Commonwealth v. Harris

• Decision Date: 23 November 2011
• Citation: 32 A.3d 243
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Francis Bauer HARRIS, Appellant.
• Court: Pennsylvania Supreme Court

32 A.3d 243

COMMONWEALTH of Pennsylvania, Appellee

v.Francis Bauer HARRIS, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 15, 2010.Decided Nov. 23, 2011.

Matthew C. Lawry, Helen A. Marino, Defender Association of Philadelphia, Philadelphia, for Francis Bauer Harris.

Kelley Lynn Nelson, Christopher D. Carusone, Philadelphia, PA Office of Attorney General, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice McCAFFERY.

Appellant Francis Bauer Harris was found guilty by a jury of first-degree murder, and the Commonwealth sought the death penalty. During the penalty phase of his trial, Appellant sought to establish the statutory mitigating circumstance of extreme mental or emotional disturbance by presenting the testimony of a psychologist, Vincent Berger, Ph.D. See 42 Pa.C.S. § 9711(e)(2). The jury rejected Appellant's claim of a mitigating circumstance, found one aggravating circumstance, and returned a verdict of death.

After we affirmed Appellant's judgment of sentence, Appellant filed a petition under the Post Conviction Relief Act ¹ (“PCRA”) asserting that trial counsel had been ineffective for presenting Dr. Berger's testimony. Appellant claimed that trial counsel had presented Dr. Berger's testimony even though counsel was aware that Dr. Berger's evaluation of Appellant had been deficient because he had not tested him for organic brain damage. Appellant alleged that he suffers from a cognitive disorder, such as frontal lobe syndrome, that would have been identified by either appropriate testing or a psychiatrist's examination, and that evidence of the disorder would have mitigated his offense. He also alleged that Dr. Berger had not performed appropriate testing even though he recognized that Appellant's mental health history suggests that Appellant has such a cognitive disorder. To support these claims, Appellant proffered the testimony of other experts.

The court of common pleas scheduled a hearing on the PCRA petition, and, to defend against Appellant's allegations, the Commonwealth subpoenaed Dr. Berger to testify. The prosecution also asked Appellant to waive psychologist-client privilege with respect to Dr. Berger's testimony. When Appellant refused, the Commonwealth asked the PCRA court not only to declare the privilege waived, but also to permit it to hire Dr. Berger as its expert for the PCRA proceedings. The PCRA court granted the motion, and Appellant filed a notice of appeal to this Court. Cf. 42 Pa.C.S. § 9546(d) (providing this Court with exclusive jurisdiction over appeals from final PCRA orders in capital cases). We ordered briefing and oral argument on whether we have jurisdiction over this appeal as a collateral appeal under Pa.R.A.P. 313, and we now conclude that the exercise of jurisdiction is proper. On the merits, we hold that although the Commonwealth may subpoena Dr. Berger to testify as a fact witness, it may not hire him as its expert for the PCRA proceedings.

I. Background

In November 1996, Appellant ambushed Daryl Martin, who was to testify against Appellant at his trial on aggravated assault charges. Appellant slashed Martin's throat, killing him. After Appellant was found guilty of first-degree murder, Dr. Berger testified during the penalty phase that Appellant had been born prematurely and was delivered using forceps. Dr. Berger said that after spending three months in the hospital, Appellant was placed in foster homes until he was a year and a half old, when he was placed with the family that later adopted him. Dr. Berger noted that Appellant's records showed that Appellant had delayed motor development and had displayed an emotional disturbance from an early age. He opined that Appellant's difficulties were characteristic of children who had been profoundly neglected at an early age, which he suggested might have happened to Appellant when he was in the hospital and then foster care. Notes of Testimony Penalty Phase, 10/8/97, at 4456–4458. Dr. Berger also opined that Appellant's emotional disturbance might have been the result of brain damage from having been delivered with forceps. Id. at 4463. Dr. Berger said that “nowadays ... we would probably do [ ] neuropsychological testing on him and run an MRI or whatever” to determine if behavior problems in a child born using forceps were caused by brain damage. Id. Nonetheless, he would not say that any of Appellant's adult behavior was related to brain damage, although he did testify that Appellant's delayed development “does suggest that there was something wrong at the time.” Id.

Dr. Berger then gave a detailed mental health history of Appellant, describing what he termed a pattern of antisocial behavior persisting since childhood. Dr. Berger ultimately concluded that, to a reasonable degree of psychological certainty, Appellant has been severely emotionally disturbed, bordering on psychotic, since infancy. Id. at 4541–4542; 4545. He elaborated that although Appellant does not behave in an emotionally disturbed way at all times, when something in the environment triggers him, the emotional disturbance “comes out.” Id. at 4542. Dr. Berger noted that Appellant had been given slightly different diagnoses of mental illness throughout his life, but said that he had not diagnosed Appellant. Id. at 4544. He said that he did not do so because the purpose of a diagnosis is to give a shorthand explanation of a person's mental illness. He said that because he was going to testify at length about the behaviors demonstrating Appellant's disturbance, he had seen no reason to make a diagnosis. Id. at 4545. Dr. Berger opined that although Appellant knows right from wrong, his severe emotional disturbance might have in part caused him to overreact to the victim's behavior, be unable to control himself, and attack and kill the victim. Id. at 4548–4551.

On cross-examination, Dr. Berger agreed with the prosecutor that Appellant did not suffer from a brain abnormality that would have prevented him from conforming his behavior to the law. Id. at 4564. Dr. Berger also reiterated his opinion that researchers are learning that behavior is related to a “chemical imbalance” in the brain, and that “30 years from now, it could be that it would be clear that [Appellant] did or didn't have a particular brain problem that caused [his behavior].” Id. at 4625.

After the jury deliberated, it found as an aggravating circumstance the fact that Appellant had killed the victim to prevent him from testifying against Appellant. See 42 Pa.C.S. § 9711(d)(5). Finding no mitigating circumstances, the jury returned a verdict of death, and the trial court imposed the death sentence. Appellant filed post-verdict motions, which the trial court denied, and Appellant then filed a direct appeal to this Court. We affirmed, Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033 (2002), and Appellant applied to the Supreme Court of the United States for a writ of certiorari, which that Court denied on December 8, 2003. Harris v. Pennsylvania, 540 U.S. 1081, 124 S.Ct. 939, 157 L.Ed.2d 756 (2003).

On November 22, 2004, Appellant filed a “Petition for Writ of Habeas Corpus and for Collateral Relief from Criminal Conviction Pursuant to the Post Conviction Relief Act” (“PCRA petition”).² Among other claims, Appellant asserted that trial counsel had been ineffective for failing to investigate, develop, and present mitigating evidence that organic brain damage had contributed to Appellant's aggressive behavior. Appellant claimed that Dr. Berger's evaluation was inadequate because he had failed to form a diagnosis or conduct appropriate testing to determine whether Appellant suffered from brain damage, despite recognizing that some of Appellant's history was consistent with organic brain damage. PCRA Petition ¶ 358. Appellant also faulted Dr. Berger for allegedly not determining Appellant's mental state at the time of the offense, including whether Appellant suffered from an extreme mental or emotional disturbance at the time of the killing. Id. ¶ 345. Appellant claimed that counsel knew that Dr. Berger's performance was inadequate, and he faults trial counsel for failing to seek funds to hire a local or any other psychiatrist after the trial court had denied counsel's request to hire a particular psychiatrist from Texas. Id. ¶¶ 344, 347. Appellant also claimed that the trial court's orders denying counsel's requests for funds to hire an expert with appropriate knowledge and expertise violated his Eighth Amendment and due process rights. Id. ¶ 357.

The Commonwealth filed an answer to the amended PCRA petition, and the PCRA court scheduled a hearing on the petition. The Commonwealth moved to have Appellant evaluated by a mental health expert it had retained and for production of documents related to Appellant's mental health. The PCRA court granted the motion, and Appellant produced some records, but withheld others, asserting work product privilege. The Commonwealth then subpoenaed Dr. Berger to testify at the PCRA hearing, and sent a letter to Appellant's counsel asking Appellant to waive any privilege to information possessed by Dr. Berger. Appellant refused to waive privilege.

Dr. Berger responded to the subpoena to testify at the PCRA hearing by moving to quash it. He argued that releasing records or testifying could subject him to professional discipline and other repercussions under Rost v. State Board of Psychology, 659 A.2d 626 (Pa.Cmwlth.1995).³ Dr. Berger asked the PCRA court to quash the subpoena, compel the parties to “release” all records and to permit him to testify, or to appoint him to “work under the protection of the court,” as both sides were seeking his assistance. Motion to Quash Subpoena at 2. He also asked the court to determine who would pay for his time and to set “ground rules” for his participation. The PCRA court denied Dr. Berger's motion in its entirety.

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