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Commonwealth v. King

Superior Court of Pennsylvania

July 12, 2017


         Appeal from the PCRA Order October 7, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0706191-2005



          FITZGERALD, J.

         The Commonwealth appeals under Pa.R.A.P. 313 from an order precluding it from interviewing Appellee Jerome King's trial counsel ("trial counsel") ex parte in advance of a Post Conviction Relief Act ("PCRA")[1] hearing. The Commonwealth claims it has the right to interview trial counsel before the hearing because Appellee's claim of ineffective assistance constitutes a waiver of the attorney-client and work-product privileges. We conclude that we have jurisdiction to decide this appeal under the collateral order doctrine embodied in Rule 313. We further hold that any privilege waiver is limited to issues relevant to Appellant's ineffectiveness claim, and that the Commonwealth's proposed ex parte interview with trial counsel risks disclosure of information outside the scope of this waiver. Thus, we affirm the PCRA court's order as a proper exercise of its discretion to protect against disclosure of potentially privileged or confidential information.

         Appellee was charged with murdering Nathaniel Giles in retaliation for providing incriminating information about Appellee to law enforcement officials. During trial, the Commonwealth introduced evidence that in July 2004, Giles admitted to a federal special agent that he, Giles, purchased a .45 caliber handgun for Appellee because Appellee could not pass the requisite background check. A member of Appellee's gang, known as "Lemon's Squad, "[2] shot and killed a young child with the handgun. On February 5, 2005, Giles was standing outside a restaurant in North Philadelphia with Khalief Alston, another member of Lemon's Squad, when Appellee and co-defendant Esheem Haskins ambushed Giles from behind. Appellee shot Giles in the head and back, killing him, and Appellee and Haskins fled the scene together. N.T., 6/16/06, at 217.

         Two teenage patrons of the restaurant testified that they saw Appellee shoot Giles. Alston testified for the defense that the actual killer was another man, Ernest Cannon.

         On April 9, 2005, two police detectives were in the neighborhood where the crime took place, speaking with another member of Lemon's Squad, when Appellee approached them and said in a joking manner: "Stop messing with my man." N.T. 6/20/06, at 174. Appellee was wearing a black t-shirt with a red stop sign on the front that said: "Stop Snitching." Id. at 175. One detective asked whether the shirt was a warning to people. Appellee "kind of smiled and said 'Yes, '" and gestured to the top rear of his shirt, which displayed a tombstone bearing the acronym "R.I.P." Id. The detective inquired: "'Is that what happens to people who snitch on you?'" Id. Appellee again answered, "Yes." Id. About twenty minutes later, the detectives returned to the same street corner and observed Haskins wearing an identical "Stop Snitching" t-shirt. Id. 178-89.

         On May 6, 2005, the police arrested Appellee and Haskins. On September 23, 2006, the jury found Appellee guilty of first degree murder, criminal conspiracy, violating the Uniform Firearms Act and possessing an instrument of crime.[3] The trial court sentenced Appellee to life plus twenty years' imprisonment. Appellee filed a timely direct appeal, and on October 17, 2008, this Court affirmed his judgment of sentence. See Commonwealth v. King, 959 A.2d 405 (Pa. Super. 2008). Appellee did not petition our Supreme Court for allowance of appeal.

         On October 9, 2009, Appellee filed a timely PCRA petition pro se, and the court appointed PCRA counsel. On June 10, 2010, before filing an amended petition, PCRA counsel wrote to trial counsel "to discuss the various claims [that Appellee] intends to raise in [his] amended PCRA petition to be filed in two weeks." On June 14, 2010, having received no reply, PCRA counsel telephoned trial counsel, who allegedly stated: "You're nuts if you think I'm gonna help you." On the same date, PCRA counsel wrote to trial counsel asking him to reconsider his position. In addition, PCRA counsel advised that as part of trial counsel's continuing duty of loyalty to Appellee, he should not "speak[] or shar[e] any information with [Commonwealth] representatives." See Appellee's Motion To Preclude Commonwealth From Conducting Out-of-court Interview Of Trial Counsel In Advance Of Evidentiary Hearing ("Motion To Preclude"), 9/16/15 (attaching as exhibits communications between PCRA counsel and trial counsel); Appellee's Motion For Leave To Examine Trial Counsel With Leading Questions ("Motion To Examine"), 9/19/15, at 2 and Exhibits A-C (describing communications between PCRA counsel and trial counsel and attaching communications as exhibits).

         On July 2, 2010, PCRA counsel filed an amended PCRA petition alleging, in part, that trial counsel was ineffective for failing to object to admission of a prior bad act and requesting a cautionary instruction. In a letter dated July 16, 2010, trial counsel wrote: "Be advised that I will not be cooperating with you in preparing the above matter. If there are further questions, contact the Philadelphia District Attorney's office." Motion To Preclude, Exhibit D.

         The PCRA court issued a Pa.R.Crim.P. 907 notice. Appellee filed a supplemental amended PCRA petition raising, inter alia, an additional claim under Brady v. Maryland, 373 U.S. 83 (1963).

         On July 5, 2011, the PCRA court granted Appellee and Haskins a new trial on the ground that the Commonwealth violated Brady by failing to disclose a letter in which Alston blamed Cannon for the murder. On December 20, 2012, this Court reversed the PCRA court's order in a published opinion, holding that the letter did not meet Brady's materiality standard because it would not have been reasonably likely to change the outcome of trial. See Commonwealth v. Haskins, 60 A.3d 538, 551-52 (Pa. Super. 2012). On October 29, 2013, our Supreme Court denied Appellee's petition for allowance of appeal.

         The case returned to the PCRA court, which denied Appellee's remaining claims on August 29, 2014 without holding an evidentiary hearing. On July 28, 2015, this Court affirmed in part but remanded for an evidentiary hearing on Appellee's claim that trial counsel provided ineffective assistance by not requesting a limiting instruction as to "other acts" evidence. Commonwealth v. King, No. 2533 EDA 2014 (Pa. Super. July 28, 2015) (unpublished memorandum).

         On August 8, 2015, as the case neared an evidentiary hearing on Appellee's claim of ineffective assistance, PCRA counsel wrote to trial counsel asking whether he had a strategic reason for not requesting a cautionary jury instruction concerning "other acts" evidence introduced during trial. Trial counsel did not respond. PCRA counsel left two messages on trial counsel's answering machine asking him to respond to the August 8, 2015 letter. Once again, trial counsel did not respond. By letter dated August 28, 2015, PCRA counsel again asked trial counsel to respond to the August 8, 2015 letter. Yet again, trial counsel did not respond. See Motion To Preclude, at 2; Motion To Examine, at 2-3 & Exhibits E-F.

         On September 16, 2015, Appellee filed the motion presently under review requesting that the District Attorney be precluded from interviewing trial counsel ex parte. Appellee argued that a preclusion order was necessary to prevent trial counsel from disclosing privileged or confidential information that Appellee shared with trial counsel during his representation. Later that day, the chief of the District Attorney's PCRA unit sent the following email to PCRA counsel: "[The assistant district attorney assigned to the case] is out of the office. She has already contacted [trial counsel]. We will not honor your request-as we believe it is entirely misguided-absent an express judicial order." Motion To Examine, Exhibit G.

         On September 29, 2015, the Commonwealth filed a response to Appellee's motion to preclude, arguing that it was standard practice for the District Attorney to prepare for PCRA hearings relating to trial counsel's ...

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