Commonwealth v. Harris
32 A.3d 243
| Pa. | 2011Background
- Harris was convicted of first-degree murder and death penalty sought; penalty phase included Dr. Berger's testimony on extreme emotional disturbance.
- Harris challenged Berger's evaluation as inadequate for testing brain damage; Harris argued it could mitigate his offense.
- PCRA petition claimed trial counsel erred in not investigating/presenting organic brain damage evidence; sought funds for proper experts.
- Commonwealth subpoenaed Berger to testify at PCRA hearing and sought waiver of psychologist-client privilege; PCRA court granted waiver and allowed Commonwealth to hire Berger.
- Court granted appellate review of privilege orders under Rule 313 collateral order doctrine; majority held the prosecution may subpoena but may not hire Berger as its expert.
- Ultimately, the Court held the prosecution may require Berger to testify as a fact witness to the extent of any waived privilege, but may not retain him as an expert; remand to determine waiver scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether privilege-disclosure orders are immediately appealable | Harris argues 313(b) collateral order applies | Commonwealth argues Mohawk limits appealability | Yes, immediately appealable under Ben rule |
| Whether the prosecution may hire a defense expert | Berger’s testimony is privileged; hiring risks disclosure | Waiver permits some use; but not hiring as expert | Prosecution may not hire Berger as an expert; may compel as fact witness only |
| Whether Harris waived psychologist-client privilege | Waiver occurs by placing Berger’s performance in issue | Waiver limited to material in issue | Waiver occurred to extent placed in issue; but scope must be determined remand |
| Whether Berger may be retained while privilege remains | Retention risks unwaived material | Ethical concerns mitigated by court order | Prosecution may not retain Berger as expert; may testify as fact witness within waiver limits |
| Extent of waiver and impact on privilege protections | In-issue waiver broadens privilege scope | Waiver limited to relevant materials | Waiver exists to extent of issue; remand to define boundaries |
Key Cases Cited
- Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (S. Ct. 2009) (collateral order review not available for attorney-client privilege orders under federal rule of finality)
- Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) (collateral order appeal for privilege/records disclosures reaffirmed)
- Commonwealth v. Kennedy, 876 A.2d 939 (Pa. 2005) (permissive appeals for privilege matters discussed; influence on approach)
- Rost v. State Board of Psychology, 659 A.2d 626 (Pa.Cmwlth. 1995) (ethical duty/confidentiality; disclosures under subpoena need client consent)
- Noll v. Commonwealth, 662 A.2d 1123 (Pa. Super. Ct. 1995) (work-product/attorney-client privileges extend to counsel's agents)
- Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004) (review of privilege matters and discovery protections in criminal cases)