Commonwealth v. Patosky

Superior Court of Pennsylvania · 1995 · Evidence

440 Pa. Super. 535 (1995)

Updated August 22, 2026

Evidencepsychiatric recordspsychotherapist privilege42 Pa.C.S. § 5944confrontationcompulsory processdue processseparation of powers

Facts

The victim testified that while she and appellant were in a break room at their workplace, appellant pulled her toward a cot, pinned her down, unbuckled her belt, unzipped her pants, rubbed her breasts, and kissed the crotch area of her pants despite her protests. She did not report the incident until almost two months later. At trial, appellant sought access to her psychiatric records, and the court denied that request. The Commonwealth also introduced testimony about appellant's prior off-color remarks, rebuttal reputation testimony, and testimony that the victim appeared extremely distraught and nervous when she eventually reported the incident.

Issue

Whether the trial court erred by denying appellant access to the victim's psychiatric records under 42 Pa.C.S. § 5944, by admitting impeachment and rebuttal evidence concerning appellant's prior off-color comments and reputation for peacefulness, by admitting evidence of the victim's demeanor when she made a delayed complaint, and by refusing appellant's requested jury instructions on those matters.

Rule

Under 42 Pa.C.S. § 5944, confidential communications and information acquired in the course of psychiatric or psychological treatment are absolutely privileged and not subject to disclosure without the client's written consent; denial of access to such records does not violate a defendant's rights to confrontation or compulsory process. A defendant who opens the door to an otherwise objectionable subject may be contradicted with extrinsic evidence if the inconsistency is not collateral to the issues in the case. Relevant evidence is admissible unless barred by a specific rule, and nonverbal demeanor not intended as a communication is not hearsay. A prompt-complaint instruction is sufficient if it correctly tells the jury that delay may bear on credibility and whether the act occurred, but is not conclusive.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a felony assault prosecution in Scranton, Dana Mercer claims the complaining witness recently discussed the incident with a licensed psychologist and that the treatment notes may contain inconsistencies. The witness refuses to sign any release, and Dana asks the trial judge to review the notes in camera to decide whether any parts should be disclosed for impeachment.

How should the court rule?

Explanation. The majority treated 42 Pa.C.S. § 5944 as creating an absolute privilege covering information acquired in the course of psychiatric or psychological treatment, absent the client's written consent. The court also held that denying access does not violate confrontation or compulsory process. On that reasoning, even in camera review is not required.