COMMONWEALTH оf Pennsylvania, Appellee v. Robert Anthony FLOR, Appellant.
Supreme Court of Pennsylvania.
April 25, 2016.
136 A.3d 150
Submitted Jan. 20, 2016.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
OPINION
Justice WECHT.
In a petition filed pursuant to the Post Conviction Relief Act,1 Robert Anthony Flor alleged ineffective assistance of counsel at his homicide trial. After two years of proceedings in the PCRA court, the Commonwealth moved for the production of documents, requesting “access to the complete records” of trial counsel.2 This file included some 30,000 pages of documents pertaining to Flor‘s conviction, sentence, and direct appeal, and filled twelve banker‘s boxes. At a hearing on the Commonwealth‘s motion, Flor‘s PCRA counsel requested several weeks to review the file to allow removal of material protected by attorney-client privilege or constituting attorney work product. The PCRA court granted the Commonwealth‘s motion and denied PCRA counsel‘s request for time to conduct a privilege review. Flor has filed an appeal from this discovery order. See Pa.R.A.P. 313.
We conclude that the PCRA court‘s discovery order is immediately appealable pursuant to Rule 313. We further conclude that the PCRA court abused its discretion in affording wholesale discovery without conducting an issue-specific waiver analysis, as required by this Court in Commonwealth v. Harris, 612 Pa. 576, 32 A.3d 243 (2011). Accordingly, we vacate the discovery order, and we remand for immediate inspection of the file consistent with this Opinion.
On October 23, 2006, Flor pleaded guilty to first-degree murder for the shooting death of Newtown Borough Police Officer Brian Steven Gregg, and pleaded nolo contendere to a series of related charges.3 Because the Commonwealth sought a death sentence, a jury was impaneled for the penalty phase of the case. On November 17, 2006, the jury returned a sentence of death. At trial and sentencing, Flor was represented by two members of the Bucks County Public Defender‘s Office (hereinafter, “trial counsel“). Separate appellate counsel from the Public Defender‘s office represented Flor on direct appeal. On July 22, 2010, we affirmed the judgment of sentence. Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606 (2010), cert. denied, 563 U.S. 941, 131 S.Ct. 2102, 179 L.Ed.2d 900 (2011).
On May 26, 2011, Flor filed a pro se motion for post-conviction relief. On February 25, 2013, the Federal Defender‘s Office (hereinafter, “PCRA counsel“) filed a PCRA petition on Flor‘s behalf. The petition alleged, inter alia, that trial counsel was ineffective for failing adequately to investigate Flor‘s background, social history, medical history, adaptive deficits, and intellectual disabilities, including whether Flor suffered from fetal alcohol syndrome; failing to consult with appropriate experts; failing to raise particular defenses; failing to object to various acts of misconduct by the prosecutor; failing to object to certain jury instructions; failing to present adequate evidence in mitigation; and providing deficient advice and representation. The PCRA petition further alleged that Flor was intellectually disabled, rendering him ineligible for the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),
On June 1, 2013, the PCRA court granted Flor an evidentiary hearing. Over the next two years, the PCRA court held seven hearings pertaining solely to Flor‘s Atkins claim. On June 2, 2015, the Commonwealth moved for the production of documents, seeking access to “the complete records of [trial counsel] in order to review what trial counsel did and did not do in preparation for this case, to prepare cross-examination of [trial counsel], and to adequately prepare argument regarding [Flor‘s] ineffective assistance of counsel claims.” Commonwealth‘s Motion at ¶ 13. According to the Commonwealth, trial counsel indicated that they had no independent recollection of the investigation that they conducted to prepare for the penalty phase of Flor‘s trial, nor had they retained any copies of documents related to their representation. Recognizing that its discovery request implicated privileged documents, the Commonwealth argued that Flor had waived the protections of the attorney-client privilege5 and work product doctrine6 by asserting post-conviction claims of ineffective-
PCRA counsel opposed the Commonwealth‘s motion, arguing that the contents of trial counsel‘s file are subject to the attorney-client privilege and work product doctrine, and, therefore, are not subject to discovery by thе Commonwealth. To prevent the disclosure of privileged information, PCRA counsel requested the opportunity to conduct a review of trial counsel‘s file to identify and remove any privileged materials, including documents related to Flor‘s direct appeal.
On June 22, 2015, the PCRA court held oral argument upon the Commonwealth‘s motion. The court asked PCRA counsel to provide specific examples of material in trial counsel‘s file that was or could be privileged. PCRA counsel indicated that, at a minimum, privileged materials would include any memoranda or documents that did not relate to Flor‘s ineffectiveness claims, and further explained that the direct appeal material, which the Commonwealth did not request, was contained within trial counsel‘s file and distributed thrоughout.7
Following the hearing, the PCRA court granted the Commonwealth‘s discovery motion, denied Flor‘s request for more time to conduct a privilege review, and directed PCRA counsel to provide the Commonwealth with the entirety of trial counsel‘s file within ten days. Although the Court recognized that, “at first blush,” there might be privileged statements contained within trial counsel‘s file, it offered two reasons for its broad discovery order. First, the PCRA court relied upon Flor‘s guilty plea, which waived all claims against self-incrimination as to the crimes at issue. See Commonwealth v.
Second, the PCRA court believed that, by filing his petition and raising claims of ineffectiveness, Flor had placed at issue all of trial counsel‘s impressions and investigative efforts, and, therefore, waived any entitlement to rely upon attorney-client privilege or work product protection. Although the PCRA court recognized that “trial counsel‘s documents should not typically be subjected to wholesale examination by the Commonwealth,” PCRA Ct. Op. at 10, it determined that this case uniquely warranted such an extraordinary remedy so that the Commonwealth could respond to Flor‘s claims, particularly inasmuch as trial counsel could not recall the scope of their investigation. Although the PCRA court stated that documents relating to Flor‘s direct appeal remained privileged and were not subject to discovery, the court did not confront PCRA counsel‘s assertion that trial counsel‘s file contained both trial and appellate materials distributed throughout the twelve banker‘s boxes.
II. Issues and Jurisdiction
Flor presents three issues for our review: whether the PCRA court‘s discovery order violated his protections under the attorney-client privilege and work product doctrine, as well as his right to counsel; whether the PCRA court‘s order otherwise violated
Generally, subject to limited exceptions, litigants may appeal only final orders. Williams, 86 A.3d at 780. One of the exceptions is the collateral order, which is addressed in Rule 313 of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 313. Rule 313 permits the immediate appeal as of right from an otherwise unappealable, interlocutory order provided that three requirements are met: “(1) the order must be separable from, and collateral to, the main cause of action; (2) the right involved must be too important to be denied review; and (3) the question presented must be such that if review is postponed until after finаl judgment, the claim will be irreparably lost.” Harris, 32 A.3d at 248; Pa.R.A.P. 313(b). As we established in Harris, discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule
We pause to observe that Flor has raised two additional challenges to the PCRA court‘s order which do not depend upon a resolution of whether trial counsel‘s file contains material covered by the attorney-client privilege or work product doctrine. Specifically, relying upon the rule governing discovery in post-conviction proceedings, Flor argues that the PCRA court‘s discovery order did not meet the “good cause” threshold of
Second, Flor argues that the PCRA court erred in compelling disclosure of trial counsel‘s original file because that file belongs exclusively to the client, and counsel has a legal and professional obligation to safeguard it. See Maleski v. Corporate Life Ins. Co., 163 Pa.Cmwlth. 36, 641 A.2d 1, 6 (1994) (providing that documents in the client‘s file belong to the client); Pa.R.P.C. 1.15(b) (requiring counsel to safeguard the client‘s property). Flor has not advanced a Rule 313 analysis with regard to either of these two issues.
As we explained in Williams, the collateral order doctrine must be construed narrowly, in deference to the final order doctrine, and in recognition of the fact that a party may seek interlocutory appeal by permission pursuant to Pa.R.A.P. 312. Williams, 86 A.3d at 780; see also In re Estate of Stricker, 602 Pa. 54, 977 A.2d 1115, 1119 (2009) (“The [collateral order] doctrine is to be construеd narrowly to preserve the integrity of the general rule that only final orders may be appealed; thus, the requirements for a collateral order are applied relatively stringently.“); Rae v. Pennsylvania Funeral Directors Ass‘n, 602 Pa. 65, 977 A.2d 1121, 1126 (2009) (“To buttress the final order rule, we, too, have concluded the collateral order doctrine is to be construed narrowly, and we require every one of its three prongs be clearly present before collateral appellate review is allowed.“). To limit the scope of collateral review, mindful that our precedent cautions against permitting the collateral order doctrine to become an exception that swallows the rule, we require the three-prong collateral order test to be met for each individual issue that an apрellate court reviews upon collateral appeal. Rae, 977 A.2d at 1130 (holding that “the collateral order rule‘s three-pronged test must be applied independently to each distinct legal issue over which an appellate court is asked to assert jurisdiction pursuant to Rule 313“).
In accord with Rae, we will not address whether the PCRA court‘s order was supported by good cause, or whether that
III. Merits
Flor argues that the PCRA court‘s discovery order violated the attorney-client privilege and work product doctrine, as well as his Sixth Amendment right to counsel. Flor
Flor acknowledges that, when a PCRA petitioner challenges prior counsel‘s effectiveness, the privilege is waived as to materials placed “in issue” by the partiсular claims. See Harris, 32 A.3d at 253 (“In-issue waiver occurs when the privilege-holder asserts a claim or defense, and attempts to prove that claim or defense by reference to the otherwise privileged material.“). According to Flor, the PCRA court‘s order granting wholesale discovery of trial counsel‘s file to the Commonwealth swept important protections aside and failed to conduct the issue-specific waiver analysis required under Harris. The consequence, according to Flor, was to compel disclosure of all materials contained within the files, including direct appeal material that the Commonwealth and the PCRA court agreed remained protected by privilege. Cf. Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 424 (1999) (holding that “an attorney may not respond to allegations of ineffectivеness by disclosing client confidences unrelated to such allegations“).
Flor argues that the breadth of the PCRA court‘s order in this case works a chilling effect upon the Sixth Amendment right to counsel. Flor analogizes this case to Chmiel, in which a PCRA petitioner challenged trial counsel‘s effectiveness in post-conviction proceedings. 738 A.2d 406. When trial counsel testified in response, he revealed communications from the petitioner that were otherwise privileged. Following post-conviction proceedings, the petitioner was awarded a new trial, at which the Commonwealth introduced trial counsel‘s post-conviction testimony. The petitioner appealed to this Court. Upon review, we held that the Commonwealth could not use the post-conviction tеstimony of trial counsel against the petitioner at petitioner‘s retrial. We explained that permitting
Relying upon the PCRA court‘s second rationale for its discovery order, the Commonwealth argues that Flor has waived the protections of the attorney-client privilege and work product doctrine by challenging trial counsel‘s ineffectiveness. Focusing upon the breadth of Flor‘s ineffectiveness claims, the Commonwealth argues that Flor has faulted every aspect of trial counsel‘s representаtion, from pre-trial motions through the penalty phase. Although the Commonwealth agrees with Flor that Harris compels a finding of waiver only as to matters that a post-conviction petitioner has placed “in issue,” the Commonwealth believes that Flor‘s extensive allegations of trial counsel ineffectiveness put “in issue” every aspect of counsel‘s representation, thereby waiving in toto the attorney-client privilege and work product protection and necessitating disclosure of the entirety of trial counsel‘s file.
The Commonwealth also maintains that PCRA counsel cannot be the gatekeeper that determines which documents are privileged, and further suggests that requiring the PCRA court to conduct an in camera review would add unnecessary delay to these lengthy рroceedings. The Commonwealth believes that compelled disclosure of the entire file would be far
The Commonwealth distinguishes Chmiel by arguing that, unlike the prosecution in that case, it is not seeking to use privileged material to prosecute Flor. Rather, the Commonwealth is seeking the opportunity to defend Flor‘s existing conviction against collateral attack. Additionally, the Commonwealth believes that it is unrealistic to suppose, as Flor suggests, that a criminal defendant will withhold information from trial counsel out of fear that the information will be revealed when he later wishes to challenge that attorney‘s effectiveness.
It is beyond peradventure that Pennsylvania law protects the attorney-client privilege and recognizes it as “the most revered of the common law privileges.” Chmiel, 738 A.2d at 414.9 Because the privilege seeks to foster confidence between attorney and client in order to promote a trusting and open dialogue, permitting an attorney to reveal to others what the client has disclosed would destroy and prevent the benefits of representation. Id. at 423. In the criminal arena in particular, “the difficulty of obtaining full disclosure from the accused is well known, and would becоme an absolute
Pennsylvania law also protects an attorney‘s work product from compelled disclosure. This protection promotes our adversarial system “by enabling attorneys to prepare cases without fear that their work product will be used against their clients.” Kennedy, 876 A.2d at 948. Indeed, we have characterized the work product doctrine as “one of the most fundamental tenets of our system of jurisprudence.” Commonwealth v. Dennis, 580 Pa. 95, 859 A.2d 1270, 1278 (2004).
Nevertheless, a party who challenges the effectiveness of trial counsel cannot invoke privilege to prevent counsel from responding to the allegations. Chmiel, 738 A.2d at 414. “In effect, the client‘s attack on the competencе of counsel serves as a waiver of the privilege as to the matter at issue.” Id. Because ineffectiveness challenges do not waive the attorney-client privilege or work product doctrine as to all material counsel may possess, our precedent requires an issue-specific analysis of waiver. Harris, 32 A.3d at 252 (holding that when a petitioner challenges counsel‘s effectiveness in a post-conviction petition, he only has waived his privileges to the extent that he “puts the privileged materials in issue...“); Chmiel, 738 A.2d at 424 (holding that “an attorney may not respond to allegations of ineffectiveness by disclosing client confidences unrelated to such allegations“); see also
In Harris, the post-conviction petitioner challenged trial counsel‘s effectiveness with regard to the presentation of an expert witness psychologist during the mitigation phase of his trial. Harris, 32 A.3d at 244. To defend against these allegations, the Commonwealth sought from the PCRA court a declaration that Harris had waived his psychologist-patient privilege with respect to the expert witness, and further
It is undisputed that Flor‘s conversations with trial counsel were protected by the attorney-client privilege, and that trial counsel‘s research, correspondence, reports, or opinions were protected by the work product doctrine. Absent waiver, this material would remain protected against compelled disclosure. It is further undisputed that the PCRA court in this case compelled disclosure of trial counsel‘s file without conducting
The Commonwealth maintained that it did not seek materials related to direct appeal. Commonwealth‘s Motion at ¶ 8; N.T., 6/22/2015, at 6; id. at 26 (“While [PCRA counsel] says there‘s a couple of matters, one is that he believes that it may still be privileged. One is a direct appeal. We are not interested in that.“). And the PCRA court indicated in its opinion that it had not directed trial counsel to turn over documents related to Flor‘s direct appeal. PCRA Ct. Op. at 10. Yet, the PCRA court‘s broad order compelled disclosure of the entire file, which included thе direct appeal materials that all parties acknowledge are privileged.11
The PCRA court neither conducted an in camera review nor provided counsel with the opportunity to separate the material that remained privileged from that which was put in issue by Flor‘s claims. Although it may well be that the bulk of trial counsel‘s file no longer is privileged because of the scope of Flor‘s claims, it also is possible that some material remains privileged because it was not put in issue. As in
The same concerns that mandate recognition of the attorney-client privilege compel recognition that disclosure of the entirety of trial counsel‘s file without an issue-specific waiver analysis also would have a chilling effect upon defendants exercising their right to effective representation. See Chmiel, 738 A.2d at 423. Knowing that anything disclosed to counsel may be memorialized and retained within counsel‘s file and then turned over to the Commonwealth if the defendant later challenges counsel‘s representation, a reasonable defendant may withhold information about his case from counsel. Or he may forego a meritorious challenge to counsel‘s ineffectiveness in order to avoid disclosure to the Commonwealth. In effect, if Flor was represented by ineffective trial counsel, he faсed a constitutionally impermissible choice: either challenge the effectiveness of prior counsel, at the risk that all of his confidences shared would be disclosed to the Commonwealth, or forego his ineffectiveness challenges so as to protect the confidentiality of his prior conversations. We agree with Flor that, if allowed to stand, the PCRA court‘s overbroad discovery order would have a chilling effect upon a PCRA petitioner‘s ability to vindicate his constitutional right to effective representation.
Moreover, to the extent that the PCRA court‘s order was premised upon Flor‘s guilty plea and concomitant waiver of the privilege against self-incrimination, it was error. Although a guilty plea to a criminal charge waives one‘s right against self-incrimination with respect to that charge, see Strickler, 393 A.2d at 316, a guilty plea does not waive the attorney-client or work product protections. Rather, the attorney-client privilege and work product doctrine respectively encompass all confidential communications between attorney and client made for the purpose of obtaining professional advice, see Chmiel, 738 A.2d at 423, and any documents
Accordingly, we conclude that the PCRA court abused its discretion by compelling PCRA counsel to deliver to the Commonwealth the entirety of trial counsel‘s file without first discerning whether and to what extent the file contained privileged material and removing such material from the file. We direct the PCRA court on remand to permit PCRA counsel the opportunity to determine precisely what portions of trial counsel‘s file remain privileged in light of Flor‘s claims. We urge the PCRA court to ensure that this review is completed expeditiously to permit the proceedings to move forward.
The PCRA court‘s discovery order is vacated, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
Chief Justice SAYLOR and Justices TODD and DONOHUE join the opinion.
Chief Justice SAYLOR files a concurring opinion in which Justice DONOHUE joins.
Justice DOUGHERTY files a concurring opinion in which Justice BAER joins.
Chief Justice SAYLOR, concurring.
I join the majority opinion.
It seems that the common pleas court‘s order mandating wholesale disclosure may have been due to a belief that trial counsel‘s files had to be either protected or divulged as a unit. I believе there is a middle ground, however, which is able to protect both parties’ interests. As a supervisory matter, moreover, it seems appropriate for this Court to supply guidance on the topic for purposes of further proceedings on remand. Cf. Commonwealth v. Markman, 591 Pa. 249, 282, 916 A.2d 586, 605-06 (2007) (after awarding a new trial, finding it advisable for the sake of judicial economy to address additional claims which were likely to arise on remand).
Justice DONOHUE joins this concurring opinion.
Justice DOUGHERTY, concurring.
I join the Majority Opinion with the exception of its specific mandate: “We direct the PCRA court on remand to permit PCRA counsel the opportunity to determine precisely what portions of trial counsel‘s file remain privileged in light of Flor‘s claims.” See Majority Opinion, at 333, 136 A.3d at 161. I agree entirely with the substance of the concurrence of the Chief Justice and believe our mandate, at a minimum, must be adjusted along those lines. We cannot lose sight of the incentive to be less than forthcoming in capital matters, nor of
Justice BAER joins this Concurring Opinion.
Notes
In a criminal proceeding counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.