Commonwealth, Aplt. v. King, J.

[J-1-2019] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 13 EAP 2018
:
Appellant : Appeal from the Judgment of Superior
: Court entered on July 12, 2017 at
: 3251 EDA 2015 (reargument denied
v. : September 13, 2017) affirming and
: remanding the PCRA Order entered
: on October 715 in the Court of
JEROME KING, : Common Pleas, Philadelphia County,
: Criminal Division at No. CP-51-CR-
Appellee : 0706191-2005.
:
: SUBMITTED: January 15, 2019
DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: July 17, 2019
I respectfully dissent and would hold the PCRA court abused its discretion in
granting appellee’s motion to preclude the Commonwealth from privately interviewing trial
counsel. As a basis for holding the PCRA court did not abuse its discretion by “enter[ing]
an order crafted to the specific arguments presented by the parties and the particular
circumstances of this case,” Majority Opinion, slip op. at 11, the majority quotes from the
PCRA court’s order, which enumerated a number of circumstances unique to this case.1
See id. at 10. However, it is clear from the PCRA court’s opinion that it grounded its
decision upon a concern that trial counsel would divulge still-privileged information to the
1 As the majority relies upon the PCRA court’s order for its holding, I agree with Justice
Mundy that its holding “should be narrowly construed based on the unique set of
circumstances before [the Court]” and “should not be read to stand for the proposition
that the Commonwealth is generally prohibited from communicating with trial counsel in
preparation for an evidentiary hearing.” Concurring Opinion (Mundy, J.), slip op. at 1.
Commonwealth in the private interview. Specifically, the PCRA court stated “in order to
ensure that trial counsel [ ] did not violate his continuing duty of loyalty to [appellee] and
disclose confidential information to the Commonwealth, [I] ordered that the
Commonwealth be precluded from speaking with trial counsel prior to the evidentiary
hearing on trial counsel’s ineffectiveness.” PCRA Court Opinion, 1/22/16 at 7
The attorney-client privilege has been codified by our legislature and acts to bar
counsel from disclosing confidential information in all criminal proceedings unless the
client waives the privilege. See 42 Pa.C.S. §5916. Waiver of the privilege occurs where
the client claims ineffective assistance of counsel as a basis for PCRA relief. See 42
Pa.C.S. §9545(d)(3). Of course, the privilege is waived only as to the discrete claim or
claims at issue and the privilege remains intact for all matters not implicated by the
ineffectiveness claim. See id. See also Commonwealth v. Flor, 136 A.3d 150, 160-61
(Pa. 2016). However, courts should not presume attorneys faced with allegations of
ineffectiveness will act unethically and reveal information irrelevant to the ineffectiveness
claim, but instead should presume those attorneys will “honor [their] professional
responsibility to [their] client” by acting professionally and ethically. Commonwealth v.
Philistin, 53 A.3d 1, 31 (Pa. 2012) (internal quotation and citation omitted). See also
Commonwealth v. Torres, 630 A.2d 1250, 1253 (Pa. Super. 1993) (en banc) (“[C]ounsel
is presumed to act professionally and ethically”).
Rather than following these principles of law and presuming trial counsel would act
ethically and refrain from disclosing still-privileged information in his interview with the
Commonwealth, the PCRA court instead assumed the interview would delve into still-
privileged information, without any evidence in the record to support its assumption.2 See
2The following exchange between PCRA counsel and the PCRA court at the hearing on
appellee’s motion to preclude demonstrates the record was devoid of any evidence
[J-1-2019] [MO: Baer, J.] - 2
PCRA Court Opinion, 1/22/16 at 20 (“[T]his [c]ourt deferred disclosure of privileged
information until a court-supervised proceeding where this [c]ourt could monitor the extent
of trial counsel’s disclosures and ensure that [appellee’s] important interests be protected
by the continuing rules of confidentiality.”). For these reasons, I would hold the PCRA
court abused its discretion by precluding the Commonwealth from privately interviewing
trial counsel based on an unfounded presumption trial counsel would divulge still-
privileged information.
suggesting trial counsel would have revealed still-privileged information in the private
interview with the Commonwealth:
PCRA Counsel: Under what circumstances does a lawyer say, [y]ou know
what, I’m going to jam [up] my former client. I’m going to hurt him. We don’t
allow that. You should not allow that. He can still defend himself. We can
still get at the truth. The Commonwealth - -
PCRA Court: I’m sorry, where does it say that [trial counsel] thought
that he was going to jam up - -
PCRA Counsel: I didn’t say that he would. This is a protective measure
to make sure that he doesn’t.
N.T. 10/6/15 at 13 (emphasis added).
[J-1-2019] [MO: Baer, J.] - 3