2d 126, 145-46 (Pa. 1981) (internal
quotation marks and citations omitted).
Of course, it is not contested in this appeal that the trial court erred in failing to
redact privileged communications from the materials provided to the SOAB and included
among the materials relied on by Dr. Stein. It is also true, as pointed out by the
Commonwealth, that aspects of the harm occasioned by the dissemination of J.M.G.’s
privileged communications in this case cannot be undone, whether or not the harmless
error doctrine is employed.15 The evidence in an Act 21 proceeding is, of necessity,
largely dependent on expert testimony. In this case, the privileged communications were
not admitted as evidence on their own, but were part of the materials relied on by the
Commonwealth’s witness in formulating an opinion. The evidence admitted was Dr.
15For example, the substance of many of J.M.G.’s privileged statements are described in
the judicial opinions below, which are public records.
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Stein’s report and opinion testimony. Thus, the harmless error analysis engaged in by
the Superior Court majority below did not involve assessing the balance of untainted
evidence under any of the approaches described above, i.e., absence of prejudice,
cumulative evidence, or prejudice outweighed by other uncontradicted evidence, but was
an exercise in sussing out what the expert opinion would have been, absent consideration
of the privileged communications.
We conclude, contrary to the Commonwealth’s assertion, however, that the harm
to the therapeutic relationship and the efficacy of mental health treatment that Section
5944 is designed to protect, is not entirely tangential to the factual burden in Act 21
proceedings. A primary purpose of Act 21 is to provide continued mental health treatment
to a class of juvenile offenders. Id. The success of mental health treatment, including
the willingness of the juvenile to cooperate with treatment, to be open and candid in
communicating with the psychotherapist, and to trust in treatment recommendations, is
dependent on the confidentiality protected by the privilege set forth in Section 5944.
Erosion of the privilege can only complicate and adversely affect the fundamental
rehabilitative goals of the juvenile system and any treatment ordered under Act 21.
Similar to the types of constitutional errors the United States Supreme Court has deemed
so basic to a fair trial that application of the harmless error doctrine is inappropriate, we
deem scrupulous adherence to the psychotherapist-patient privilege to be basic to fair
Act 21 proceedings. See, e.g. Chapman, 386 U.S. at 23. Accordingly, we hold that the
harmless error doctrine is not applicable to violations of Section 5944 psychotherapist-
patient privilege in Act 21 proceedings.
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Finally, we address J.M.G.’s claim that the proper remedy, should this Court
reverse the Superior Court’s decision, would be “to [o]rder the trial court to release
[J.M.G.] from any further civil commitment pursuant to Act 21.” J.M.G.’s Brief at 22.
Although he describes the violation of his privilege in this case as “egregious,” he provides
no legal support or analysis to support his position. To the contrary, we conclude it would
be counterproductive to the purposes of Act 21 and J.M.G.’s juvenile placement to
foreclose further involuntary inpatient commitment in this case, if such would serve the
interests of J.M.G.’s treatment needs and public safety concerns. While we have held
that the consideration by the Commonwealth’s expert witness of privileged
communications in developing his report and testimony of his opinion in this case has
rendered the trial court’s order invalid, we have not concluded the Commonwealth would
be incapable of meeting its burden upon a review of the untainted materials provided to
the SOAB. To that end, a reconsideration by personnel of the SOAB not previously
involved in the review of this matter, of properly redacted records is appropriate, together
with such additional proceedings that review may generate. See J.M.G., 154 A.3d at *9.
Judgment of the Superior Court is reversed. The case is remanded for further
proceedings in accordance with this opinion.
Chief Justice Saylor and Justices Donohue, Dougherty and Wecht join the
opinion.
Justice Baer files a concurring opinion in which Justice Todd joins.
Justice Todd files a concurring opinion in which Justice Baer joins.
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