Commonwealth v. Cook

231 A.3d 913

COMMONWEALTH of Pennsylvania, Appellant

v.Charles COOK

No. 424 WDA 2019

Superior Court of Pennsylvania.

Argued October 23, 2019

Filed April 7, 2020

Geoffrey D. Kugler, Assistant District Attorney, Indiana, for Commonwealth, appellant.

Aaron F. Ludwig, Indiana, for appellee.

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

OPINION BY OLSON, J.:

The Commonwealth of Pennsylvania appeals as of right, under Pennsylvania Rule of Appellate Procedure 311(d), from the order entered on March 7, 2019. Among other things, the pre-trial, March 7, 2019 order excluded from evidence a patient record and testimony regarding certain statements that Charles Cook ("Cook") made while he was involuntarily committed at a Minnesota mental health treatment center. We vacate in part and remand.

On December 13, 1991, the Pennsylvania State Police ("PSP") began investigating the murder of Myrtle Louise McGill. In October 2016, Cook was arrested for Ms. McGill's murder and, on May 30, 2017, the Commonwealth filed an information, which charged Cook with criminal homicide and robbery in relation to Ms. McGill's murder.¹

In preparation for trial, the Commonwealth filed a motion in limine . In relevant part, the Commonwealth's motion in limine requested that the trial court rule admissible, for trial, a patient record and testimony pertaining to certain statements Cook made while he was involuntarily committed at a mental health treatment center, named the Saint Peter Regional Treatment Center, located in Saint Peter, Minnesota. Specifically, the Commonwealth's motion declared:

1. In 2016, [Cook] was involuntarily committed to the Saint Peter Regional Treatment Center in Saint Peter, Minnesota.

2. During [Cook's] involuntary commitment at the Saint Peter Regional Treatment Center, Mr. Jeffery R. Brunz [hereinafter "Security Counselor Brunz") ] was a Security Counselor at the facility.

3. While [Cook] was committed to the facility, [Security Counselor Brunz] overheard comments made by [Cook].

4. The Commonwealth wishes to admit the mental health records of [Cook], specifically notes authored by [Security Counselor Brunz], with regard to the time period in which he was involuntarily committed to the Saint Peter Regional Treatment Center.

5. The Commonwealth [also] wishes to admit the testimony of [Security Counselor Brunz] about what he overheard or witnessed with regard to [Cook].

Commonwealth's Motion in Limine , 1/11/19, at 12.

Cook also filed a motion in limine , where he sought an order excluding all evidence related to what Security Counselor Brunz heard him say in the Saint Peter Regional Treatment Center. See Cook's Motion in Limine , 1/11/19, at 1-2. According to Cook, all such statements "are privileged under 42 Pa.C.S.A. § 5944, which governs confidential communications to psychiatrists or licensed psychiatrists, and are therefore shielded from discovery." Id. at 1.

On January 18, 2019, the trial court held a hearing on the motions in limine . During the hearing, the Commonwealth introduced the relevant record from the Saint Peter Regional Treatment Center that it wished to admit during trial. See N.T. Motion in Limine Hearing, 1/18/19, at 65-68. In pertinent part, the record declares:

Minnesota Department of Human ServicesDirect Care and TreatmentProgress Notes
...
Patient Name: COOK, CHARLES...	Episode: (...COMPETENCY RESTORATION PROGRAM)
Birth Date: 8/31/1955	Discharge Date: 12/12/[16]
Admit Date: 8/18/2016	Date of Note: 10/23/2016
Written By: Brunz, Jeffery R	Date of Service: 10/23/[16]
Note Type: Security Counselor

Progress Note

107: Emotional State: At approximately 3:25 p.m. while in the library, writer over heard [Cook] talking to [Cook] #14945 about his past. [Cook] stated that he was living in Philadelphia and that he was on the run back in 1991. [Cook] stated "I killed some one" and went on to say "I was in a bar all fucked up." [Cook] then went on to talk about the soul, a lost spirit and that a body was moved. Writer heard [Cook] state something had happened back in 1995, but could not make out what [Cook] was talking about. [Cook] stated that it is "scary thinking about living the rest of your life in prison, it is like walking dead." [Cook] stated "never should have committed the crime." [Cook] then went on to say the system is more corrupt [than] the crime itself. [Cook] said "stab yourself in the artery and bleed out." [Cook] said that he was on his way to Pennsylvania when his van broke down. [Cook] said "DNA might be there, but can't prove it." [Cook] stated that this has been on his mind. [Cook] stated he had to get out of that town, so he took off before they could put a hit on him. Writer also heard [Cook] say twice "joe's dead." Writer could only make out parts of the conversation as [Cook] was talking quietly. Will continue to monitor.

...

Practitioner : BRUNZ, JEFFERY R ...

Electronically authenticated by : JEFFERY BRUNZ, Security Counselor on 10/23/2016 at 05:04 PM

Id. at Commonwealth's Exhibit 5.

At the time Cook made his statements, Cook was a patient of the Minnesota facility under an involuntary commitment order.² Id. at 72.

On February 25, 2019, the trial court issued an order that, among other things, excluded from evidence the "record[ ] and testimony concerning statements made by [Cook] while a patient at St. Peter's Regional Treatment Center." Trial Court Order, 2/25/19, at 2 (some capitalization omitted).

On March 1, 2019, the Commonwealth filed a motion for reconsideration of the February 25, 2019 order. Within this motion, the Commonwealth claimed that Cook's statements were not confidential under 42 Pa.C.S.A. § 5944, as they "were made to a fellow patient and not to a psychologist, psychiatrist, or any agent of a psychologist or psychiatrist" and Security Counselor Brunz "simply overheard [Cook] talking to his fellow patient in a common area." Commonwealth's Motion for Reconsideration, 3/1/19, at 7. On March 1, 2019, the trial court expressly granted reconsideration of its February 25, 2019 order and scheduled a March 4, 2019 hearing on the reconsidered motions in limine . Trial Court Order, 3/1/19, at 1.

During the March 4, 2019 hearing, the trial court heard testimony from Security Counselor Brunz. Security Counselor Brunz testified that, in October 2016, he was "a security counselor with the Competency Restoration Program ... at the Minnesota State Hospital." N.T. Reconsideration Hearing, 3/4/19, at 6. He testified that his job as a security counselor was "basically and primarily [as] a security guard." Id. Specifically, he testified, the job of a security counselor encompassed the following:

[w]e ensure[d] the safety and security of the facility, primarily for all staff and the patients. We conducted regular rounds throughout our unit documenting what each patient was doing at the time of our rounds. We would count patients for their medications and meals, to attend their groups and for activities that they [chose] to attend. We would also make sure that they were taking their medications by doing mouth checks at the med window when they would come up. We would also be observing their actions and behaviors while they were on the unit and also when they would attend other activities and we would document accordingly.

Id. at 6-7.

As to the portion of his job where he "observed [the patients’] behavior," Security Counselor Brunz testified that this was done:

[j]ust to maintain safety for everyone on the unit primarily. If there was any odd behaviors it could be related to, like, medical condition, whether it's a medical reaction or a psychological break. If we would notice any odd behaviors, we would let, like, the nurses know ... and then the nurses would handle from there.

Id. at 7.

He further testified that, as a security counselor: he did not actually administer the medications, he just made sure the patients were not hiding the medications under their tongues or in their cheeks; he did not have any input into the types of medications the patients received; and, while he would be present during group meetings and group interactions, he was merely an observer and his primary role during this time was security. Id. at 8-9.

Security Counselor Brunz testified that he heard Cook's relevant statements in October 2016 while they were in the facility's library, where patients were permitted (but not required) to go. Id. at 12. He described the library in the following manner:

the library was a large room off of the unit. Around the outer edge of the library was a bunch of shelves with books that the clients or patients could check in and out. In the center of the room on one end would be like a computer station where there was four to six computers that clients could use whether they wanted to play games or listen to music on it and then on the other side there would have been a couple couches, lounge chairs, coffee table if they chose to sit down and read or talk.

Id. at 10-11.

He testified that group therapy sessions were not held in the library and that no doctors or nurses were present in the library when Cook made his statements. Id. at 12 and 18.

As Security Counselor Brunz testified, Cook made his statements to another patient, while Cook and the other patient were sitting together on a couch. Id. at 14. At the time, Security Counselor Brunz was seated approximately six or seven feet away from the couch upon which Cook and the other patient were sitting and Cook was "aware that [Security Officer Brunz was] present when this conversation was happening." Id. at 14 and 17. Security Counselor Brunz testified that Cook's statements were made during the course of a private conversation between Cook and the other patient, and that Security Counselor Brunz was not a part of the conversation. Id. at 14-15. Security Counselor Brunz also testified that the conversation between Cook and the other patient was at a "quiet" volume level. Id. at 16.

Security Counselor Brunz testified that, when he overheard Cook "talk about his...