Commonwealth v. Flor
| Decision Date | 25 April 2016 |
| Docket Number | No. 708 CAP,708 CAP |
| Citation | 136 A.3d 150 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Robert Anthony FLOR, Appellant. |
| Court | Pennsylvania Supreme Court |
Hunter Stuart Labovitz, Esq., Peter Konrad Williams, Esq., Federal Community Defender Office, Eastern District of PA, for Robert Anthony Flor.
Jill Marie Graziano, Esq., Bucks County District Attorney's Office, Amy Zapp, Esq., Harrisburg, for Commonwealth of Pennsylvania.
OPINION
.
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)
, and that trial counsel was ineffective for failing to introduce evidence of Flor's intellectual disability during the penalty phase.4
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 ineffectiveness. However, the Commonwealth also recognized the possibility that trial counsel's files contained documents that remained privileged, and specifically disclaimed any entitlement to documents related to Flor's direct appeal. Id. at ¶ 8.
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 the 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 throughout.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. Strickler, 481 Pa. 579, 393 A.2d 313, 316 (1978)
() (citation omitted). Given this plea, the PCRA court was unable to imagine that there was anything in trial counsel's file that could be privileged. See N.T., 6/22/2015, at 22–23; PCRA Ct. Op. at 8 ( ).
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.
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 Rule 902(E)(2) of the Rules of Criminal Procedure
, Pa.R.Crim.P. 902(E)(2) ; and whether the PCRA court erred by compelling discovery of trial counsel's original file. Brief of Appellant at 5–6.
Discovery in post-conviction proceedings is governed by Rule 902(E)(2)
. The Rule provides that, upon a first counseled petition in a death penalty case, no discovery is permitted “except upon leave of court after a showing of good cause.” Pa.R.Crim.P. 902(E)(2). We review a discovery order entered pursuant to this rule under an abuse of discretion standard. Commonwealth v. Williams, 624 Pa. 405, 86 A.3d 771, 787 (2014) ; Commonwealth v. Miller, 605 Pa. 1, 987 A.2d 638, 671 (2009) ; Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 662 (2008). We have explained that “[d]iscretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 86 (2008) (citation omitted). Our determination of whether the PCRA court had “good cause” to issue its discovery order under Rule 902(E)(2) inevitably requires an analysis of the attorney-client privilege and the work product doctrine. These are legal questions as to which our scope of review is plenary and our standard of review is de novo . See
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