                                   [J-1-2019]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

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


 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


                                         OPINION


JUSTICE BAER                                                   DECIDED: July 17, 2019
       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”).




                                       [J-1-2019] - 2
       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

1It is well-settled that trial counsel is presumed to have been effective and that Appellee,
as a PCRA petitioner, bears the burden of proving trial counsel’s alleged ineffectiveness.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018). To overcome this
presumption, Appellee must establish that: (1) his underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission;
and (3) Appellee suffered prejudice as a result of counsel’s allegedly deficient
performance. Id. Appellee’s attempts to ascertain information from trial counsel were
designed to gather evidence regarding the second prong of the ineffective assistance of
counsel standard.
2Shortly after Appellee filed his Motion to Preclude, he filed another motion in which he
sought permission to examine trial counsel at the evidentiary hearing as an adverse
witness. In that motion, Appellee stated that, as early as 2010, trial counsel informed
PCRA counsel that he would not answer any of PCRA counsel’s questions and that trial
counsel directed PCRA counsel to contact the Philadelphia District Attorney’s Office if
PCRA counsel had any further questions. The PCRA court has yet to rule on this motion.


                                       [J-1-2019] - 3
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




                                       [J-1-2019] - 4
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




                                           [J-1-2019] - 5
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.




                                       [J-1-2019] - 6
         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 of discretion.3 See Commonwealth v. Williams, 86 A.3d 771, 787 (Pa.

2014) (“Appellate courts review PCRA discovery orders for an abuse of discretion.”).

3   This Court recently summarized the abuse-of-discretion standard as follows:
         When a [trial] court comes to a conclusion through the exercise of its
         discretion, there is a heavy burden [on the appellant] to show that this
         discretion has been abused. An appellant cannot meet this burden by
         simply persuading an appellate court that it may have reached a different
         conclusion than that reached by the trial court; rather, to overcome this
         heavy burden, the appellant must demonstrate that the trial court actually
         abused its discretionary power. An abuse of discretion will not be found
         based on a mere error of judgment, but rather exists where the [trial] court
         has reached a conclusion which overrides or misapplies the law, or where



                                        [J-1-2019] - 7
      Regarding the parties’ arguments to this Court, we observe that they correctly

agree that Appellee has waived his attorney-client privilege as it relates to his specific

claim of ineffective assistance of counsel. 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.”). When the parties’ arguments are deconstructed to their

simplest elements, each party contends that the other party’s position is unsupported by

the law. On the one hand, the Commonwealth insists that Appellee cannot provide any

binding authority for the proposition that the Commonwealth should be precluded from

interviewing trial counsel for the purpose of preparing for an evidentiary hearing to

examine whether Appellee is entitled to a new trial based upon that counsel’s alleged

ineffective stewardship. On the other hand, Appellee maintains that the Commonwealth

cannot produce any legal authority to demonstrate conclusively that it has the right to

unfettered access to Appellee’s former counsel.4

      To some extent, both parties appear to be correct. Our research indicates that

nothing in the law specifically prohibits the Commonwealth from interviewing trial counsel

when that counsel’s representation of a PCRA petitioner is under scrutiny, and there is

no blanket rule that establishes that the Commonwealth should have unconstrained




      the judgment exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will. Absent an abuse of that discretion, an appellate
      court should not disturb a trial court's ruling.
Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019) (citations and quotation marks
omitted).
4The Pennsylvania Association of Criminal Defense Lawyers and the Ethics Bureau at
Yale filed amici curiae briefs in support of Appellee.



                                      [J-1-2019] - 8
access to trial counsel. In fact, the PCRA itself is silent as to issues regarding discovery,5

and our Rules of Criminal Procedure speak only broadly to discovery requests made in

the context of PCRA proceedings, disallowing all discovery except upon leave of court

after a showing of exceptional circumstances in non-capital cases and upon leave of court

after a showing of good cause in capital cases.            Pa.R.Crim.P. 902(E)(1) & (2),

respectively.

       Consequently, it is jurisprudentially sound to place such matters in the discretion

of PCRA courts. Stated differently, we hold that, when a PCRA court is presented with a

request to limit the Commonwealth’s access to trial counsel, it is incumbent upon the court

to consider the totality of the circumstances and carefully exercise its discretion to craft

an order that balances the interests of the parties.

       Here, the parties shared an interest in accessing trial counsel for purposes of

preparing for an evidentiary hearing that would address a single, rather straightforward

claim of ineffective assistance of counsel. Yet, Appellee presented the PCRA court with

a motion to preclude the Commonwealth from further communicating with trial counsel.

Appellee’s request was premised upon allegations that trial counsel outright refused to

provide PCRA counsel with any information to prepare for the litigation of Appellee’s claim

of ineffective assistance of counsel. Appellee further averred that trial counsel’s actions

suggest that, despite his unwillingness to assist Appellee, he was agreeable to providing

pertinent (and perhaps impertinent) information to the Commonwealth.

       In response, the Commonwealth did not simply argue that, under the specific

circumstances of this case, the PCRA court should not preclude the Commonwealth from


5 For the sake of clarity, we observe that, when a PCRA petitioner requests an evidentiary
hearing, the PCRA requires the petitioner to submit a certification for each witness that
the petitioner intends to present at the hearing, and the certification must include, inter
alia, the substance of the witness’ testimony. 42 Pa.C.S. § 9545(d)(1).


                                       [J-1-2019] - 9
further meeting with trial counsel, nor did the Commonwealth suggest some sort of

“middle ground” remedy, as it does in its brief to this Court. See Commonwealth’s Brief

at 22 (asserting that, “under the ‘middle ground’ approach endorsed by . . . this Court in

Flor, it would be appropriate for a PCRA court to enter an order restricting the lawyers’

conversation and document review to the ineffectiveness claim, and to enforce that order

via contempt sanctions and disciplinary referrals in the event of a violation”). Rather, the

Commonwealth’s argument was more absolutist in that it advocated that the PCRA court

could never limit the Commonwealth’s access to trial counsel when that counsel’s

stewardship is the focus of a PCRA claim.             See, e.g., Commonwealth’s Letter in

Response to the Motion to Preclude, 9/29/2015, at 3 (stating that “[n]othing in the PCRA

qualifies or circumscribes the manner in which an attorney accused of ineffectiveness

may ‘reveal [the] information’ related to the claim of ineffectiveness”).

       Faced with these allegations and arguments, the PCRA court entered an order

granting Appellee’s Motion to Preclude. The court primarily grounded its order in the

particular circumstances of this case. Specifically, the court noted: (1) Appellee’s Motion

to Preclude and the Commonwealth’s response thereto; (2) that trial counsel has a

continuing duty to his former client regardless of Appellee’s claim of ineffective assistance

of counsel; (3) that “trial counsel appears to have exhibited a total lack of cooperation or

even communication with post-conviction counsel;” (4) that “the scope of the inquiry by

the Commonwealth at the evidentiary hearing will be narrow, given the sole issue on

remand from the Superior Court, and therefore efficiency in preparation for that hearing

is not, in actuality, a factor in this case;” (5) that it “is mindful of the paramount importance

of the attorney-client relationship in our legal system;” and (6) “the Commonwealth having

communication with trial counsel at this juncture may unnecessarily create other issues[.]”

PCRA Court Order, 10/7/2015.




                                        [J-1-2019] - 10
       We note that, in affirming the PCRA court’s order, the Superior Court relied upon

case law and, to some extent, the Pennsylvania Rules of Professional Conduct; however,

we conclude that disposition of this appeal need not touch upon those matters.

Importantly, however, the Superior Court correctly recognized that it was charged with

reviewing a discovery order for abuse of discretion. King, 167 A.3d at 146 (“We review

discovery orders in PCRA cases for an abuse of discretion.”). In this regard, the court

ultimately determined that no abuse of discretion occurred in this case. We concur with

that conclusion.

       In short, the PCRA court was faced with allegations that trial counsel refused to

cooperate with Appellee in preparation for an evidentiary hearing but, at the same time,

counsel purportedly was cooperating with the Commonwealth’s preparation for the same

hearing. Faced with these allegations, the PCRA court, learned in the law, entered an

order crafted to the specific arguments presented by the parties and the particular

circumstances of this case, placing both parties in a similar posture regarding their

interests in being prepared to litigate a discrete claim of ineffective assistance of counsel.

Simply put, the Commonwealth has failed to persuade both the Superior Court and this

Court that such an order constitutes an abuse of discretion. For these reasons, we affirm

the judgment of the Superior Court.

       Chief Justice Saylor and Justices Todd and Mundy join the opinion.

       Justices Donohue and Mundy file concurring opinions.

       Justice Dougherty files a dissenting opinion.

       Justice Wecht did not participate in the consideration or decision of this case.




                                       [J-1-2019] - 11
