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Commonwealth v. King

Supreme Court of Pennsylvania

July 17, 2019

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
JEROME KING, Appellee

          SUBMITTED: January 15, 2019

          Appeal from the Judgment of Superior Court entered on July 12, 2017 at 3251 EDA 2015 (reargument denied September 13, 2017) affirming and remanding the PCRA Order entered on October 715 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0706191-2005.

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ

          OPINION

          BAER JUSTICE

         Jerome King ("Appellee") timely filed a petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, claiming, inter alia, that he is entitled to a new trial because his trial counsel rendered ineffective assistance. In connection with this petition, Appellee submitted to the PCRA court a motion to preclude the Commonwealth from privately interviewing his trial counsel, who allegedly refused to cooperate with Appellee's attempt to prepare for PCRA litigation and, instead, was collaborating with the Commonwealth. The PCRA court entered an order granting the motion, and the Superior Court affirmed that order. This Court granted allowance of appeal to consider whether the lower courts correctly concluded that the Commonwealth should be prevented from privately interviewing a PCRA petitioner's trial counsel under the circumstances presented in this matter. For the reasons stated below, we hold that, given the circumstances relevant to this appeal, the PCRA court did not abuse its discretion by barring the Commonwealth from privately interviewing trial counsel. Consequently, we affirm the Superior Court's judgment.

         The factual and procedural histories underlying this appeal are protracted and largely immaterial to the discrete issue presently before this Court. Thus, we will summarize the matter only to the extent necessary to understand the pertinent issue. In September of 2006, a jury convicted Appellee of, inter alia, first-degree murder, and for that conviction, the trial court sentenced him to life in prison without the possibility of parole. The Superior Court affirmed the judgment of sentence. Commonwealth v. King, 959 A.2d 405 (Pa. Super. 2008). Appellee did not seek further review of his judgment of sentence.

         In October of 2009, Appellee, acting pro se, timely filed a PCRA petition. The PCRA court appointed counsel to represent him. PCRA counsel filed an amended PCRA petition and various supplements thereto, alleging, inter alia, that Appellee's trial counsel rendered ineffective assistance by failing to seek a cautionary instruction related to prior bad acts evidence that the Commonwealth presented to the jury at trial.

         After a second appeal regarding Appellee's PCRA petition, the Superior Court remanded the case to the PCRA court with directions to hold an evidentiary hearing to address the aforementioned claim of ineffective assistance of counsel. Commonwealth v. King, 125 A.3d 462 (Pa. Super. 2015) (unpublished memorandum). However, before that hearing could occur, Appellee filed in the PCRA court the motion germane to this appeal, which he entitled "Motion to Preclude the Commonwealth from Conducting an Out-of-Court Interview of Trial Counsel in Advance of the Evidentiary Hearing" ("Motion to Preclude").

          In this motion, Appellee averred that, in a letter dated August 5, 2015, PCRA counsel asked trial counsel whether he had any strategic reason for failing to seek a cautionary instruction regarding the Commonwealth's prior bad acts evidence.[1] Appellee asserted that trial counsel never responded to the letter, causing PCRA counsel to leave two messages on trial counsel's answering machine asking for a response to the letter. Trial counsel allegedly did not respond to these messages either. PCRA counsel sent trial counsel another letter dated August 28, 2015, and again, trial counsel allegedly failed to respond.[2]

         In terms of a legal argument, Appellee acknowledged that trial counsel can defend himself against his claim of ineffective assistance of counsel and that Appellee waived the attorney-client privilege as to that claim. See 42 Pa.C.S. § 9545(d)(3) ("When a claim for relief is based on an allegation of ineffective assistance of counsel as a ground for relief, any privilege concerning counsel's representation as to that issue shall be automatically terminated."). However, citing to the Pennsylvania Rules of Professional Conduct, Appellee explained that trial counsel nonetheless has a continuing duty of loyalty to Appellee, his former client, and that trial counsel is precluded from divulging any attorney-client confidences outside of the information related to Appellee's specific claim of ineffective assistance of counsel. Indeed, relying on the American Bar Association's Ethics Opinion 10-456, Appellee suggested that "a waiver of privilege resulting from the filing of an ineffective assistance claim does not constitute informed consent to the lawyer's voluntary disclosure of client information outside a judicial or similar proceeding." Motion to Preclude, at 3 (internal quotation marks omitted). Based upon these legal concepts and the circumstances presented in this case, Appellee asked the PCRA court to enter an order precluding the Commonwealth from communicating with trial counsel prior to the evidentiary hearing.

         The Commonwealth filed a response to Appellee's motion. It first explained that Appellee has waived his attorney-client privilege as to his claim of ineffective assistance of trial counsel and that trial counsel is entitled to defend himself against this claim. The Commonwealth highlighted that Appellee failed to provide any binding precedent to support his position that the Commonwealth should be prohibited from speaking to trial counsel. For example, the Commonwealth noted that this Court has never endorsed or adopted the American Bar Association's Ethics Opinions. The Commonwealth also protested that every time a court orders an evidentiary hearing on a claim of ineffective assistance of counsel, the Commonwealth speaks to the trial counsel whose representation is at issue to prepare for the hearing. Lastly, the Commonwealth pointed out that PCRA counsel has twice before filed motions like Appellee's Motion to Preclude, and according to the Commonwealth, both of those motions were denied.

         On October 6, 2015, the PCRA court entertained oral argument on Appellee's Motion to Preclude. The following day, the court entered an order granting the motion. In support of its order, the court cited, inter alia, trial counsel's alleged refusal to communicate with PCRA counsel and the narrowness of the issue to be explored during the evidentiary hearing, i.e., whether trial counsel rendered ineffective assistance by failing to seek a cautionary instruction regarding the prior bad acts evidence that the Commonwealth presented at trial. The Commonwealth filed a notice of appeal and a Pa.R.A.P. 1925(b) statement on October 29, 2015. The PCRA court subsequently issued an opinion in support of its decision.

         In a published opinion, the Superior Court affirmed the PCRA court's order precluding the Commonwealth from interviewing trial counsel. Commonwealth v. King, 167 A.3d 140 (Pa. Super. 2017). The court characterized the PCRA court's order as a discovery order, noting that it reviews discovery orders in PCRA appeals for an abuse of discretion. As to the merits of the Commonwealth's claim that it has the right to interview trial counsel, the Superior Court first observed, as previously explained herein, that a PCRA petitioner waives the attorney-client privilege only as to information relevant to claims of ineffective assistance of counsel. Relying on this Court's decisions in Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011), and Commonwealth v. Flor, 136 A.3d 150 (Pa. 2016), the Superior Court explained that this Court has refused to allow the Commonwealth to obtain information from trial counsel that falls outside of this limited waiver of the attorney-client privilege.

         According to the intermediate appellate court, "Harris and Flor demand that the PCRA court vigilantly guard against disclosure of 'privileged materials' in out-of-court interviews with individuals who performed work for the defense or in discovery proceedings outside the courtroom." King, 167 A.3d at 147-48. Indeed, the court opined that, when the Commonwealth seeks to interview privately a professional who formerly worked in the criminal defense of a PCRA petitioner, it may be incumbent for the PCRA court to enter an order prohibiting such an interview to eliminate the possibility of that professional exposing client confidences. Thus, the Superior Court held that the PCRA court was within its discretion when, under the facts of this case, it precluded the Commonwealth from privately interviewing trial counsel based on these concerns, stating, "A private interview between prosecutors and trial counsel could easily become a freewheeling inquiry into privileged matters that fall outside the scope of the ineffectiveness claims raised by Appellee." Id. at 148. The Superior Court bolstered its conclusion that the PCRA court's decision was within its discretion by suggesting that the PCRA court had the authority to avert trial counsel's potential breach of the Pennsylvania Rules of Professional Conduct, which, generally speaking, preclude counsel from revealing information related to the representation of clients.

         Continuing on this theme, the Superior Court explained that the particular circumstances of this case suggest that trial counsel, if left unchecked, could well share Appellee's confidences and secrets with the Commonwealth in violation of counsel's ethical duties. In support of this statement, the intermediate appellate court cited, inter alia, Appellee's assertion that trial counsel advised PCRA counsel to contact the District Attorney's Office with any further questions. Thus, the court opined that the PCRA court properly exercised its discretion to enjoin the Commonwealth from speaking with trial counsel "in view of trial counsel's uncooperative attitude towards PCRA counsel[.]" Id. at 149.

         In closing, the Superior Court noted that the parties argued at length in their appellate briefs regarding whether the American Bar Association's Ethics Opinion 10-456 barred trial counsel from speaking to the Commonwealth outside of a courtroom setting. Because the intermediate appellate court already had identified independent reasons upon which to affirm the PCRA court's order, it declined to address the applicability of this opinion to the case at bar. For these reasons, the Superior Court affirmed the PCRA court's order and remanded to that court for further proceedings.

         The Commonwealth petitioned this Court for allowance of appeal, which we granted to address the following question, as phrased by the Commonwealth:

Did the Superior Court commit a significant and potentially far-reaching error of law when, in contravention of Pennsylvania law and the greater weight of authority nationally, it issued a published decision holding that PCRA courts may bar the Commonwealth from speaking with [a defendant's] trial counsel prior to evidentiary hearings on defense claims that counsel provided ineffective assistance?

Commonwealth v. King, 184 A.3d 946 (Pa. 2018). Before answering this question, we define our standard of review. To accomplish this task, it is necessary to put the PCRA court's order in the appropriate legal context.

         The PCRA court's order precludes the Commonwealth from engaging in discovery insomuch as it prevents the Commonwealth from further communicating with trial counsel for purposes of preparing for PCRA litigation. Thus, the order can best be described as a "protective order" as that term is used in the discovery process. Cf. "Protective Order" Definition, Black's Law Dictionary (10th ed. 2014) (defining "protective order" as a "court order prohibiting or restricting a party from engaging in conduct (esp. a legal procedure such as discovery) that unduly annoys or burdens the opposing party or a third-party witness"). As the PCRA court's order, at its essence, relates to discovery, we will review it for an abuse ...


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