J. S41024/16
2016 PA Super 201
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
MYRON PUKOWSKY, :
Appellant :
: No. 3097 EDA 2015
Appeal from the Judgment of Sentence December 5, 2014,
In the Court of Common Pleas of Montgomery County
Criminal Division No(s): CP-46-CR-0003452-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY DUBOW, J.: FILED SEPTEMBER 08, 2016
Appellant, Myron Pukowsky, appeals from the December 5, 2014
Judgment of Sentence entered in the Montgomery County Court of Common
Pleas. After careful review, we conclude that the trial court did not abuse its
discretion in finding the minor victim competent to testify and in finding that
letters written by Appellant to his daughter were not subject to the
psychotherapist-patient privilege. We also conclude that Appellant waived
his third allegation of error by failing to raise it with sufficient specificity in
his Pa.R.A.P. 1925(b) Statement. We, therefore, affirm.
The trial court stated the relevant facts and procedural history as
follows:
L.P. is [Appellant’s] daughter. Back in November 2007, when
L.P. was five-years-old, she lived in Royersford, Montgomery
*
Former Justice specially assigned to the Superior Court.
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County, with her mother, A.B., and her younger brother.
[Appellant] had lived in the home with the family as well, but at
the time was residing in a drug and alcohol rehabilitation center.
A.B. had to travel to Virginia for a few days for work. Beth Ann
Fisher, who lived with her family across the street from L.P.,
agreed to watch her and her younger brother.
One evening during dinner, L.P. told Fisher that her father had
"dirty hands" and that he put his hands in her pants. Fisher
eventually telephoned A.B., who returned from Virginia and
made arrangements for L.P. to meet with psychotherapist Laura
Weissflog. Weissflog met with L.P. and recorded an interview
with the child. A report subsequently was made to the
Montgomery County Office of Children and Youth ("OCY").
Elaine Reape, a supervisor with the Montgomery County Office of
Children and Youth, eventually spoke with L.P. The child stated
that [Appellant] had touched her "bum" while they lived in
Philadelphia and touched her "fanny" on more than one occasion
at the Royersford home.
A.B. subsequently had a conversation with L.P. during which A.B.
asked if [Appellant] had touched her. L.P. said [Appellant] had
touched the inside and outside of her "fandango," which A.B.
said is a term L.P. had used to describe her vaginal area. She
indicated the touching had occurred on more than one occasion
at the home in Royersford, as well as in the family's prior
residence in Philadelphia.
[Appellant], who had since returned from the rehabilitation
facility, did not go back to live at the Royersford home; he
instead took up residence at a nearby hotel. He also began
sessions with psychologist John Gentry. A.B. attended some of
the sessions at the request of [Appellant’s] family, but she
eventually stopped going because it was too emotionally
traumatic.
[At the suggestion of Dr. Gentry, Appellant] drafted a letter he
planned to give to L.P., apologizing to her and explaining that at
the time he touched her he was dealing with alcohol and drug
issues. It does not appear that he ever gave the letter to the
child.
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Charges were not filed against [Appellant] in the wake of the
2007 allegations. [Appellant] did not return to live with the
family at the Royersford home and over time fell out of contact
with them.
A.B.'s new boyfriend eventually began living with her and her
children. In March 2013, while cleaning out a bedroom in the
Royersford home in anticipation of the boyfriend's son coming to
live with them, the son found an envelope on a bookshelf among
a pile of books and paperwork [Appellant] had left behind. The
son gave the envelope to A.B. The envelope[] contained the
letter[s] [Appellant] had drafted to L.P. back when he was in
therapy with Dr. Gentry, as well as what appeared to be a draft
version. A.B. knew there had been some discussions during the
therapy about [Appellant] writing the letter, but had never seen
it before.
[Appellant] subsequently was charged with three counts of
unlawful contact with minor, three counts of aggravated indecent
assault, one count of endangering the welfare of a child, three
counts of indecent assault of a person less than 13 and one
count of corruption of minors. He filed a pre-trial motion for
competency hearing, claiming L.P.'s recollections of the minor
victim had been tainted by her conversations with adults. He
sought to bar testimony from L.P. and the adults who had
spoken with her about the incidents. He also moved to suppress
the letters on the ground they were prepared in connection with
his therapy with Dr. Gentry. [The trial court] denied the motions
after a hearing.
The matter proceeded to a jury trial at which Weissflog, Fisher,
A.B., L.P. and Reape testified for the Commonwealth and Dr.
Gentry testified for the defense. The jury found [Appellant]
guilty of two counts of aggravated indecent assault, two counts
of indecent assault of a person less than 13 and corruption of
minors.
[Appellant] subsequently became represented by new counsel
and was sentenced in open court on December 5, 2014. The
record from the sentencing hearing indicates that [Appellant]
was advised of his post- sentence rights. He did not file a post -
sentence motion. He filed a notice of appeal on January 6,
2015, which the Pennsylvania Superior Court quashed as
untimely.
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On July 22, 2015, [Appellant] filed a Post Conviction Relief Act
Petition for Allowance of Appeal Nunc Pro Tunc. The Superior
Court remitted the record on September 11, 2015. [The trial
court] subsequently granted [Appellant’s] petition and he filed a
notice of appeal nunc pro tunc. He then complied with this
court's directive to produce a concise statement of errors in
accordance with Pennsylvania Rule of Appellate Procedure
1925(b).
Pa.R.A.P. 1925(a) Opinion, dated 12/9/15, at 1-4 (footnotes omitted).
In his Brief to this Court, Appellant raises the following three issues in
the Statement of Questions Involved:
1. Did the trial court err when it ruled that the testimony of the
victim was not tainted by the person who first heard her
complaint, Beth Anne Fisher, and the person who conducted her
first interview, Laura Weissflog?
2. Did the trial court err when it ruled that letters penned by the
defendant at his treating psychologist's request were not
protected by privilege, where no explicit waiver of the privilege
was executed?
3. Did the court err in limiting the testimony of Dr. John Gentry,
where he was offerring (sic) factual, non-expert testimony?
Appellant’s Brief at 6.
Each of Appellant’s allegations of error challenge the admission of
evidence at trial. “Questions regarding the admission of evidence are left to
the sound discretion of the trial court, and we, as an appellate court, will not
disturb the trial court's rulings regarding the admissibility of evidence absent
an abuse of that discretion.” Commonwealth v. Russell, 938 A.2d 1082,
1091 (Pa. Super. 2007) (citation omitted). An abuse of discretion is more
than a mere error of judgment; rather, an abuse of discretion will be found
when “the law is overridden or misapplied, or the judgment exercised is
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manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record.” Commonwealth v. Busanet,
817 A.2d 1060, 1076 (Pa. 2002) (citation and quotation omitted).
Testimony of L.P.
In his first issue, Appellant alleges the trial court erred in permitting
the victim, L.P., to testify over Appellant’s objection because her testimony
had been tainted by the adults to whom she had initially disclosed the
abuse. Specifically, Appellant alleges that the bias of L.P.’s mother, the bias
of Fisher, and the “guided and suggestive” questioning by Weissflog each
tainted L.P.’s testimony, rendering her incompetent to testify. Appellant’s
Brief at 14-20.
As with other evidentiary rulings, “the determination of competency is
a matter for the sound discretion of the trial court, which will not be
disturbed absent a clear abuse of that discretion.” Commonwealth v.
D.J.A., 800 A.2d 965, 970 (Pa. Super. 2002). As the trial court noted in its
Rule 1925(a) Opinion and at the hearing on L.P.’s competence:
Before a witness under the age of 14 may testify, Pennsylvania
requires the examination of the witness for competency. See
Commonwealth v. Moore, 980 A.2d 647, 649-50 (Pa. Super.
2009). When faced with a claim that a child victim is not
competent to testify because her recollections may have been
tainted; trial courts should conduct an inquiry into whether the
child has an independent memory of the event.
Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003). That
inquiry should focus on “the mental capacity to observe the
occurrence itself and the capacity of remembering what it is that
[the witness] is called upon to testify about.” Id. at 40 (citation
omitted). The party alleging a child victim's memories have
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been tainted carries the burden of producing evidence and the
burden of proof by clear and convincing evidence. Id.
Defendant alleged in a pre-trial motion for a competency hearing
that L.P.’s recollections had been tainted because the incidents
occurred during a period of marital stress between himself and
A.B. He also argued that L.P.’s memories had been tainted by
discussions she had with A.B., Officer O’Keefe, Weissflog and
Elaine Reape.
This court conducted a hearing at which Beth Ann Fisher, Reape
and A.B. testified. Following their testimony, this court made
the following determination, which it incorporates here by
reference:
[Appellant] has failed to demonstrate evidence of
taint that would render the victim incompetent to
testify.
The Court has reviewed the circumstances
surrounding the revelation--the totality of the
circumstances surrounding the revelation of the
allegations of sexual abuse, including the manner the
victim's alleged allegations of abuse surfaced and
were investigated.
The Court finds that the testimony of the neighbor,
Beth Ann Fisher, was credible regarding the victim's
revelation of sexual abuse and that Ms. Fisher's
subsequent—and the spontaneity of that response—
or that revelation and comment by the victim and
the subsequent conversations that Ms. Fisher had
with the victim about the revelation of sexual abuse I
felt was free from any type of corruption,
suggestiveness or coerciveness of the victim's
memory of the abuse.
The Court finds the same is true of the discussion
the victim's mother, [A.B.], had with her upon
hearing the revelation of sexual abuse from Ms.
[Fisher].
I did not hear any testimony about the volatility of
their relationship or any factors about anything more
than they were in the process of divorce litigation
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that would in any way, shape or for[m] taint the
testimony of the alleged victim.
The fact that they are in divorce litigation and the
fact that [A.B.] was a victim of sexual abuse herself
in no way caused [A.B.] to implant any kind of false
memories or distortions or the real memories of her
daughter regarding the alleged sexual abuse by the
defendant that would in any way, shape or form
render this alleged victim incompetent to testify.
That was never even--we don’t even know what type
of sexual abuse--sexual abuse in and of itself in my
mind doesn't taint the testimony of the alleged
victim, the mother's sexual abuse, having been a
victim of sexual abuse.
The Court also finds that the interview techniques of
Ms. Weissflog, although this might be--she is not the
most proficient in what she is doing, she certainly
has the education and has a master’s--the focus of
her master's was in dealing with children that are
victims of alleged sexual abuse.
I agree with the Commonwealth that the question
was not a leading question, but a direct question. I
don’t think they were suggestive or coercive
questions to the victim that tainted her testimony or
corrupted her testimony or responses in any way,
shape or form.
I felt actually after reviewing the video and reading
the transcript that Ms. Weìssflog’s questioning of the
victim was rather gentle, open-ended, and
appropriate. She is five years old.
And certainly, if there were any mild taint at all, as
Mr. Kravitz argues, or if you could characterize it
that way, it is not enough to render her incompetent
to testify.
So the Court finds that the alleged victim is
competent to testify. There is no—her testimony
was not tainted in any way, shape or form.
Trial Court Opinion, filed 12/10/15, at 7-9 (quoting N.T., 4/7/14, at 73-76).
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After a careful review of the record, and under our standard of review,
we conclude that the trial court did not abuse its discretion in finding L.P.
competent to testify at trial.
Appellant’s Letters to L.P.
Appellant next contends that the trial court erred in admitting into
evidence the letters he prepared apologizing to L.P. because, Appellant
avers, those letters were protected by psychologist-patient privilege.
Because we conclude that the letters were not a confidential communication
from Appellant to his psychologist, we find Appellant is not entitled to relief
on this claim.
The legislature has codified the basic rule governing the psychologist-
patient privilege as follows:
No psychiatrist or person who has been licensed . . . 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.
42 Pa.C.S. § 5944. See also Daniel J. Anders, Ohlbaum on the
Pennsylvania Rules of Evidence §§ 501.06, 501.14 (2016 ed. LexisNexis
Matthew Bender).
The privilege acts to bar testimony by the treating psychologist or
psychiatrist, as well as the disclosure of certain records. Commonwealth
v. Smith, 606 A.2d 939, 941-42 (Pa. Super. 1992). While documents
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prepared during the course of treatment may sometimes fall within the
privilege, Section 5944 “pertains only to confidential communications
between psychiatrists or psychologists and their patients/clients that were
made in the course of treatment, not to all records and documents regarding
mental health treatment.” Gormley v. Edgar, 995 A.2d 1197, 1204 (Pa.
Super. 2010). This Court has previously held that the privilege codified in
Section 5944 does not extend to reports or other documents that “do not
contain any communications” made by to patient to the psychotherapist.
Gates v. Gates, 967 A.2d 1024, 1029 (Pa. Super. 2009). In evaluating
whether the privilege should apply to certain statements, courts must look
to “the purpose and circumstances under which the declarant made them.”
In re T.B., 75 A.3d 485, 496 (Pa. Super. 2013).
In the instant case, Appellant presented no evidence showing that
Appellant intended the letters to be a confidential communication from
Appellant to his psychotherapist, Dr. Gentry. Instead, the testimony clearly
indicated that sharing the letters with Dr. Gentry was incidental to
Appellant’s true purpose in writing them: to communicate with the victim as
a means of apology and an attempt at reconciliation. N.T., 4/7/14, at 35,
40, 45, 48.
Although Dr. Gentry read and wrote comments on at least one draft of
the letter, there is no evidence suggesting Dr. Gentry was the intended
recipient of the letter. Rather, Appellant shared the letters with Dr. Gentry
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so that he might proofread them and help Appellant better express his
feelings to the victim. N.T., 4/7/14, at 35, 45, 47. In fact, the final draft of
the letter, which Appellant abandoned in the victim’s home, was never even
shown to Dr. Gentry. N.T., 4/7/14, at 36.
In his Brief to this Court, Appellant concedes that “[t]he purpose of the
letter [was] to present it to [L.P.].” Appellant’s Brief at 22. We do not read
Section 5944 to be so expansive as to permit Appellant to make otherwise
unprivileged communications privileged by submitting them to his
psychotherapist for edits. Following our guidance in In re T.B., and under
these facts, we conclude that the letters were not prepared with the purpose
of making a confidential communication to a psychotherapist and do not fall
within the privilege. In re T.B., supra at 496. Therefore, we conclude that
the trial court did not err in admitting the letters into evidence.
The Testimony of Dr. Gentry
In his third issue, Appellant avers that the trial court erred in limiting
the testimony of defense witness Dr. John Gentry. As Appellant’s Pa.R.A.P.
1925(b) Statement is impermissibly vague, we find this argument waived.
An appellant’s Rule 1925(b) Statement “shall concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). A Rule
1925(b) statement “which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no [Rule 1925(b)]
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Statement at all,” and will result in waiver. Lineberger v. Wyeth, 894 A.2d
141, 148 (Pa. Super. 2006).
In his Rule 1925(b) Statement, Appellant stated the alleged error
regarding Dr. Gentry’s testimony as follows:
The Court erred in limiting the testimony of Appellant’s treating
physician, as both a fact witness and an expert witness. Said
limitations were highly prejudicial to Appellant, and violative of
his due process rights.
Pa.R.A.P. 1925(b), filed 1/27/15, at 2.1
As the trial court so aptly explained:
[Appellant’s Rule 1925(b) Statement] does not inform this court
with any specificity about the portion of Dr. Gentry’s testimony
that was improperly limited. The Commonwealth raised several
objections during Dr. Gentry’s testimony, some of which were
sustained. This court should not have to guess as to which
objection or objections [Appellant] is referring.
Trial Court Opinion, filed 12/10/15, at 12.
We are in agreement with the trial court, and conclude that Appellant
waived this claim by failing to state it with sufficient specificity.
Having concluded that Appellant is not entitled to relief on any of the
issues raised, we affirm the December 5, 2014 Judgment of Sentence.
Judgment of Sentence Affirmed. Jurisdiction relinquished.
President Judge Emeritus Bender joins the opinion.
1
Presumably recognizing that (i) Dr. Gentry is not a physician and (ii)
Appellant never offered him as an expert witness, Appellant reframed the
issue slightly in his Brief to this Court. See Appellant’s Brief at 6 (asking
“[d]id the trial court err in limiting the testimony of Dr. John Gentry, where
he was offering factual, non-expert testimony?”).
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President Judge Emeritus Stevens Concurs in Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2016
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