                              [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


                                   CONCURRING OPINION


JUSTICE DONOHUE                                                  DECIDED: July 17, 2019

        I concur in the result of the Majority’s decision. Specifically, I agree with the

Majority that the PCRA court did not err in precluding the Commonwealth from conducting

an out-of-court interview with trial counsel in advance of the PCRA evidentiary hearing,

and that the Superior Court’s decision should be affirmed. I also agree with the Majority

that the preclusion order at issue should be reviewed under an abuse of discretion

standard.1 I cannot, however, join in the Majority’s application of that standard. The

Majority evaluates the trial court’s exercise of its discretion solely on the facts and without

any consideration of the relevant law. In my view, a trial court’s discretion is cabined by


1  Our review of the Superior Court’s assessment of a PCRA court’s discretionary decision
“is not deferential, but plenary and de novo.” Commonwealth v. Hoover, 107 A.3d 723,
729 (Pa. 2014).
the substantive legal framework that it is required to apply. See Commonwealth v. Norton,

201 A.3d 112, 123-130 (Pa. 2019) (Donohue, J., dissenting). As I explained in Norton,

“discretion itself is not the governing legal standard.” Id. at 125 n.3.

       The Majority correctly recites the fundamentals of the abuse of discretion standard,

which requires the appellate court to determine whether the trial court “has reached a

conclusion which overrides or misapplies the law, or where the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.” Majority Op.

at 7-8 n.3 (citing Norton, 201 A.3d at 120). This Court has explained that “the term

‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a

dispassionate conclusion, within the framework of the law, and is not exercised for the

purpose of giving effect to the will of the [trial] judge.” Commonwealth v. Gill, 206 A.3d

459, 466 (Pa. 2019) (emphasis added). Because a trial court’s discretion is cabined by

the “framework of the law,” the facts alone do not control appellate review.

       The PCRA court acted within its discretion in determining that a preclusion order

was warranted, as it appropriately considered both the facts and the relevant law. The

Majority notes that there is no law that directly addresses whether the Commonwealth

may interview trial counsel in order to prepare for a PCRA evidentiary hearing regarding

claims of trial counsel’s ineffectiveness. Majority Op. at 8. In addressing the issue,

however, the PCRA court relied upon case law emphasizing the importance of the

attorney-client privilege, which aims to “‘foster a confidence between attorney and client

that will lead to a trusting and open dialogue’ – particularly in the criminal field.” PCRA

Court Opinion, 1/22/2016, at 8-9 (citing Commonwealth v. Chmiel, 738 A.2d 406, 423

(Pa. 1999)).    The PCRA court concluded that the law therefore requires that all




                                [J-1-2019] [MO: Baer, J.] - 2
communications by a client to his attorney for the purpose of obtaining advice “shall be

strictly privileged.” Id. at 9 (citing Chmiel, 738 A.2d at 423). The PCRA court also

examined the Rules of Professional Conduct, which prohibit lawyers from revealing

information related to the representation of their clients, id. at 8 (citing Pa.R.P.C. 1.6(a)),

even after the termination of the attorney-client relationship. Id. at 10 (citing Pa.R.P.C.

1.9(c)).

       In reviewing the PCRA court’s decision, the Superior Court also called upon the

relevant legal framework. See Commonwealth v. King, 167 A.3d 140, 142 (Pa. Super.

2017). It observed that raising a claim of ineffective assistance of trial counsel constitutes

a limited waiver of the attorney-client privilege, but only “as to that issue[.]” Id. at 146

(citing 42 Pa.C.S. § 9545(d)(3)) (emphasis in original). It also relied upon the relevant

jurisprudence from this Court, Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011), and

Commonwealth v. Flor, 136 A.3d 150 (Pa. 2016), which reaffirm the “issue-specific”

nature of the waiver. Id. at 148.2 Harris and Flor demonstrate that this “Court has refused

to permit the Commonwealth to obtain information that falls outside the scope of the



2  In Harris, the Commonwealth was prohibited from consulting with or retaining the expert
psychologist who testified on the defendant’s behalf at trial, despite the fact that the
defendant premised his ineffective assistance of counsel claim in his PCRA petition upon
trial counsel’s reliance on the expert psychologist’s deficient testimony. However, the
Commonwealth was permitted to call the psychologist to testify as a fact witness to the
extent that Harris waived the psychologist-client privilege by placing privileged material
at issue. Harris, 32 A.3d at 592-93.
In Flor, this Court found that the PCRA court abused its discretion in ordering wholesale
disclosure of trial counsel’s complete records without permitting a privilege review. “As
in Harris, the mere potential that the PCRA court’s order will force the disclosure of
privileged materials requires reversal of the PCRA court’s discovery order.” Flor, 136
A.3d at 160. We therefore remanded with directions to the PCRA court to permit PCRA
counsel to determine what portions of trial counsel’s file remained privileged. Id. at 161.


                                [J-1-2019] [MO: Baer, J.] - 3
waiver[,]” and that “the PCRA court must craft its discovery orders to safeguard this

information.” Id. at 147, 148. The Superior Court read Harris and Flor together with

section 9543(d)(3) of the PCRA Act, as establishing that a PCRA court must vigilantly

guard against disclosure of privileged materials. Having identified the relevant legal

framework, the Superior Court turned to the factual circumstances of this appeal, and

concluded that the trial court “correctly determined that a preclusion order was

necessary.” Id. at 148.

       The Superior Court also stated that Rules of Professional Conduct 1.6 and 1.9,

read together with Pirillo v. Takiff, 341 A.2d 896, 904-05 (Pa. 1976), provided an

independent basis for the PCRA court’s order. King, 167 A.3d at 148 (citing Pa.R.P.C.

1.6, 1.9). In Pirillo, this Court recognized that a trial judge has the power and duty to

supervise the conduct of lawyers practicing before him. “A court is not bound to sit back

and wait for a probability [of an impairing conflict] to ripen into a certainty; it may restrain

conduct which has the potential for evolving into a breach of ethics before such conduct

becomes ripe for disciplinary action.”        Pirillo, 341 A.2d at 905.    Applying this legal

framework to the pending matter, the Superior Court thus determined that the “PCRA

[court] was not ‘bound to sit back and wait’ for any ethical lapse[,]” but instead had the

discretion to enjoin ethical misconduct in advance. King, 167 A.3d at 149. The Superior

Court thus affirmed the PCRA court’s order on two grounds – first, based on its

interpretation of the relevant legislative framework considered in conjunction with Harris

and Flor, and second, based on the Rules of Professional Conduct and the duty of the

trial court to restrain violations thereof.




                                 [J-1-2019] [MO: Baer, J.] - 4
       In contrast, the Majority here looks only to the factual circumstances of this appeal,

merely indicating that it is “jurisprudentially sound to place such matters in the discretion

of the PCRA courts.” Majority Op. at 9, 11 (finding that “disposition of this appeal need

not touch on” case law or the Rules of Professional Conduct). Such an approach runs

counter to the established view that “‘discretion’ imports the exercise of judgment, wisdom

and skill so as to reach a dispassionate conclusion, within the framework of the law[.]”

Gill, 206 A.3d at 466. Moreover, we did not grant discretionary review to determine

whether the trial court erred in its consideration of the facts of this case. Instead, we

granted review to determine whether the Superior Court’s affirmance of the PCRA court’s

order was in “contravention of Pennsylvania law and the greater weight of authority

nationally,” and whether the lower courts properly applied the law to the circumstances at

hand.3 Commonwealth v. King, 184 A.3d 946 (Pa. 2018) (per curiam).

       This case thus offers an opportunity to clarify the substantive law in this area and

apply it to the facts of this case. A PCRA court, faced with a motion to prohibit the

Commonwealth from conducting an ex parte interview of trial counsel, should exercise its

discretion guided by the following considerations. First, the PCRA court’s determination

must be consistent with our precedent requiring protection of confidential information



3  “Our Rules of Appellate Procedure provide that we grant review only when there are
special and important reasons therefor.” McMullen v. Kutz, 985 A.2d 769, 773 n.1 (Pa.
2009) (citing, inter alia, Pa.R.A.P. 1114). Our review generally is not focused on
correcting errors committed by the lower courts, but on determining the substantive law
to be followed by courts analyzing similar issues in the future. See Pa.R.A.P. 1114(b)(1)-
(7) (listing the reasons for granting discretionary review). The case at bar merited our
discretionary review because it posed an important legal question: what is the
substantive legal framework for reviewing a discovery motion seeking to preclude the
Commonwealth from privately interviewing trial counsel in anticipation of PCRA
evidentiary proceedings?


                               [J-1-2019] [MO: Baer, J.] - 5
revealed within the scope of the attorney-client relationship. See Chmiel, 738 A.2d at 414

(recognizing that Pennsylvania law protects the attorney-client privilege as “the most

revered of the common law privileges”); Flor, 136 A.3d at 158 (same). The PCRA court

should be mindful of trial counsel’s ongoing duty to his former client, including his duty to

maintain the confidentiality of information related to his representation of the client.

Pa.R.P.C. 1.6(a). Pertinent to PCRA claims, such confidentiality persists except in the

limited circumstances where the lawyer “reasonably believes” disclosure is necessary “to

respond to allegations in any proceeding concerning the lawyer’s representation of the

client[.]” Pa.R.P.C. 1.6(c)(4). Therefore, the PCRA court’s considerations must take into

account the limited nature of the waiver of the attorney-client privilege on PCRA review.

See 42 Pa.C.S. § 9545(d)(3) (providing that an individual raising a claim for collateral

relief “based on an allegation of ineffective assistance of counsel” automatically

terminates “any privilege concerning counsel’s representation as to that issue”)

(emphasis added); Flor, 136 A.3d at 160 (“requir[ing] strict adherence to our precedent

protecting privileged communications”). As the Superior Court recognized, “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 (citing Flor,

136 A.3d at 160; Harris, 32 A.3d at 253).4



4 I do not view the legal framework as foreclosing the Commonwealth’s ability to prepare
for the PCRA hearing by interviewing trial counsel. In my view, in instances such as this
where the Commonwealth seeks information outside of its control, the Commonwealth
may seek permission to depose trial counsel. At a deposition, with both parties present,
PCRA counsel would have the opportunity to object (and to seek judicial review, if
necessary), should questioning veer into topics that remain privileged.


                               [J-1-2019] [MO: Baer, J.] - 6
       In consideration of these legal principles and the facts presented, the PCRA court

clearly acted within its discretion. I thus concur in the Majority’s decision to affirm the

PCRA court’s ruling, as the PCRA court appropriately considered the applicable legal

framework, including strict adherence to the attorney-client privilege and the limited

nature of the waiver of the attorney-client privilege when seeking PCRA relief.




                               [J-1-2019] [MO: Baer, J.] - 7
