Summary
The Supreme Court of Pennsylvania held that orders overruling claims of privilege and requiring disclosure are immediately appealable under Pennsylvania's collateral-order rule. On the merits, the court held that although the Commonwealth could subpoena the defense psychologist to testify as a fact witness regarding matters placed in issue by the PCRA petition, it could not retain or consult with that psychologist as its expert because of potential disclosure of remaining privileged material and concerns about the integrity of the criminal proceedings.
Topics
Practice areas
Questions Presented
- Whether an order overruling privilege claims and requiring disclosure of potentially privileged material is immediately appealable as a collateral order under Pa.R.A.P. 313.
- Whether Harris waived attorney-client, psychologist-client, and work-product privileges to the extent he placed Berger's evaluation and trial counsel's performance in issue.
- Whether the Commonwealth may retain and consult with a psychologist previously retained and presented as a defense expert in the same criminal case.
- Whether the Commonwealth may subpoena the psychologist to testify as a fact witness concerning matters as to which privilege has been waived.
Holdings
- An order overruling a claim of privilege and requiring disclosure is immediately appealable as of right under Pennsylvania's collateral-order doctrine.
- By challenging Berger's performance and trial counsel's reliance on that performance in the PCRA petition, Harris waived attorney-client, psychologist-client, and work-product privileges only to the extent the privileged material was placed in issue and was necessary to refute those claims.
- The Commonwealth may not consult with or retain as its expert a psychologist previously retained and presented as a defense expert in the same criminal case.
- The Commonwealth may subpoena Berger to testify as a fact witness about his evaluation of Harris, but only to the extent Harris waived applicable privilege by placing the material in issue.
Key quotations
“Once putatively privileged material is in the open, the bell has been rung, and cannot be unrung by a later appeal.” (32 A.3d at 249)
“In summary, we reaffirm our holding in Ben, supra, that orders overruling claims of privilege and requiring disclosure are immediately appealable under Pa.R.A.P. 313.” (32 A.3d at 251)
“The prosecution may not hire a psychologist who previously testified as an expert for the defense in the same case.” (32 A.3d at 251)
“However, the prosecution may not consult with or retain Dr. Berger as an expert.” (32 A.3d at 254)
Factual background
Harris was convicted of killing Daryl Martin, a potential witness against him, and received a death sentence. During the penalty phase, defense psychologist Vincent Berger testified that Harris had been severely emotionally disturbed and had a history suggesting possible developmental or brain-related problems, but Berger did not diagnose Harris or conduct neuropsychological testing. In his PCRA petition, Harris alleged that trial counsel were ineffective for relying on Berger's inadequate evaluation and failing to obtain appropriate expert evidence concerning organic brain damage. The Commonwealth subpoenaed Berger and sought to retain him as its PCRA expert after Harris refused to waive privilege.
Procedural history
Harris was convicted of first-degree murder and sentenced to death after the penalty-phase jury rejected mitigating circumstances. The Supreme Court of Pennsylvania affirmed the judgment of sentence, and the United States Supreme Court denied certiorari. During Harris's PCRA proceedings, the PCRA court declared his privilege regarding defense psychologist Vincent Berger waived and permitted the Commonwealth to hire Berger as an expert. The Supreme Court of Pennsylvania exercised collateral-order jurisdiction, affirmed immediate appealability, held that the Commonwealth could subpoena Berger as a fact witness to the extent privilege was waived, but could not retain him as an expert, and remanded for the PCRA court to determine the scope of the waiver.
Remand instructions
The PCRA court must determine precisely which portions of Berger's testimony and related materials remain privileged and may compel Berger to testify only as a fact witness concerning matters within the waiver. The Commonwealth may not consult with or retain Berger as an expert. Jurisdiction was relinquished.