PCRA; Ineffective Assistance of Counsel; Attorney-Client Privilege

Commonwealth. v. King, 167 A.3d 140 (Pa. Super. 2017), allocatur granted Apr. 30, 2018, appeal docket 13 EAP 2018

This case involves the Commonwealth’s right to interview a defendant’s previous trial counsel prior to a Post Conviction Relief Act (PCRA) evidentiary hearing when ineffective assistance of counsel is at issue.

Jerome King was charged with murdering Nathaniel Giles in retaliation for Giles providing incriminating evidence about King to law enforcement officials. Giles admitted to a federal special agent that he purchased a .45 caliber handgun for King because King could not pass the requisite background check. King was a member of “Lemon’s Squad” (King’s nickname was “Lemon”). A member of Lemon’s Squad shot and killed a young child using the handgun Giles purchased for King. In February 2005, King and co-defendant Esheem Haskins ambushed Giles and King shot Giles in the back of the head, killing him.

A jury found King guilty of first degree murder, criminal conspiracy, violating the Uniform Firearms act and possessing an instrument of crime (violating 18 Pa.C.S. §§ 2502, 903, 6106, and 907). King filed under the PCRA pro se, and the court appointed PCRA counsel. PCRA counsel made several failed attempts to contact King’s previous trial counsel to discuss claims King intended to raise in his amended PCRA petition. PCRA counsel also wrote to trial counsel advising him that as part of his continuing duty of loyalty to King, he should not speak or share any information with Commonwealth representatives. PCRA counsel filed a motion to preclude the Commonwealth from conducting an out-of-court interview of trial counsel in advance of the PCRA evidentiary hearing.

PCRA counsel argued that a preclusion order was necessary to prevent disclosure of privileged or confidential information that King previously shared with his trial counsel. The Commonwealth responded arguing that it was standard practice for the District Attorney to interview trial counsel prior to an evidentiary hearing relating to issues of trial counsel’s performance.

The PCRA court granted King’s motion to preclude the Commonwealth from having communication with trial counsel prior to the evidentiary hearing based on trial counsel’s continuing duty to his former client, and noting trial counsel’s “complete lack of cooperation or even communication with post-conviction counsel.” Slip Op. at 7 (citing PCRA Ct. Order, 10/7/15).

The Commonwealth treated the PCRA court’s order as a collateral order and filed a direct appeal, raising the sole issue of whether the PCRA court erred when it barred the Commonwealth from speaking with trial counsel prior to an evidentiary hearing on King’s claim that trial counsel provided ineffective assistance. The Superior Court agreed the order was collateral and thus appealable as of right, in part because it involved important issues of public policy affecting the way the Commonwealth prepares for evidentiary hearings in PCRA cases involving alleged ineffective assistance of counsel.   Superior Court framed the merits issue as whether the Commonwealth has a right to interview Appellee’s trial counsel ex parte after Appellee accuses counsel of ineffective assistance in a PCRA petition.

The Commonwealth argued that the attorney-client privilege does not apply to out-of-court statements, because it is an evidentiary privilege and further argued that King waived all privileges by accusing trial counsel of ineffective assistance. The PCRA provides that a “claim of ineffectiveness constitutes a waiver of privileges relevant to that claim, but not as to any other issues.” Slip Op.  at 11 (citing 42 Pa.C.S. § 9545(d)(3)). Relying on Commonwealth v. Flor, 136 A.3d 150,160 (Pa. 2016) and Commonwealth v. Harris, 32 A.3d 243, 253 (Pa. 2011), the Superior Court rejected the Commonwealth’s argument that the attorney-client and work-product privileges do not apply to an out-of-court interview with trial counsel: “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.” Slip Op. at 13-14.

Reading Flor and Harris in conjunction with section 9545(d)(3), the Superior Court affirmed that a “defendant only waives applicable privileges in PCRA cases to the extent that they relate to his specific claims of ineffectiveness.” Slip Op. at 14. All other privileged information not relating to the claim of ineffectiveness remain privileged and the PCRA court must ensure practices that will safeguard this information.

As a result, the Superior Court held that the PCRA court correctly determined that a preclusion order was necessary and the only way to guard against inquiry into privileged matters outside the scope of the ineffectiveness claim is to preclude the Commonwealth from interviewing trial counsel in advance of the PCRA evidentiary hearing.

The Superior Court also affirmed the PCRA court’s order based on the PCRA court’s authority to prevent trial counsel’s potential breach of Pennsylvania Rules of Professional Conduct 1.6 and 1.9. The Superior Court noted that under Rule 1.6(c)(4), trial counsel is permitted to disclose information he reasonably believes is necessary to respond to claims of ineffectiveness. However, the court noted that given trial counsel’s refusal to cooperate with PCRA counsel, an ex parte conversation with the Commonwealth could lead to disclosure of information that does not fall within a Rule 1.6(c)(4) exception.

The Superior Court, relying on both the attorney-client and work-product privilege and the Pennsylvania Rules of Professional Conduct, affirmed the PCRA court’s order precluding the Commonwealth from conducting an ex parte interview with trial counsel. The Superior Court remanded the case back to the PCRA court for further proceedings.

The Supreme Court of Pennsylvania granted allocatur on the following issue:

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?

For more information, contact Kevin McKeon or Dennis Whitaker.